Evidentiary Issues Research Articles

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.

Remarks by Theodor Meron

Thank you, Dean, for your kind remarks. First, a few words about the role of the ICTY. The International Criminal Tribunal for the Former Yugoslavia is, as you all know, the court of law established under Chapter VII of the UN Charter to address grave international crimes that took place in the Balkans in the 1990s. Its mandate, more specifically, is to bring to justice those individuals alleged to be responsible for serious violations of international humanitarian law committed in the former Yugoslavia since 1991, and thus contribute to the restoration and maintenance of peace in the region. The ICTY's indictments have charged 161 persons, including heads of state, prime ministers, army chiefs of staff, interior ministers, and many other high- and mid-level political, military, and police leaders from various parties to the Yugoslav conflicts. Notably, as you all know, the ICTY was the first war crimes tribunal created by the United Nations and the first truly international war crimes tribunal since the Nuremberg and Tokyo tribunals, which were founded in the wake of the Second World War and were, in effect, occupation courts. The establishment of the ICTY and its sister tribunal, the International Criminal Tribunal for Rwanda, in the early 1990s not only helped to lead the way for the establishment of a number of other ad hoc international criminal courts, but demonstrated that the international community was fully committed to ending the impunity for the gravest of international crimes by making international criminal justice a reality. The ICTY and the ICTR were also an important catalyst for the adoption of the Rome Statute establishing the International Criminal Court. In addition, the ICTY has contributed to the international legal system in a far more straightforward manner through its cases and its jurisprudence. In case after case, the Chambers of the ICTY have shown that it is possible and practical to apply international criminal and humanitarian law in actual cases, not just a few times, as in Nuremberg, but repeatedly and in ways consistent with fair trial principles. The ICTY Chambers have construed, clarified, and applied customary humanitarian law, helping to articulate and strengthen norms concerning the protection of civilians and modes of individual criminal responsibility and firmly rooting its jurisprudence in the principle of legality. No less important, the decisions and judgments of the ICTY have also addressed a wide variety of procedural and evidentiary issues by reference to international standards, thus creating--perhaps for the first time--an important corpus of procedural law to which both international courts and national jurisdiction may refer. And even the factual determinations in the ICTY cases have contributed to the international legal system, as in the ICJ's ruling in the Genocide Case, where the ICJ's reliance on factual determinations by the ICTY in the Krstic case proved essential to the conclusions reached by the ICJ. Finally, the ICTY has made, and continues to make, important contributions to the strengthening of competent national judicial systems and the rule of law in the region of the former Yugoslavia. Indeed, thanks in great part to the ICTY's initiative and the support of the international community, specialized mechanisms for war crimes prosecutions have now been established in Bosnia and Herzegovina, Serbia, and Croatia, including the Special War Crimes Chamber in Sarajevo. Meanwhile, the training of legal professionals and witness support staff in the region by their ICTY counterparts has facilitated the implementation of international standards and best practices within the local judiciaries. These developments, while taking place on a national level, contribute in a meaningful way to global goals concerning the rule of the law. I turn to the implications of collocation at The Hague of tribunals and dynamics among courts situated at The Hague. …

United States – Subsidies on Upland Cotton Recourse to Article 21.5 by Brazil, WT/DS267/AB/RW (2 June 2008)

AbstractTwo of the four issues in this Appellate Body Report concerned the proper scope of Article 21.5 DSU compliance panel proceedings; the other two issues concerned the Appellate Body's review of the Panel's use of evidence. On the Article 21.5 issues, the Appellate Body essentially ruled that an Article 21.5 compliance proceeding could evaluate the WTO consistency of: (i) the entirety of an implementation measure (including parts of the measure that did not specifically implement DSB recommendations and rulings) and (ii) new subsidy grants made under a program in respect of which prior subsidy grants had been found to cause serious prejudice so as to determine whether the new grants also resulted in serious prejudice. On the evidentiary issues, the Appellate Body upheld the Panel's conclusions, although it modified certain of the Panel's reasoning. Probably the most interesting aspect of the case was the substantial deference showed by the Appellate Body to the Panel's consideration of causation and non-attribution issues. This deference was striking compared to the lack of deference that the Appellate Body has given to national authorities on those issues. We detect, however, a welcome interest on the part of the Appellate Body to require the use of analytical tools on the part of panels evaluating serious-prejudice cases.

