Exclusionary Rule Research Articles

Participation, barriers, facilitators and bullying experiences of trans people in sport and fitness: findings from a national community survey of trans people in Australia.

This study aimed to assess participation rates of transgender and gender diverse (trans) people in sport/fitness activities, compare mental health outcomes for trans people participating in sport/fitness with those who do not and explore internal/external barriers and bullying experiences faced by trans people in sport/fitness contexts. A cross-sectional online survey open to trans people aged ≥16 years living in Australia was conducted between February and April 2023 and it assessed rates of sport/fitness participation, barriers to participation and bullying experiences through multiple-choice questions. Mental health measures comprised the Kessler Psychological Distress Scale (K10) and self-reported history of self-harm and suicidality. Covariate-adjusted binary logistic regression models tested associations between interpersonal factors, sport/fitness variables and mental health outcomes. Of 664 respondents (median age 32 years), around one-third (32.8%) regularly participated in sport/fitness. Common internal barriers to participation included anxiety about others' reactions (63.9%), body dissatisfaction/dysphoria (56.5%) and fears about feeling accepted/affirmed by others (54.7%). Respondents commonly reported experiencing inadequate bathroom/changing facilities (44.4%), exclusionary rules and regulations surrounding gender (36.7%), and invasive or uncomfortable policies or procedures (23.3%). Over one-third (34.4%) of trans people had experienced gender-based bullying or exclusion. Regular sport/fitness participation was associated with significantly lower K10 scores (mean difference=-4.4, 95% CI-5.8, -2.9, p<0.001) and a 40% reduction in odds of recent thoughts of self-harm and suicide (aOR 0.6, 95% CI 0.5, 0.9, p=0.01; aOR 0.6, 95%CI 0.4, 0.9, p=0.02). Trans people face significant barriers to sport/fitness despite experiencing significant mental health and personal benefits from participation. Affirming and including trans people in sport and fitness should be a key priority for sport and fitness federations, organisations and policy-makers.

Exclusion of Evidence and Its Impact on Criminal Justice: a Comparative Study

Abstract This article discusses the exclusion of evidence in the Qatari and US legal systems. It focuses on the legal basis on which the exclusion of evidence is established in these two systems. The Qatari legal system is a dual system between Islamic Sharia and Qatari legislation. It relies heavily on the rule of invalidity, which is a procedural penalty that is applied when the conditions stipulated by the law are violated in relation to the procedure that was conducted. Meanwhile, the US legal system relies on the exclusionary rule, as this rule has a judicial source. This research discusses the exceptions to the exclusion of criminal evidence in the Qatari and US legal systems to explore how effective are these exceptions in achieving a balance between the goal of protecting the rights and freedoms of individuals and the goal of punishing criminals to preserve the stability of society.

Az exclusionary rule doktrína az Amerikai Egyesült Államok büntetőeljárási jogában

The author provides an overview of exclusionary rules in American criminal procedure.

Constructing the Concept of Commissioner Judge in Enforcing the Exclusionary Rules Principle in Indonesia

Pretrial aims to protect human rights from misuse of authority by law enforcement officials. The concept of commissioner judges, which aims to be a substitute for the current pretrial procedure. It is expected to achieve the objectives of criminal procedural law that respects human rights by upholding the exclusionary rules principle. This study aims to understand the role of the commissioner judge in upholding the principle of exclusionary rules to achieve a criminal legal process that respects human rights. Further, a normative approach used statutory, conceptual, and comparative legal approaches. The author tries to discover the concept of a commissioner judge upholding the exclusionary rules principle to assess the validity of evidence obtained by law enforcement officials. It is hoped that the objectives of criminal procedure law that protect and guarantee the interests of human rights can be achieved by the concept of commissioner judge.

