Evidentiary Practices Research Articles

Parading the eyewitness: Caste atrocity and the Test Identification Parade

The study of the Test Identification Parade (TIP) within Indian evidence law must be contextualised considering the intensification of atrocities and brutalities against oppressed caste communities in India. Despite the existence of a separate law – Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 – to adjudicate caste-based atrocities, its implementation has been met with severe obstacles. Studying how evidentiary practices encounter the Act reveals how the law of evidence, too, participates in the playing out of a caste crime. It is in this regard that the discussion surrounding the Test Identification Parade must be infused with a political character, surfacing the power relations and structural aspects surrounding testimony and memory within crimes. Through the TIP, evidence law constitutes the nodal site upon which the dominant caste police and judiciary collude to deprive marginalised castes of just outcomes. This piece examines the jurisprudence of the TIP in caste atrocities judgments, in order to investigate the various ways in which the law plays out a caste atrocity.

Remolding the court: The need for forward‐thinking evidentiary and sentencing practices in domestic violence cases with battered women

AbstractDomestic violence is a danger faced by women across the United States. When a woman suffering from battered woman syndrome (BWS) harms their abuser, they are often left with no defense to criminal liability. At trial, they may rely on expert testimony about BWS, but outdated judicial standards could prevent its admission to the jury. To protect these victims from facing life sentences as punishment for saving themselves, New York enacted the Domestic Violence Survivors Justice Act, which has been proven effective and should be adopted nationwide along with new evidentiary practices.

Grasping Psychological Evidence: Integrating Evidentiary Practices in Psychology Instruction

The spread of misinformation has underscored the importance of cultivating citizens’ competency to critically evaluate popular accounts of scientific evidence. Extending the prevailing emphasis on evidence in the natural sciences, we argue for fostering students’ understanding of psychological evidence and its communication in the media. In this study, we illustrate how this goal can be advanced in undergraduate psychology instruction by actively engaging students in evidence evaluation and design. We employed the Grasp of Evidence framework to document students’ evidence evaluation ideals and processes and how these changed over a course in which students engaged in a series of collaborative evidence evaluation and design tasks. Prior to instruction, students exhibited a mechanistic understanding of scientific methods, coupled with substantial reliance on personal experience. Following instruction, students demonstrated three key shifts in grasp of evidence: a shift in perception of the sources of psychological knowledge, a shift in views of scientific objectivity, and a shift in definitions of psychological phenomena. Analysis of students’ collaborative discourse highlighted three design principles that supported increasingly complex understandings of psychological evidence: collaborative critique and redesign of flawed studies, engagement with diverse sources of popular evidence, and confronting elusive conceptual constructs.

Facts do not speak for themselves: Community norms, dialog, and evidentiary practices in discussions of COVID-19 on Reddit.

The present study sought to explore the distinct discourse norms and evidentiary practices in discussions of COVID-19 in four subcommunities on Reddit. Qualitative analysis found that communities differed in the degree to which they reinforce and augment Reddit's platform-wide norms for dialog and evidence use. One of the three communities (r/AskTrumpSupporters) differed from the rest by establishing discourse norms for turn-taking between politically opposed users and structuring dialog around authentic questions aimed at understanding alternative points of view. Quantitative analyses revealed that this community significantly differed from the other communities in the proportion of dialogic exchanges and in the use of evidentiary practices (sourcing, source evaluation, and interpretation of evidence). Excerpts of dialog from this community are used to illustrate findings. We conclude with implications for educators interested in preparing youth to critically engage with scientific information they encounter in public discourse.

2022 Developments in Indiana Evidentiary Practice

2022 Developments in Indiana Evidentiary Practice

Unpacking assertions made by the alcohol industry and how they make them: An analysis of submissions into Australia's National Alcohol Strategy.

Alcohol is a leading cause of morbidity and mortality globally. One significant barrier to the implementation of evidence-based alcohol policy is alcohol industry opposition. Making submissions to national policy processes is one way in which the industry exert influence. The aim of this study was to analyse alcohol industry submissions into Australia's National Alcohol Strategy to determine key assertions made by the alcohol industry and the ways in which they use evidence and refute the effectiveness of public health policies to make their claims. Submissions made by alcohol industry actors (n = 12) were analysed using content analysis to determine key industry assertions. A pre-existing framework on alcohol industry use of evidence was then applied to analyse the evidentiary practices used to make these assertions. Five common industry assertions were identified: 'Drinking alcohol in moderation has health benefits'; 'Alcohol isn't the cause of violence'; 'Targeted initiatives, not population level alcohol policies, are needed'; 'Strong alcohol advertising regulations are not necessary'; and 'Minimum unit price and pricing and taxation policies more broadly are not needed'. The industry systematically manipulated, misused and ignored evidence throughout their submissions. The alcohol industry is misusing evidence in their submissions to government consultations to make their assertions about alcohol policy. It is therefore essential that industry submissions are scrutinised and not accepted on face value. Additionally, it is suggested that the alcohol industry requires a distinct model of governance similarly to that which regulates the tobacco industry to prevent their attempts to undermine evidence-based public health policy.