De nuevo, los hechos en serio

Este ensayo es la continuación de un artículo titulado «Taking facts seriously», en el que se argumentaba que el tema de la prueba y la determinación de los hechos requiere un lugar más destacado en el Derecho. El objetivo que se propone el autor en esta ocasión es el siguiente. En primer lugar, plantear nuevamente la tesis original y argumentar que merece ser atendida porque el estudio de la prueba es importante para entender el Derecho y para la práctica jurídica. En segundo lugar, examinar de qué manera se puede construir un curso sobre la prueba en condiciones de sobrecarga del plan de estudios y de desatención de las cuestiones probatorias en otras partes del mismo. En tercer lugar, mostrar algunos aspectos en los que el reciente surgimiento de la prueba como un ámbito multidisciplinario puede afectar el estudio y la enseñaza de la prueba en el Derecho.

Comments on the Paris Court of Appeal Decision in SNF v. International Chamber of Commerce

With the purpose of protecting the users of International Chamber of Commerce (ICC) arbitration services, the Paris Court of Appeal found that the exclusion of liability clause provided under Article 34 of the ICC Rules is null and void under French law as it authorizes the arbitral institution not to perform its main contractual obligation to organize and administer the arbitration proceedings. Thus, the ICC may be found liable under French law for breaches of its obligations under its contractual relationship with the parties to the arbitration proceedings. However the reinforcement of the control exercised over the proper performance of the arbitral institution’s obligation is balanced by the fact that for the institution’s liability to be effective, there is an evidentiary issue which may be difficult for the parties to establish.

Evidentiary Issues in Housing Court

Evidentiary Issues in Housing Court

Litigating Sex Crimes in the United States: Has the Last Decade Made Any Difference?

This comprehensive article reviews the history of advocacy on behalf of adult and child female victims of rape and other sexual assaults, focusing on both long term and short term trends. The first section provides statistical information about victimizations, rape reporting and prosecutions over the last 15 years. The second section explores the variety of issues that arise in the context of rape shields, including the extent of admission of evidence of prostitution and promiscuity, and urges that judges be required to find preliminary facts by a clear and convincing evidence standard before admitting any evidence of the complainant's sexual life that the defense claims is not barred by a rape shield. In addition, a reverse balancing test should also be required prohibiting such evidence of a sexual nature unless its probative value substantially outweighs the danger of harm to the complainant or unfair prejudice to any party. The author argues that these restrictions do not violate the Confrontation Clause.The next major section discusses the admission of the defendant's prior acts to prove propensity and lustful disposition. The author does not support the general admission of propensity evidence, but favors a flexible approach to the admission of Rule 404(b), particularly in child abuse cases, which is currently the prevalent approach. To the extent that propensity evidence is generally permitted, such as under the Federal Rules and in California, the author would also subject its admission to a clear and convincing evidence standard. Other topics addressed include rape counselor privileges; fresh complaint; DNA database issues, Sexual Abuse Response Teams and the use of forensic nurses.The article also explores how the rights of crime victims affect trials of sex crimes, and urges that more attention be given to providing legal assistance to child victims of sexual assaults. The article concludes by looking at evidentiary issues in child abuse cases, such as competency, remote testimony, expert testimony, and discusses the child friendly courtroom in light of Crawford's ban on testimonial statements in the absence of a declarant who has been subjected to cross examination.