디지털 증거 수집과 위법수집증거배제법칙 적용

There is a view that when the exclusionary rule was clarified, it should be automatically and mandatorily excluded from evidence if there is an offense by investigative agencies. I think this is due to the trauma of illegal investigations that have historically existed in Korea, but the benefits to criminals from minor misconduct by investigative agencies are too great. In fact, in South Korea, there are cases where evidence is excluded even when there is evidence of harm or guilt, as a deterrent effect to curb misconduct, making it difficult for victims to seek redress.&#x0D; The exclusionary rule has certainly contributed to the transparency of investigative practices, as law enforcement agencies are more careful in their investigations. However, quasi-appeals and other administrative or civil sanctions can be sufficient deterrents to illegal investigations. As Japan's theory of relative exclusion shows, it is necessary to use relative and discretionary exclusion rather than mandatory and absolute exclusion in terms of the gravity of the offense and the deterrence of illegal investigations. This is especially true in areas where the standards are not yet clear, such as digital evidence.&#x0D; Minor misconduct investigations, especially for digital evidence, are often committed by investigators without recognizing the legality or illegality of the violation. Investigators need to be educated, especially if they have never dealt with cyber crime and only occasionally encounter digital evidence.&#x0D; Just as the responsibility of intent and negligence is differentiated in substantive law, it should not be judged only by the result of a criminal investigation without judgment of intent and negligence in procedural law. Guidelines for search and seizure of digital evidence should be established, educated and publicized to law enforcement agencies. Evidence should not be excluded because it is an illegal investigation, without agreement on the appropriate process, in a vague state, and without providing criteria.

‘The bloody fingers … bear witness’: Sign Language and the Mute Detective in Susan Hopley and The Trail of the Serpent

In her examination of signing characters in works of Charles Dickens and Wilkie Collins, Jennifer Esmail highlights deaf characters’ absence in Victorian fiction. Mutism is more common, for example, in the character of Mary Elizabeth Braddon's working-class, fingerspelling Detective Peters (70, 10n24). Even so, sign language – seen as ‘primitive’ and ‘lacking [in] intellectual […] rigor’ – was rarely represented (Esmail 3). Dickens, Collins and Braddon, proto-detective novelists themselves, were preceded by Catherine Crowe, whose 1841 novel Susan Hopley features Julie le Moine, a female, cross-dressing sleuth whose mutism does not prevent her from testifying using ‘signs’ and ‘the finger alphabet’ (III.100, 125). Julie's undercover work not only crosses class, gender, and genre boundaries, but her non-verbal evidence challenges women's exclusion from ‘“masculine” systems of representation’ symbolised by legal parlance (Irigaray 85). When detective fiction pits the private eye against traditional jurisprudential structures, the courtroom becomes a space where classed and gendered hierarchies inform testimonial evidence, reinforcing exclusionary principles that disenfranchise the ‘Other’. The sign language, fingerspelling and lip-reading of Julie le Moine, Joseph Peters and Richard Marsh's Judith Lee expose ableist and sexist barriers that seek to expunge the detectives from the legal record by excluding them from public speech.

Fruits of the Poisonous Tree – Exclusionary Rule and its Application in India

Fruits of the Poisonous Tree – Exclusionary Rule and its Application in India

A Day Late and a Dollar Short: Examining Perceptions of Which Exonerees Deserve Compensation

Many exonerees do not receive compensation from the state after they are released (43%) because most states have exclusionary laws that bar exonerees from receiving compensation (n = 16 states) (Compensation Primer, 2022). This study examined public perceptions of exoneree compensation, exclusionary laws and addressed the broader question of who deserves compensation (according to community members). Online participants (n = 225) read an article about a fictional exoneree who either pleaded guilty or was convicted by a jury trial and who either did or did not have a subsequent conviction. An exoneree with a subsequent conviction was perceived as less deserving of financial compensation (roughly $8,000 less annually) and less deserving of support services. It was rated less positively than an exoneree who did not have a subsequent conviction. No differences were found between an exoneree who pleaded guilty and an exoneree who was convicted by a jury trial, demonstrating little impact of this common exclusionary rule on community members’ perceptions and decisions. Overall, participants overwhelmingly supported exoneree compensation (only 6.7% disagreed). However, there are caveats. Community members are less supportive of compensating exonerees who have subsequent involvement with the justice system. These results illustrate possible biases the public has against an already marginalized population that has experienced a miscarriage of justice. Because public opinion can affect policy change, these results significantly affect state exclusionary rules and exoneree compensation policies.&#x0D;