Konceptualizace právní jinakosti v azylovém dokazování: Od formální k antropologické interpretaci neobvyklých právních autorit

Konceptualizace právní jinakosti v azylovém dokazování: Od formální k antropologické interpretaci neobvyklých právních autorit

Mémoire and Vindicationism in Revolutionary Saint-Domingue

This essay analyzes the genre of mémoire produced by gens de couleur (free people of color) within the colonial and military bureaucracy of revolutionary Saint-Domingue. Building on recent scholarship on Toussaint Louverture’s 1802 “Mémoire du général Toussaint Louverture,” it situates the genre in broader conversation with the mass of bureaucratic and administrative writing in the colony by offering close readings of mémoires from Julien Raimond and André Rigaud. Though written for different purposes, these mémoires evince a shared formal and rhetorical strategy: they present textual evidence and employ forensic rhetoric to refute competing claims and vindicate their cause. By elucidating the generic conventions of the mémoire, this essay contributes to the growing body of scholarship on Black writing that has moved beyond the paradigm of the slave narrative toward other forms and genres of Black protest. In so doing, it refocuses vindicationism on these rhetorical evidentiary practices, rather than on the mythos of romance and romantic overcoming that has categorized vindicationist narratives of the Haitian Revolution.

2020 Developments in Indiana Evidentiary Practice

2020 Developments in Indiana Evidentiary Practice

The weight of criminal judicial evidence

The study is devoted to the current issue of the weight of criminal judicial evidence, which is understudied in the national doctrine. The legislator, having introduced this evaluative concept in 2012 (Paragraph 1, Part 11, Article 1 of 178 CCP), did not provide its normative definition. As a result, there is a conceptual uncertainty, which is inappropriate given the requirements of the rule of law (Article 8 of the Constitution of Ukraine, Article 8 of the CCP). Therefore, the purpose of study is to attempt to formulate a definition of the “weight of evidence”, to propose a scheme of work of a lawyer to determine the signs of this activity phenomenon in situations of making appropriate procedural decisions. The study is based on the activity methodology using a number of special methods – search and bibliographic; semantic; Aristotelian; hermeneutic; historical-legal; comparative-legal; functional analysis; generalisation. The study formulated the definition of the “weight of evidence” as an activity characteristic. The latter is the result of a pragmatic logical and legal evaluation of ad hoc evidence within its totality. Thus, certain evidence is prioritised due to the greater suitability attributed to it by the lawyer to serve as a convincing evidence base of the procedural decision. Therefore, the conclusion is substantiated that the “weight of available evidence” as its activity characteristic is “the fifth element” of the structure of “criminal judicial evidence” along with such characteristics as “credibility”, “admissibility”, “reliability”, and “sufficiency”. The study includes conclusion that the introduction by the legislator in 2012 of the “weight of available evidence” meets the requirements of the evidentiary practice of the modern national adversarial process and the ECHR

Transformative gender justice: criminal proceedings for conflict-related sexual violence in Guatemala and Peru

ABSTRACT Drawing on Andrea Durbach’s work around post-conflict transformative gender justice, this paper asks if criminal justice for conflict-related sexual violence (CRSV) can bring about transformative gender justice in Latin America. The paper offers a comparative analysis of two judicial cases of conflict-related rape: the Sepur Zarco case in Guatemala and the Manta y Vilca case in Peru. The paper argues that domestic courts can have important transformative effects on victim-survivors, their families and on criminal justice practices for CRSV, when international standards for evidentiary practice are adhered to within the specific local context of the case in question, as was the case of Sepur Zarco. If international standards of evidentiary practice are not considered, it is much less likely that such cases are transformative, in fact, the process might do harm, as in the case of Manta y Vilca. Therefore, criminal justice processes are not by default transformative, but good practice can be important to transformative gender justice by providing redress for victim-survivors and affected communities, unsettling hierarchies and building accountability.

