Evidentiary Challenges Research Articles

Blue on Black: An Empirical Assessment of Police Shootings

Michael Brown’s 2014 death in Ferguson, Missouri thrust police-officer-involved homicides into the popular consciousness. A series of subsequent officer-involved homicides has kept the issue politically and legally salient. Despite this, official data sources are thin and unreliable. This article presents original analysis of 259 police shooting incidents that occurred in Chicago between 2006 and 2014. The study, based upon publicly available information, suggests a more complex relationship between race, policing, and violence than one might expect from high-profile, officer-involved shootings. As in other large cities, shooting victims are overwhelmingly minorities, with Black persons constituting over 80% of victims. Contrary to intuition, many of the officer shooters are minorities as well. The analysis here suggests that neither racist malevolence nor unconscious bias afford complete explanations for why officer-involved shootings occur. Both of these explanatory frameworks focus too intensively upon individual officers’ decision-making at the expense of institutional and situational dynamics. Scholars and policy makers should focus far more intensively on regulating bad practices, rather than just on disciplining bad officers following egregious incidents. Shifting focus in this way will help identify connections between everyday policing tactics in minority neighborhoods – such as plainclothes policing and aggressive stop and frisk – and officer-involved shootings. The article also concludes that evidentiary challenges mar post hoc review of officer-involved shootings, whether it is in the form of judicial or civilian review. This also underscores the importance of preventive regulation.

Evidentiary Challenges for Public Health Regulation in International Trade and Investment Law

Recent challenges to public health regulation such as Indonesia’s challenge to the USA’s tobacco flavouring ban in the World Trade Organization (WTO), and the WTO and investment treaty challenges to Australia’s plain tobacco packaging scheme, have raised common problems of evidence in the international trade and investment law regimes. Responding states are faced with high expectations in justifying their public health measures with empirical evidence connecting the measure with its purported health outcomes. This article compares approaches to evidence in international trade and investment law and seeks to derive lessons for policymakers in developing public health regulation with potential trade and investment treaty challenges in mind. The article reflects on the kinds of evidence needed to successfully defend such challenges and the appropriate approach to assessing such evidence in disputes in these two fora.

Revising as Reframing

Peer review guides the intensive reworking of research reports, a key mechanism in the construction of social scientific knowledge and one that gives substantial creative agency to journal editors and reviewers. We conceptualize this process in terms of two types of challenges: evidentiary challenges that question a study’s methodology and interpretive challenges that question a study’s theoretical framing. A survey of authors recently published in Administrative Science Quarterly finds that their peer review experience was dominated by interpretive challenges: extensive criticisms, suggestions, and subsequent revision concerning conceptual and theoretical issues but limited attention to methodological and empirical aspects of the work. Salient differences between original submissions and published papers include intensive reworking of theory and discussion sections as well as growth and turnover in citations and hypotheses. We consider implications of the dominance of interpretive challenges in successful revision and possible sources of variation across scholarly fields.

Why the Shift? Taking a Closer Look at the Growing Interest in Niche Markets and Personalized Medicine

Pharmaceutical research and development is increasingly focused on niche markets, most notably treatments for rare diseases and “personalized” medicine. Drawing on the results of a qualitative study of 34 key Canadian stakeholders (including drug regulators, funders, scientists, policy experts, pharmaceutical industry representatives, and patient advocates), we explore the major trends that are reportedly contributing to the growing interest of the pharmaceutical industry in niche markets. Informed by both these key informant interviews and a review of the relevant literature, our paper provides a critical analysis of the many different—and sometimes conflicting—views on the reasons for and extent of the shift toward niche markets. We consider some of the potential advantages to industry, as well the important implications and risks that arise from the increasing pursuit of niche markets and pharmacogenomics. While there are many potential benefits associated with targeted therapies and drug development for historically neglected rare diseases, niche market therapies also present evidentiary challenges (e.g., smaller clinical trials and enrichment strategies) that can make approval decisions difficult, and uncertainties remain around the true benefits of many therapies.