Unpacking the exclusionary rule of repeated confessions in China

While Chinese law recognises that repeated confessions following an initial confession procured by illegal means should be excluded from trial, the legal doctrine by which China excludes such evidence differs significantly from other jurisdictions. China's approach to the exclusion of repeated confessions is premised on what this paper loosely terms a ‘principle plus exceptions’ model, in which a general exclusionary rule for repeated confessions is supplemented with a closed list of exceptions. A study of the 113 cases on China Judicial Documents Network highlights the difficulties in the operationalisation of the ‘principle plus exceptions’ model, with the result that the law on repeated confessions is inconsistently applied. In response, this paper proposes that China should adopt a flexible and open-ended case-specific analysis, whereby courts examine the admissibility of the repeated confession based on the circumstances of each case and various factors. In the end, this paper advocates for essential institutional reforms aimed at bolstering the judicial authority of the Chinese judiciary and facilitating the advancement of evidence law reform in China.

The Admission of New Prosecutorial Evidence in International Criminal Retrials

Abstract On 31 May 2023, the Appeals Chamber of the International Residual Mechanism for Criminal Tribunals (IRMCT) delivered its judgment in Stanišić and Simatović, marking the conclusion of the first full retrial in the history of international criminal law and providing occasion to reflect on how retrials before the International Criminal Court and other international criminal tribunals ought to be conducted. The focus of this article pertains to the Trial Chamber’s approach to the admissibility of new prosecutorial evidence during the course of the retrial, and specifically, its decision to exclude all new prosecutorial evidence from the scope of the retrial, unless exceptional circumstances justified its admission. This article questions whether the adoption of this exclusionary rule was a valid exercise of the Trial Chamber’s discretion and, from a normative standpoint, whether such a decision was and remains a desirable approach to the admissibility of prosecutorial evidence in international criminal retrials. This article argues that despite the strong and persistent objections raised by the prosecution during the Stanišić and Simatović retrial, the exclusionary rule constituted a valid exercise of the Trial Chamber’s powers and could serve as a blueprint for the admissibility of new prosecutorial evidence in potential future retrials.

Theorising Necromale Through Killable Female: A Study of Murder 2 and Article 15

This essay studies the construction of killable female bodies via two Hindi films: Murder 2 (2011) and Article 15 (2019) and theorises a necromale—male murdering agent following a violent sovereign ethos, which, in turn, illuminates sovereign Indian masculinity in crisis. One of the many romances of the idea of sovereignty and ideals of self-rule is the construction of imaginary adversaries whose violent execution serves the sovereign purpose. This essay extends the rhetoric of sovereignty to include male violence in the study of alleged enemies—dead girls. If sovereignty means power to kill or let live, then in what ways does that definition play out in these films through gender violence? The essay expands on the exclusionary principles of killability—secrecy around murder investigations, hasty cremation/burial, and patriarchal and casteist public discourses that serve exclusively to make the male Indian sovereign violence against the victims doubtable. The killable females became the potent ground where caste, patriarchal, and national ideologies combine, enabling the Indian male sovereignty to deploy its power to kill. However, this sovereign/casteist murderous male, whom the essay establishes as a necromale, is killable in return. The male power to kill emerges as a suicidal martyrdom because the state’s right to kill ultimately reserves the monopoly on violence.

Standing and Pre-trial Misconduct: Hypocrisy, ‘Separation’, Inconsistent Blame, and Frustration

Existing justifications for exclusionary rules and stays of proceedings in response to pre-trial wrongdoing by police officers and prosecutors are often thought to be counter-productive or disproportionate in their consequences. This article begins to explore whether the concept of standing to blame can provide a fresh justification for such responses. It focuses on a vice related to standing—hypocrisy—and a related vice concerning inconsistent blame. It takes seriously the point that criminal justice agencies, although all part of the State, are in real terms separated from each other, and analyses the so-called separation thesis (or theses). It concludes that hypocrisy and inconsistent blame arguments could plausibly justify exclusion and stays only in relation to lower-level offending, and even there only indirectly. This is in the sense that exclusion and stays are expressions of judicial frustration with other bodies for their failure to take pre-trial wrongdoing seriously.