FLUCTUATING EVIDENTIARY STANDARDS FOR SELF-DEFENCE IN THE INTERNATIONAL COURT OF JUSTICE

During a debate at the 100th annual meeting of the American Society of International Law in 2006,1 passing reference was made by one of the participants to the 2005 Democratic Republic of the Congo v Uganda merits judgment of the International Court of Justice (ICJ).2 Specifically, this decision was cited with regard to the evi dentiary standards employed in determining international legal questions, parti cularly those involving the use of force. The claim was briefly made that, in the view of the speaker, the DRC v Uganda decision 'set out' such evidentiary standards in this context 'in accordance with normal practices.'3 In the same year, it was noted in an article in the European Journal of International Law that the DRC v Uganda deci sion offered a 'ray of hope' with regard to understanding evidentiary standards in the ICJ.4 At first glance, these high profile comments are understandable, given that the ICJ allocated a large amount of the DRC v Uganda judgment to evidentiary issues relating to the use of force. Indeed, more of the judgment was devoted to evidentiary questions than in any use of force decision since the Corfu Channel case of 1949.5 However, the evidentiary standards applicable to the law on the use of force, as with international law more generally, remain extremely unclear. It is manifestly incorrect to say that the DRC v Uganda decision 'set out' an evidentiary standard for legal assessment. Moreover, in the important context of the law governing self-defence, not only did the DRC v Uganda decision fail to clarify the existing situation with regard to evidentiary standards in the ICJ, in several passages, it contradicted the standard that

The Challenges of Representing Detained Non-Citizens in Expedited Removal Proceedings from the Perspective of the Dickinson School of Law Immigration Clinic

Persons deprived of their liberties as a result of administrative detention for immigration reasons face a multitude of serious challenges. There is currently no recognized right to the government-appointed representation in immigration proceedings. As a result, on a very small percentage of immigrants obtain pro bono or any other kind of legal representation. This problem is compounded by the fact that most immigration detainees are detained in remote rural areas where the private bar is virtually unavailable. Those who are fortunate to obtain pro bono or other types of legal representation also face some serious challenges at the different stages of the deportation or removal proceedings. This article discusses the challenges of representing detained non-citizens in deportation proceedings from the prism of the Penn State Dickinson School of Law's Immigration Clinic (DSL Immigration Clinic). The discussion is presented in a continuum. Most of the immigration detainees are placed in deportation proceedings after serving a state or federal criminal sentence. What transpires in the criminal proceedings often carries serious immigration consequences. As such, the continuum must necessarily begin with a discussion of the challenges faced in deportation proceedings. These challenges are discussed under the title Pretrial Challenges in Part II. Part III deals with the challenges associated with the merits hearing in the removal proceedings, including procedural and evidentiary issues. Part IV outlines post trial challenges, including prolonged detention and the complexities of obtaining judicial review. Part V provides a brief conclusion.

Expert Testimony on Psychological Injury: Procedural and Evidentiary Issues

This article introduces psychologists to aspects of the legal process most pertinent to their role as expert witnesses in civil litigation. It summarizes the role of psychological evidence in the adjudication of common law tort claims, the structure of the court system, and the stages of the litigation process. It also explains the various roles a psychological expert may play during litigation and the implications of those roles for expert confidentiality and disclosure. The article then provides an overview of legal policy governing the admissibility of psychological expertise, especially as admissibility is affected by the “Daubert” standard applied in most North American courts.

Evidentiary Issues in the ICJ's Genocide Judgment

Despite the commitment by the International Court of Justice (ICJ or the Court) in clarifying underlying methods and guidelines of its approach to fact-finding and evidence, it can be doubted whether the judgment delivered in the Bosnia and Herzegovina v. Serbia case genuinely marked a decisive step towards a more transparent and reliable methodology for evidentiary matters. Behind the formula of ‘fully conclusive evidence’, when dealing with Articles II and III of the Genocide Convention the Court adopted for all practical purposes a typical criminal law ‘beyond any reasonable doubt’ standard of proof. By this choice the Court upheld in substance the argument put forward by Serbia that even if the questions of state responsibility for acts of genocide are not excluded by the scope of the Convention, they must nevertheless be judged by the same parameters of individual criminal responsibility. In reaching its conclusions the Court relied heavily on the jurisprudence of the ICTY, both as regards the ascertainment of facts and their legal qualification. It remains to be seen whether in future cases the Court will be able to adopt a similar criminal court posture, and whether it will be similarly prepared to rely on the findings of other international tribunals such as the International Criminal Court, which is not established by the Security Council.