Ensuring Experience Remains the Life of the Law: Incorporating Military Realities into the Process of War Crimes Accountability

International criminal responsibility for war crimes is today a firmly entrenched component of the IHL compliance mosaic. Investigation, prosecution, conviction, and punishment of individuals who violate IHL – the internationally adopted rules that regulate armed conflicts - is expected to produce both retributive and deterrent effects, ostensibly enhancing the probability of legal compliance in on-going and future armed conflicts. Military commanders are and must remain the focal point for this accountability process; a focal point that is logically aligned with the unique authority of commanders to train, direct, and oversee the conduct of subordinates armed with immense lethal capability, and entrusted with the authority to make judgments that have profound life and death consequences. While may all be unremarkable, and perhaps even axiomatic, it also produces an increasing complex process of criminal application of an operational regulatory regime. And this complexity will only increase with the inevitable extension of international criminal accountability to situations of complex tactical and operational judgments – most notably targeting judgments. Evidentiary and procedural challenges associated with war crimes prosecutions will be magnified by such cases, cases that will require tribunals to sift through the proverbial ‘fog of war’ in an effort to identify the outer limits of reasonable operational and tactical judgment.Cases involving complex battlefield decision-making therefore highlight important questions over the intersection of battlefield regulation and doctrines of criminal responsibility, and how such prosecutions will produce credible and reliable outcomes. More specifically, how, if at all, does the so-called ‘fog of war’ impact the adjudication of guilt, and how can the touchstone of reasonableness be applied in the criminal accountability process? This Essay focuses on these and other related questions in an effort to generate a more extensive consideration of interplay between operational planning, real-time mission execution, and the criminal accountability process. The ultimate thesis of the Essay is that improving the synchronization between the regulatory and accountability domains of IHL will inevitably enhance the efficacy of the law in both domains, and contribute to the overall credibility of prosecutorial outcomes.

Evidentiary challenges in comparative effectiveness research

“What healthcare treatment works best, for whom, and under what circumstances?” is the central question of comparative effectiveness research (CER). This paper first defines CER, and then briefly discusses its policy origins, the Patient-Centered Outcomes Research Institute (PCORI), and the relationship of CER to other evidence-based medicine approaches. PCORI methodology standards for the conduct of CER are described. Specific evidentiary challenges including the need to include observational data, and assess heterogeneity of treatment effects, are identified. The last section of this paper focuses on how evidence from a systematic review, a common study design in CER, is interpreted for decision-making. Methods for assessing the strength of evidence across a group of studies are described. These assessments are used for decisions at the individual patient level as well as the public health perspective, for example to determine clinical practice guidelines. The challenges inherent in these methods are presented, along with the results from a reliability study. The implications for CER decisions and decision-makers are important to consider.

Renaissance Impostors and Proofs of Identity by Miriam Eliav-Feldon (review)