Research on Exclusionary Rules of Illegal Speech Evidence

The rule of illegal speech evidence was established late in our country, and the phenomenon of obtaining illegal speech evidence through torture and other illegal means has always existed in the practice of criminal proceedings. At present, our country has not established a unified and standardized standard for the exclusion of illegal speech evidence. Starting from the general theory of illegal speech evidence, this paper introduces the status quo and difficult problems of illegal speech evidence in our country through the proof standards of illegal speech evidence exclusion system, such as the basis, inadmissibility and exclusion value, so as to continuously improve the rules of illegal speech evidence exclusion and continue to exert judicial fairness and justice. To safeguard the basic rights of citizens and promote the development of civilization by law in our country.

FROM EVIDENTIAL DATA TO EVIDENCE: PRODUCTION, ADMISSION AND EVALUATION OF EVIDENTIAL DATA IN THE JUDICIAL PROCESS OF PROOF

The objective of the present study was to understand how the courts process evidence in criminal proceedings to establish disputed questions of fact. The present study, after deploying doctrinal research methodology, found that the criminal procedure code (hereinafter CrPC), Qanoon e Shahadat Order (hereinafter QSO), the police rules and the high court rules regulate the production of evidence in the courts. The study also found that the courts admit evidence by considering the relevancy of evidence, exclusionary rules of evidence and the procedural rules related to collection and recording of evidence. Moreover, the study found that the courts consider the quantity and the quality of evidence while evaluating the evidence. In addition, the study found that the courts draw inferences by using deductive, inductive, and abductive methods of drawing inferences from evidence. The study also found that generalization played a central role in all the three methods of drawing inferences. It is expected that the present study will clarify the legal framework dealing with processing of evidence in criminal cases. Keywords: Admission of Evidence, Evaluation of Evidence, Generalization, Process of Proof, Production of Evidence. Relevancy of Evidence.

Kriteria Alat Bukti Elektronik yang Sah dalam urgensi pembaharuan KUHAP

&lt;div class="page" title="Page 1"&gt;&lt;div class="layoutArea"&gt;&lt;div class="column"&gt;&lt;p&gt;&lt;span&gt;The background of this journal writing is the absence of clear provisions in the Indonesian Criminal Procedure Code (KUHAP) or other specific laws that comprehensively regulate the criteria for valid electronic evidence. Therefore, a legal reform is needed in Indonesia's national criminal procedure law that is more relevant in addressing the current legal developments. Through legal research methodologies such as the statutory approach, case approach, historical approach, comparative approach, and conceptual approach, the author identifies the importance of reliable, credible, relevant, and material requirements in determining the criteria for valid electronic evidence. Furthermore, the acquisition of such electronic evidence should also adhere to the principles of Exclusionary Rules in order to uphold human rights. Subsequently, the Draft Criminal Procedure Code (RUU KUHAP) has regulated electronic evidence, which was previously not addressed in the previous version of the KUHAP. Thus, the importance of KUHAP reform is to establish a fair and adversarial criminal procedure legal principle. &lt;/span&gt;&lt;/p&gt;&lt;/div&gt;&lt;/div&gt;&lt;/div&gt;

Psychiatric comorbidity: a concept in need of a theory.