Prevalence, Use, and Evidentiary Issues of Digital Evidence of Cellular Telephone Consumer and Small-Scale Digital Devices

ABSTRACT Digital systems are found in a number of casual consumer tools, including cellular telephones. Their prevalence in society is matched by a growing presence as evidence in civil and criminal court cases. The current survey research suggests that cell phones and their potential evidence may be found in over half of all violent crime and even more substantially in drug crimes in some jurisdiction. The police commander respondents to this survey reported that cell phones had been used as evidence via lay testimony and expert analysis in their jurisdictions. Such evidence may face increasing judicial challenges in the future as the specialized nature of the analysis, even with commercially available, easy-to-use practices, goes “well beyond that of the average layperson.” Digital forensics analysts must be prepared to provide both proper lay testimony on cell phones as well as details and justifications for their own tools, techniques, and qualifications as required by Daubert and Federal Rule of Evid...

The Political Morality of Evidence Law

This review essay discusses Alex Stein's recent book Foundations of Evidence Law. It focuses on explicating the book's general normative framework and then offers a critique of that framework from within the domain of political morality. Part I discusses Stein's views about the purpose of evidence law and the importance of error allocation. Part II explains how Stein derives his normative principles from probability theory. Part III discusses the book's master principle—the principle of maximal individualization. Part IV explains how this principle operates, along with two additional principles (``equality" and ``equal best"), to regulate evidentiary issues. Part V evaluates the overall theory in light of two goals that the law of evidence must satisfy to a significant degree in order to be justified in terms of political morality: error reduction and the fair allocation of the risk of errors that do occur. The critique developed in this essay offers some reasons to question the extent to which Stein's theory would achieve either goal. The general theme of the critique is that a greater focus on the epistemology of proof would also lead to a more morally justified proof process, and thus that the epistemic and moral domains are more intertwined than the book supposes.

K–12 Race-Conscious Student Assignment Policies: Law, Social Science, and Diversity

This fall, the Supreme Court will consider the constitutionality of race-conscious K–12 student assignment policies. At a time when schools nationwide have become more racially isolated, some districts have used such policies to mitigate segregation. This article examines these policies in light of the Supreme Court’s recent decisions concerning affirmative action at universities. It explores the legal implications of differences between higher education and K–12 schooling, considering what the differences might mean for particular diversity goals and for policies designed to meet those goals. Beginning with a concise summary of research on the effects of K–12 student diversity, the article places the research in a current legal context, explaining relevant law, what the courts consider important, and how research addresses evidentiary issues.

Inadmissible in Iberia: The Fate of Asylum Seekers in Spain and Portugal

During the past decade both Spain and Portugal have amended their legislation to add an inadmissibility phase to their asylum procedures. These inadmissibility proceedings follow an accelerated pace and include a broad array of grounds for rejecting applications. Asylum seekers deemed inadmissible under these procedures never receive a hearing on the substance of their claims for protection. The expansive inadmissibility grounds in Spain and Portugal prevent an applicant from entering the refugee status determination proceeding if an inadmissibility examiner concludes that the application contains false, implausible, or outdated information or deems the application unfounded. Additionally, an examiner can declare inadmissible an asylum seeker with a well founded fear of persecution if the examiner concludes that the asylum seeker engaged in conduct that precludes refugee status. Despite the complex evidentiary issues raised, the inadmissibility examiners make their decisions on an expedited timetable in circumstances that exacerbate cultural and class biases that undercut reliable decision making. This approach to inadmissibility proceedings thwarts the humanitarian purpose of asylum policy and increases the likelihood of refoulement to persecution, torture, and inhuman or degrading treatment. It deters asylum seekers and violates international obligations to protect refugees. Moreover, it conflicts with the proposed EU Procedures Directive, which limits inadmissibility grounds to ascertaining the state with the responsibility for hearing an asylum request and to repetitive petitions. Consequently, the great majority of contemporary justifications for inadmissibility decisions will be impermissible under the Procedures Directive, rendering much of the current Spanish and Portuguese inadmissibility proceedings unlawful.