Reviewed by: Renaissance Impostors and Proofs of Identity by Miriam Eliav-Feldon Mark S. Dawson Eliav-Feldon, Miriam, Renaissance Impostors and Proofs of Identity, Houndmills, Palgrave Macmillan, 2012; hardback; pp. viii, 292; R.R.P. US$92.00, £60.00; ISBN 9780230547063. This study examines the phenomenon of assumed identity, of passing for somebody one was not, in early modern Europe. It seeks to explain why [End Page 205] people perpetrated such frauds and how the powerful improvised technologies of authentication. Imposture flourished, or doubts about social authenticity were abnormally high in this period, for several reasons. However, the root cause, Miriam Eliav-Feldon contends (in Chapter 2, disproportionately the longest), was religious strife, compounded by serial failures in authentication; those who had claimed or been judged to be of one community were eventually found to belong to another confession or class, prompting further waves of anxiety that all were not as they seemed. The conversion of Jews and Muslims in Spain, Catholics in Protestant territories, and Europeans in the Moorish Mediterranean, triggered religious dissimulation and panic about fifth columns and raised questions concerning the nature of faith and the reliability of knowledge based on sensory perception. Paradoxically, the wars of religion within and without Christendom, between the later fifteenth and early seventeenth centuries, lent plausibility to impostures and otherwise help explain the credulity of contemporaries who took the bait. For example, in the early 1520s, David Reuveni presented himself as the princely emissary for several Tribes of Israel. Both Portuguese and Venetian authorities welcomed him because of the implications for their continuing – yet at times apocalyptic – struggle against Suleiman I. Similarly with the pretence of those alleging they came from the realm of Prester John to aid Western Christendom in its time of need. Layers of deception piled one on top of the other, and this circumstance seems to be the justification for discussing other sorts of impostor: sturdy beggars, false saints, witches, and gypsies (Chapters 4–5). Thus indigents could themselves pretend to be the victims of Ottoman tyranny. Witches masqueraded as proper Christians and mystics were exposed as servants of Satan. And there are suggestions that the Roma presented themselves as pilgrims before they became vagrant. Fatal assumptions were made about their true origin and character: assumptions the Roma may occasionally have owned but which were otherwise foisted on them and appropriated by false gypsies, serving only to tarnish further their reputation. The official response (Chapters 6–8) was varied. Some sought to cure the epidemic with a regime of corporal punishment. Prevention, or at least faltering attempts at it, relied upon policing the appearance of the well-to-do courtesy of sumptuary legislation and watching for bodies marked by earlier run-ins with the law. As more people were thought to be dressing above their station in the context of urban anonymity, or otherwise disguising past stigmas, attempts were made to use bureaucracy rather than bodies to prove identities. Veritable (and verifiable) paper trails were gradually established with central registers, licences and passports, health certificates, and university testimonials. [End Page 206] Citing examples from across Europe, Eliav-Feldon draws extensively on scholarship in several languages. Notwithstanding its ambitious scope and the evidentiary challenges, some will find this collation not quite to their taste. The Introduction avers that this is not a study of identity. However, this seems at odds with establishing imposters’ motives, or arguments for the growing prominence of lineage, and with it the emergence of a racialist mentality. Despite the importance of Spanish edicts concerning blood purity (limpieza de sangre), more than one reference to heraldry’s semiotics (p. 182) would strengthen the case that European elites were preoccupied with who was who. Likewise, consideration of transvestitism, as part of a deliberate fraud, probably requires acknowledgement of ambiguous premodern understandings of sexual difference per se. Notwithstanding some case studies, the book tantalises with terse references to the historiography. Particularly when it comes to the proving of identity, and unmasking impostors, mention is made of archives bearing final witness, but direct quotation from these materials is sparing. This abridges the very processes of identification, of identifying as someone or being identified as somebody else. Some...

The Effect of Legal Culture on the Development of International Evidentiary Practice: From the ‘Robing Room’ to the ‘Melting Pot’

AbstractThis paper draws on some of the preliminary findings of a small pilot study which aimed to discover what evidentiary challenges a range of practitioners with experience of different international trials faced in the cases they were involved in, and what practices were developed to deal with these challenges. The findings in this study are based on the data collected from The Hague-based institutions, the ICC, the ICTY, the ICTY and ICTR Appeals Chamber, and the Special Tribunal for the Lebanon (STL). It is argued that professionals moving from institution to institution are engaged in a process of cross-pollination which itself influences the practices that develop, although a common understanding of certain evidentiary issues in international trials remains fragmented and at times elusive.

Anti-forensic resilient memory acquisition

Memory analysis has gained popularity in recent years proving to be an effective technique for uncovering malware in compromised computer systems. The process of memory acquisition presents unique evidentiary challenges since many acquisition techniques require code to be run on a potential compromised system, presenting an avenue for anti-forensic subversion. In this paper, we examine a number of simple anti-forensic techniques and test a representative sample of current commercial and free memory acquisition tools. We find that current tools are not resilient to very simple anti-forensic measures. We present a novel memory acquisition technique, based on direct page table manipulation and PCI hardware introspection, without relying on operating system facilities - making it more difficult to subvert. We then evaluate this technique's further vulnerability to subversion by considering more advanced anti-forensic attacks.

Psychometric and Evidentiary Advances, Opportunities, and Challenges for Simulation-Based Assessment

This article characterizes the advances, opportunities, and challenges for psychometrics of simulation-based assessments through a lens that views assessment as evidentiary reasoning. Simulation-based tasks offer the prospect for student experiences that differ from traditional assessment. Such tasks may be used to support evidentiary arguments that differ considerably from those typical in assessment. These novel assessment arguments are richer or more nuanced than those commonly used in terms of the targeted inferences about students, the evidence that facilitates those inferences, and the tasks that allow for the collection of such evidence. Driving principles of assessment are reviewed, and their implications for specifying student, task, and evidence models for simulation-based assessments are described. Potential pitfalls in these and related aspects of the assessment development process are described. Strategies for solutions to some of the more imminent challenges to psychometrics for simulations are discussed.