2018 Developments in Indiana Evidentiary Practice

2018 Developments in Indiana Evidentiary Practice

2019 Developments in Indiana Evidentiary Practice

2019 Developments in Indiana Evidentiary Practice

СИСТЕМАТИЗАЦИЯ ПРАВА АНГЛИИ В НАЧАЛЕ XVII ВЕКА: ЗНАЧЕНИЕ ИДЕЙ ФРЭНСИСА БЭКОНА

Introduction: in the year of the 460th anniversary of the birth of Francis Bacon, an English philosopher and lawyer, statesman and court practitioner, of special relevance is research into Bacon’s contribution to the development of theoretical and organizational bases of the law reform and the technique of law systematization. In his works, Bacon put forward a set of ideas concerning rationalization of common law and novelization of statutory law in early modern England. Purpose and objectives: to identify the features of legal discourse and dogmatic opposition between legal corporations of lawyers of common and civil law; to analyze their influence on the formation of Bacon’s legal worldview; to determine his contribution to the development of the concept of the ‘reform of law’ and the doctrine of the sources of law in Anglo-Saxon jurisprudence; to evaluate the content of his theoretical treatises and legislative proposals concerning the systematization of statutory and case law in early Stuart England. Methods: in the course of the study of Bacon’s development as a thinker and his career advancement, we employed methodological approaches such as dialectical, cultural, general historical, sociological, dogmatic. When analyzing Bacon’s legal ideas and doctrines, his legislative projects and theoretical writings, we applied both general scientific methods (system-structural and formallogical, inductive and deductive) and special legal methods of cognition: historical-legal, comparative- legal and formal-legal, as well as methods of legal hermeneutics, interpretation, and juris linguistics. Results: we have formulated the definitions of the ‘reform of law’ and ‘systematization of law’ in the context of the legal discourse of early Stuart England and specifically in the framework of Bacon’s teachings; studied the directions of Bacon’s activity aimed at improving the judicial procedure and evidentiary practice, at unifying the law within the Anglo- Scottish union, and also the special model of the gradual reform of English law developed by Bacon. He defined the proper legal and technical conditions for the systematization of law, the necessary elements of legalistics, and the ‘general part’ in the form of a list of legal maxims andregulis juris provided in his translation. Conclusions: according to Bacon, ‘schematism’ of reforming the law involved several successive stages. We have established the following scheme of legal systematization as the ultimate goal of the legal reform according to Bacon’s plan: review and revision of statutory law – chronological incorporation of statutes and precedents – thematic hybrid codification (or consolidation) – creation of a ‘digest’ (corpus of laws) as a final document.

Prioritizing Accountability for Sexual Terrorism on the Global Peace and Security Agenda: An Assessment of the Way Forward from National Prosecutions of Sexual Terrorism by Boko Haram to Security Council Decisiveness

Twenty years after the United Nations (UN) Security Council adopted Resolution 1325 on women, peace and security and twenty-five years after the Beijing Declaration and Platform for Action, the prevalence of sexual violence by parties to armed conflicts continues unabated. Despite the responsibility of every State to address such crimes, conflict-related sexual violence has not been met with corresponding accountability. At the same time, national prosecutions of terrorist activities have largely focused on membership and financing of terrorist groups. Even though the majority of States have endorsed the historic 2013 Declaration of Commitment to End Sexual Violence in Conflict which provides that 'sexual violence committed in conflict must not be viewed as a lesser crime,' accountability for 'sexual terrorism' – defined in the article as conflict-related sexual violence and human trafficking utilized as a tactic of terrorism – has not garnered the same response as other terrorism crimes especially in Security Council resolutions.<br/> With the focus on Boko Haram, this article addresses the practicalities of national investigations and prosecutions in Nigeria of conflict-related sexual violence and human trafficking as acts of terrorism using Nigeria's 2011 Terrorism Prevention Act (TPA) and its 2013 amendment. Although these pieces of legislation make no express provision for accountability for sexual terrorism, the article proposes interpretations of provisions in the TPA that could be utilized to investigate and prosecute sexual terrorism by Boko Haram. The article also addresses some practical challenges faced by federal prosecutors in bringing such charges to court such as evidentiary practices requiring medical corroboration and it explores possible solutions to ensure accountability. Finally, the article juxtaposes Security Council resolutions on terrorist financing with resolutions on the nexus between terrorism, human trafficking, and conflictrelated sexual violence. It observes that, adopting resolutions pursuant to Chapter VII of the United Nations Charter, the Security Council gave terrorist financing a platform on which accountability was mandated. A similar platform has not been afforded to sexual terrorism and the article explores possible reasons. In the author's view, until sexual terrorism is given the same platform as terrorist financing, the push for domestic accountability for sexual terrorism remains a battle on an uphill road paved with good intentions.

DISPARITAS PENAFSIRAN HAKIM DALAM TINDAK PIDANA PENIPUAN YANG TIMBUL DARI PERBUATAN WANPRESTASI

There is a disparity in the interpretation of judges in cases of fraud and default on decisionsbecause in practice there have been many violations committed by one of the parties to theagreement. above is more complicated when there is no understanding among law enforcementofficials in determining the juridical boundaries between Fraud and Default. This research is anormative juridical research with a legal material search. The results showed that the Judges'Interpretation in Fraud Cases Arising From Default Actions in several cases that had beendecided, it appears that the Panel of Judges has a different interpretation regarding the elementsof deception. In the evidentiary practice, there has been inconsistency regarding the interpretation of criminal acts of fraud, especially regarding the elements of deception. There is an inconsistency from the Panel of Judges' disclaimer regarding the criminal act of fraud based on the case studies that occurred, for example in determining whether the fraud occurred before the agreement wasmade or after the agreement was made (tempus delicti).