Despite being a relatively new concept, psychiatric comorbidity, i.e. the co-occurrence of two or more mental disorders, has become widespread in clinical practice and psychiatric research. In this article, we trace the origin of the concept of psychiatric comorbidity, discuss the conceptual literature and point to basic problems concerning inadequate definition of the concept, differential diagnostic issues, and reification of mental disorders. We illustrate how these problems may have consequences for diagnostic assessment in current clinical practice and psychiatric research. To address some of the problems related to psychiatric comorbidity, we discuss potential principles for assessing psychiatric comorbidity. Inspired by Feinstein's original concept of comorbidity in general medicine and his differential diagnostic principles, we emphasize the importance of independence of mental disorders when assessing psychiatric comorbidity. We suggest that knowledge of trait v. state conditions and of the multitudinous clinical manifestations beyond what is captured in the diagnostic manuals may be helpful for assessing the independence of mental disorders and thus psychiatric comorbidity. We further argue that a more hierarchical diagnostic system and explicit exclusionary rules could improve clinical practice and research by reducing informational complexity and combating unwarranted psychiatric comorbidity.

Democratic Performance with the Jana Natya Manch in India

In the winter of 2020, the Jana Natya Manch (People’s Theatre Front), a political performance group and street-theatre pioneer in India, created a new kind of performance in response to current events. The Hindu-nationalist government was then implementing discriminatory laws targeting Muslims. The very constitution of India, a ‘sovereign, socialist, secular, democratic republic’ (Constitution Preamble) was under threat. Instead of a conventional street play, the Jana Natya Manch set up a participatory ‘game’ or ‘interactive presentation’ that brought together random and diverse audiences to act, or play, as a united people. The group put into place an inclusive experiment, rather than a didactic one, to counter exclusionary rules and address democratic deficits. Thus this Indian ‘people’s theatre’ produced ‘democratic performances’ that questioned both artistic and political representations. This article, based on fieldwork with the Jana Natya Manch, offers a script translation and an analysis of a new kind of performance developed in active circumstances.

Negotiation and the law of contract – multivalency or incoherence?

Negotiation features in Contract Law in numerous guises. (1) Courts recognise that negotiation may precede agreement (2) Courts will enforce agreements made after a negotiation process where parties intended to enter into legally binding arrangements (3) Courts decline to construe the contract by interrogation of the negotiations which led up to the point of agreement (4) A Court may create imaginary negotiation evidence, gleaning this from a Court simulated negotiation between hypothetical parties to the actual agreement (5) In the event of a breach of contract, a party may establish that the breaching party had actual knowledge of a state of affairs that might be a not improbable result of that breach. That actual knowledge will almost certainly have been created or transferred during negotiations. In this note, I argue that the principles of construction at 3 and 5 above are manifestly mutually incompatible. The logic of my argument is that reconsideration of the exclusionary rule is merited, particularly in the light of multiple exceptions and given the fact that Judges routinely deal with evidence of negotiations. As the actual knowledge rule is unexceptionable and the exclusionary rule highly questionable, coherence can be brought to the law relatively easily.

Agonistic approaches to sexuality: A critical analysis of the conservative mindset

Why do so many people attack sexualities they do not desire and which do not harm them independently of their negative emotions? This is a question to conservative audiences whose anxious reactions this study aims to explain. I introduce seven principles to clarify the situation. The Foundational Principle sketches the basic normative rules. The Hyperbolic Principle recognizes the ever-present exaggeration of sex narratives. According to the Imaginary Principle, extreme imaginings will become too painful to bear. The Principle of de se Reading of Sexual Thought explains contagious emotions and vicarious arousal. The Principle of Motivation argues that sexual images are intrinsically arousing and thus prima facie motivating. According to the Principle of Safety, an unacceptable sexual desire feels unsafe and risky. The Exclusionary Principle says, if a person fails to recognize a given sexual desire, she rejects it. This is the principle that characterizes a conservative reaction to unaccepted sexuality. These negative socio-psychological facts have not attracted adequate attention in sexuality studies. Yet, anxious conservative audiences have the political power to jeopardize liberal policy formation, sex education, and LGBT/BDSM lifestyles. The method of this study is conceptual and philosophical. Its premises and result should lead to empirical verification. At the same time, I suggest a more sophisticated conceptual and linguistic framework for advancing the critical discussion of moral tradition, scientific sexuality studies, and diagnostic art.

Application of exclusionary rule of illegal evidence in investigation stage

Application of exclusionary rule of illegal evidence in investigation stage