Relative Function: Nuclear Brain Imaging in United States Courts

Neuropsychological testing—medical imaging of the brain structure and function—allows the expert to inform the court on the brain structure and function of the forensic examinee. Supported by extensive clinical use, neuropsychological testing and structural imaging in the form of computerized tomography and structural magnetic resonance imaging have achieved general acceptance in court. However, functional imaging such as functional MRI and nuclear medicine techniques, such as positron emission tomography (PET), have faced more admissibility challenges. While functional imaging is becoming an increasingly important tool in assessing neuropsychiatric illness, we surmise that evidentiary challenges are largely related to the phase of trial in which the nuclear study is offered as evidence. This article will review the basic science of functional nuclear imaging including PET and single photon emission computed tomography. We will then review cases where admissibility of these techniques has been challenged and consider whether and how nuclear brain imaging can influence the outcome of the trial.

Judicial Response to Elder Abuse

ABSTRACTReported cases of elder abuse are increasing throughout the United States. At the same time, identification of elder abuse issues by courts is considered “fair” or “poor.” To address the increased numbers of reported cases—particularly those where the victim is in an ongoing, trusted relationship with his or her perpetrator—the justice system must develop a concerted approach to resolving elder abuse cases. Along with the identification of the various forms and definitions of elder abuse, the courts face numerous challenges including the lack of reliable data and research on this form of abuse; the lack of laws, legal precedent, or appropriate remedies in elder abuse cases; complex evidentiary challenges; issues of victim capacity and victim choice, as well as assumptions about age and aging, limited resources, and the lack of a coordinated community response to elder abuse.

The Nature of International Criminal Law and Implications for Investigations

Violations of international criminal law are rarely committed in isolation. Frequently they are perpetrated in the context of a broader project or a massive upheaval consisting of numerous such violations. The context and scale of these events can create numerous logistical difficulties in conducting investigations. Overcoming such difficulties can consume massive amounts of human, temporal, and material resources. However, in addition to these practical difficulties, other difficulties stem from the law to be applied in such cases. All of these evidentiary challenges are in addition to those inherent in any criminal investigation, and they are magnified by the physical environments in which the crimes take place. Notwithstanding the difficulties encountered by the investigators of World War II atrocities, their task was simplified by the fact that the allies had police power throughout Germany after the war ended. This is not the case for today’s international criminal courts. For several years after the establishment of the Yugoslav Tribunal, investigators and prosecutors had little or no access to the crime scenes due to ongoing hostilities or lack of cooperation from local authorities. As this chapter is being written, prosecutors and investigators at the International Criminal Court have been unable to gain access to Darfur more than 18 months after the UN Security Council referred the situation there to the Court.Any international criminal investigation must take into account this combination of legal, political, and logistical factors. A thorough understanding of international criminal law assists in the appreciation of their interaction.