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.

Testing the Waters : Aboriginal Title Claims to Water Spaces and Submerged Lands – An Overview

This article provides an overview of some of the intriguing issues raised by Aboriginal title claims to water spaces and submerged lands. While the Supreme Court of Canada articulated a test for proof of Aboriginal title in the 1997 Delgamuukw decision, they did not squarely address questions relating to the viability of such claims outside of the “dry land” context. Recently, a number of Aboriginal groups from across Canada have filed claims seeking declarations of Aboriginal title in areas such as the foreshore, the sea, the seabed, and the Great Lakes and their connecting waterways. Similar claims might also surface in Quebec in the near future, in areas such as the St. Lawrence Seaway. The author guides the reader through international developments in this area, highlights some key legal and evidentiary issues which will require serious reflection in the near future, and provides some final thoughts with respect to the fundamental role which the goal of reconciliation and the principle of consultation will undoubtedly play in Aboriginal title cases to water spaces and submerged lands.

EMPIRICAL AND ETHICAL PROBLEMS WITH CUSTODY RECOMMENDATIONS:

This article proposes a four‐level model of clinical inferences to analyze the psychological evaluation process in custody matters. At each level the authors summarize the status of the relevant psychological literature and conclude that, as clinicians respond to the ultimate issues (e.g., who should be the custodial parent) the empirical foundation for such conclusions is tenuous or non‐existent. A jurisprudence argument is also made that such opinions should be routinely excluded from the fact‐finding process. Given the significant potential for specific custody recommendations to limit personal liberties and the trajectory of a child's life, the paucity of relevant research available in this area, and profound evidentiary issues, such recommendations should be viewed as ethically inappropriate. A model for what clinicians can ethically say to courts is proposed.

Do Merger Efficiencies Receive “Superior” Treatment in Canada? Some Legal, Policy and Practical Observations Arising from the Canadian Superior Propane Case

In the last few years, the role of efficiencies in merger review has become a topic of great interest within the antitrust community, particularly in light of the recent U.S. Heinz/Beechnut babyfood decision, the European Union GE/Honeywell decision and the Canadian Superior Propane decision (perhaps the most comprehensive review of efficiencies in the context of the creation of an otherwise “anti-competitive” merger). Using the Canadian Superior Propane case as a springboard, the authors examine many of the legal, policy and evidentiary issues that may arise when the parties to a merger seek to argue the pro-competitive and efficiency-enhancing elements of their transaction before a competition authority. In particular, the authors present a comparative review and analysis of the role of merger efficiencies in each of Canada, the United States and the European Union, including the types of efficiencies that may or may not be considered by competition authorities in merger review, the different methods that may be adopted in balancing efficiencies against the anti-competitive effects of a merger, and some of the practical and evidentiary issues faced by merging parties when claiming efficiencies.

The Evidentiary Issues Arising from the Proposed Use of the Satellite Based Vehicle Monitoring System and Electronic Logbooks in the FishCAM Project within the European Union

This paper examines the admissibility and probative weight of evidence derived from software on board fishing vessels in several jurisdictions within the EU and defines the legal obstacles and likely impediments to its value. Furthermore, the study describes and analyses the legal situation in the different EU member states regarding the use and legal acceptance of evidence derived from electronic sources and data contained in electronic documents. The study also considers the practice among public authorities in certain European States to adopt electronic documents as official in consonance with the laws implementing the EU directive on electronic signature.