ANTHROPOLOGY AND WRITING PEDAGOGY

In an increasingly interconnected world, learning how to think anthropologically — learning how to think with difference — should be an essential part of the process of higher education. Yet many students may never take an anthropology course during their undergraduate career. In such a milieu, it is important for anthropologists to both teach and actively participate in the curriculum design of the first-year writing seminars that are part of the core curriculum of many universities and colleges globally. While first-year writing programs predominate in the United States and the United Kingdom, they are growing internationally as well, particularly in liberal arts institutions. In this article I argue that anthropologists should teach first-year writing seminars at their educational institutions for three reasons: first, anthropology as a discipline is ecumenical about evidence; thus it introduces students to a wide range of evidentiary practices early on. This broad-based understanding of evidence facilitates transfer across disciplines. Second, encountering anthropology in a writing seminar attracts students towards pursuing majors, minors and elective classes in the discipline. Finally, through the discipline’s core methodology of participant observation, lived experience, rather than a synthesis of pre-existing texts, is the core source from which arguments and conclusions about the social world are derived. In an increasingly unequal world where representation in, and access to, written text is concomitantly unequal, it is important that students are introduced to multiple ways to understand and think about human experience. The methodology of participant observation destabilises slightly for undergraduate students the authority of written text as the main, and, often singular, source of knowledge.

Gender Justice in Post-Conflict Guatemala: The Sepur Zarco Sexual Violence and Sexual Slavery Trial

Guatemala is breaking new ground with a series of high-impact war crimes prosecutions. The 2016 Sepur Zarco trial was one such landmark case: it was the first time that Guatemala prosecuted wartime sexual violence, and the first time that a domestic court prosecuted sexual slavery as a crime against humanity. This case also set important precedents in legal and evidentiary practice. Based on my direct observation of the Sepur Zarco case, this paper examines the legal practices that placed the women- survivors, not the defendants, at the forefront of the proceedings, and which proved that the state of Guatemala systematically used sexual violence as a weapon of war against women and as a strategy to control the civilian population. It also examines the evidentiary practices in this case, which allowed not only for a conviction more than 30 years after the crimes, but for a broader understanding of the historical context, including land conflict, that led to the atrocities in Sepur Zarco. By piercing the veil of impunity surrounding wartime atrocities and making visible the faces of the victims — indigenous men and women who have historically been relegated to the margins of Guatemalan society — the Sepur Zarco trial is challenging entrenched narratives of denial that have sustained the power of military officials whose influence continues to shape present-day politics in the Central American nation.

Forensic evidence in atrocity trials: A risky sampling strategy?

In the light of the recent judgments issued by the International Criminal Court (ICC), including two acquittals and one very recent condemnation of the accused on all charges, analysing and assessing evidentiary practice before the Court is all the more pressing. This article focuses on one particular type of evidence used by the Prosecution, namely, forensic evidence, to critically review how it has been used so far at the ICC and consider whether the prosecutorial strategy of focusing on a certain sample of crimes is finally paying off.

Meta-Evidence and Preliminary Injunctions

The decision to issue a preliminary injunction is enormously consequential; it has been likened to “judgment and execution before trial.” Yet, courts regularly say that our primary tool for promoting truth seeking at trial—the Federal Rules of Evidence—does not apply at preliminary injunction hearings. Judges frequently consider inadmissible evidence to make what may be the most important ruling in the case. This Article critically examines this widespread evidentiary practice. In critiquing courts’ justifications for abandoning the Rules in the preliminary injunction context, the Article introduces a new concept: “meta-evidence.” Meta-evidence is evidence of what evidence will be presented at trial. I demonstrate that much evidence introduced at the preliminary injunction stage is, in fact, meta-evidence. And I show why meta-evidence that initially appears inadmissible under the Rules is often, in fact, admissible. Applying the Rules at the preliminary injunction stage, then, would not exclude nearly as much evidence as courts may have assumed. I offer two proposals for how courts should use the Rules at the preliminary injunction phase. More ambitiously, I suggest courts should apply the Rules, with an exception directly tailored to the dangers of limiting admissible evidence when the parties are under time pressure. Alternatively, I suggest that courts simply recognize when evidence is actually meta-evidence and weigh it appropriately. They should acknowledge that meta-evidence is probative only to the extent it tends to show the proponent will produce admissible evidence at trial.