Evidence Issues in Domestic Violence Civil Cases

New laws and policies aimed at protecting victims of domestic violence have been adopted across the country over the last twenty years.The legal approaches taken to protect battered women and control family violence have resulted in significant changes in family law. New laws include statutes permitting civil protection or restraining orders, and laws requiring that domestic violence be considered in custody and/or visitation decisions. Both of these types of statutory reforms can provide protection to adult victims of domestic violence and their children. Evaluating a parent's fitness by considering past acts of violence to other family members results in decisions that are more likely to protect children than decisions that discount or disregard spousal abuse. Civil protection orders can provide abused women and their children with a quick and easily accessible remedy that provides housing, financial relief, and an order for custody. While there is some controversy about the effectiveness of such orders in cases involving severe violence, most advocates and scholars agree that these statutes can make some improvement in the lives of women and children.The effectiveness of these new laws in reducing the incidence of domestic violence, however, has been limited for a number of reasons. One of the major barriers to using these laws to protect women is that proving domestic violence in court is difficult. First, the victim is often the only witness to the abuse. For a variety of reasons, victims are reluctant to testify against their abusers and pursue civil and criminal remedies. Even when they do testify, women who experience domestic violence are often not believed. Despite changes in legal and popular conceptions of domestic violence, judges and juries continue to ignore or discount victims' testimony about the abuse.It is, therefore, essential for practitioners to be able to introduce as much evidence of the abuse as they can gather. Established principles of evidence law, however, present particular challenges in domestic violence litigation. While there is expansive literature on evidentiary challenges in criminal prosecutions for domestic violence, there is very little written about the way courts have looked at particular evidentiary issues in civil cases where domestic violence is at issue. This article is intended to assist practitioners in anticipating and responding to some of the evidentiary challenges in civil cases in which relief is sought for the victims of domestic violence.First, expert testimony is often necessary to dispel common myths about battered women and to educate judges and juries about the dynamics of domestic violence. Recent case law, however, has limited the admissibility of 'non-scientific' expert testimony and may make it difficult for practitioners to use experts in their cases. In addition, particular evidentiary issues arise when victims are pursuing both criminal and civil remedies against the batterer. This article will explore the ways in which evidence issues may benefit and inhibit civil actions arising from the domestic violence. Finally, we will discuss the difficulties in using prior bad acts evidence. Because batterers tend to engage in repeated acts of abuse, evidence of prior acts may be particularly relevant in proving the extent of harm and predicting the likelihood of future abuse. Traditional principles of evidence law, however, often prohibit the admission of other crimes, wrongs and acts.

The Challenge of Assessing Civic Engagement: What We Know and What We Still Need to Learn about Civic Education in College

In this article the author builds on research from her coauthored 2003 book, Educating Citizens, which reported on a three-year study of civic education on twelve campuses and focused primarily on conceptual and implementation questions involved in civic education.This article takes up two additional and crucial issues: the empirical evidence the project elicited about the effects of these programs and practices on undergraduates, and the evidentiary issues and challenges involved in assessing students’ moral and civic learning. It focuses primarily on key issues involved in assessing students’ moral and civic learning and is intended to help inform and lay the groundwork for further assessment efforts.

The Complications of Early TV

In 1948, after several years of spurning anxious electronic manufacturers, Americans began purchasing TV sets. And Harry S. Truman was among the first to participate in what became the great television boom. That June, a receiver was delivered to the White House. The newest medium fascinated Truman. Even before he obtained his set, the president was asking network technicians how the TV camera worked.1 Although Truman's enthusiasm for household technologies is far less consequential than his foreign policies, historians of international relations would do well to give more attention to the home screen. No other technology penetrated the American home more quickly. By the end of Truman's presidency, one third of all households had televisions. Four years later, as Dwight D. Eisenhower dressed for his second inauguration, TV sets could be found in about three fourths of all American homes.2 That said, the study of television's first years poses severe evidentiary challenges for historians. Back issues of newspapers and periodicals have been preserved. A college freshman can pore over the Washington Post's coverage of the Korean War. Video is another story. Networks and stations aired much of their earliest programming live. As late as October 1955, 77.7 percent of all network programming was telecast live.3 Performances that were recorded by the kinescope process were not always saved. Then, too, the number of TV archives is small and not always scholar friendly. The historian often has to settle for reading transcripts and scripts preserved in individual and corporate collections.

Evidentiary challenges to evidence-based medicine.

The evidence-based medicine (EBM) movement has exerted a strong influence on contemporary medicine. It has been used to define the hierarchy of knowledge in clinical medicine by classifying clinical findings according to the perceived relevance and validity of the respective methodologies of studies from which evidence was collected. In the spectrum of theories of knowledge, EBM predominantly relies on findings obtained from population-derived clinical research. This reliance on knowledge obtained from population studies sharply contrasts with a physiologic model of clinical knowledge advocated by basic science researchers and many clinicians. An apparent schism between proponents of physiologic and population models in the approach to the practice of medicine has been created. This dichotomy between practising physicians and EBM physicians in the approach to clinical knowledge should not be irreconcilable. We advocate a consilient approach to the interpretation of evidence and the integration of medical knowledge. This approach relies on 'linking of facts and fact-based theory across various disciplines to create a common groundwork of explanation'.