Inadmissible Evidence Research Articles

The Formation and Exercise of Conscience in Private and Public Matters

The Formation and Exercise of Conscience in Private and Public Matters Sebastian Walshe O.Praem Introduction The importance of conscience in human life, at the levels of both personal and public morality, is obvious from the fact that the right to act according to one's conscience is often invoked as the justifying reason for many private and public acts. The role of conscience is apparent in private matters, in the intimacy of one's own moral life. Conscience is at work in the hidden recesses of the human heart: it speaks in intimate conversation with God;1 it is consulted in a choice of vocation; it is the stimulus to repentance from a hidden sin. Conscience is the one who watches when no one else is watching, the one who speaks with the voice that only you can hear. Yet it would be a mistake to think that conscience is exercised only in private matters. Acts that have public consequences must also be weighed in the human heart and judged according to one's conscience: conscience is invoked as the reason that someone must go to war or cannot go to war, as the reason for the right to freedom of religion, as the reason for freedom from public compulsion to act, and so on. Conscience speaks in the recesses of each heart, but it often speaks about how to act in very public matters. In short, the role of conscience in morality is universal and necessary. [End Page 275] But there are times when, due to circumstances, conscience is forced to weigh acts that have both a private and a public aspect. And sometimes it happens that there appears to be an opposition between what conscience dictates about the private and public aspects of an act. For example, can a secret told in confidence be made public if revealing it will help someone? Can a lawyer who knows his client is guilty still argue for his innocence before a court?2 Can a priest who knows from confession that a certain person is guilty of a serious sin still administer communion to him? Can a judge or jury member who knows from confidential information or legally inadmissible evidence that someone is innocent pass a guilty sentence, since his sentence must be based upon the evidence before the court? Each of these acts has both private and public aspects, and what conscience dictates in the private realm seems to contradict what conscience dictates in the public realm. For example, due to his private knowledge, the conscience of the lawyer seems to dictate that he not make the guilty appear innocent, yet his conscience also seems to dictate that his public duty before the law is to make as compelling a case as he can for his client's innocence based upon the publicly available evidence. This article aims to expose and apply the moral principles by which one can rightly judge how to inform and exercise conscience in such matters. The thesis that I intend to demonstrate is the following: If the judgment of conscience based upon public knowledge is opposed to the judgment of conscience based upon private knowledge in a public act, then the judgment of conscience based upon public knowledge must be followed instead of the judgment of conscience based upon private knowledge. To show this, I will (1) first examine the nature of conscience and certain of its properties following therefrom, (2) then examine the distinction between a common and a private good, (3) then show that the consideration of conscience about public acts pertains to the common good while [End Page 276] its consideration about private acts pertains to the private good, (4) then argue that conscience binds one who acts as a representative of the community to act for the common good in a public act, and (5) then argue that one who acts as a member of the community should prefer the good of the community to his private good in a public act. Finally (6), I shall apply this conclusion to some contemporary difficulties in ethics and moral theology, specifically to the question about whether and under what circumstances communion...

Does Exposure to Preparatory Work Affect Treaty Interpretation? An Experimental Study on International Law Students and Experts

Ample research has demonstrated that exposure to inadmissible evidence affects decision-making in criminal and civil cases. However, the difficulty of ignoring information in the context of legal interpretation has not been examined yet. Our study addresses the possible effects that exposure to preparatory work has on the interpretation of treaties. In the present article, we examine the ability of students enrolled in international law courses and of international law experts to ignore preparatory work when they are not allowed to use it. We found that exposure to preparatory work affected the students’ interpretation of treaties, while no such effect was found among the experts. These results reaffirm the practical relevance of the debate over the hierarchy between the rules of treaty interpretation. In particular, our study demonstrates that preparatory work can play a significant role in decision-making, depending on the legal rule that applies to the use of such materials. More generally, our study suggests that legal interpretation by students and experts is qualitatively different, and that international law experts might be better able than non-experts to discount irrelevant information in the process of treaty interpretation.

Special Methods of Forensic Linguistic Analysis and “Expert Phantoms” (Reflections upon Reading the Works of R.S. Belkin's on Criminalistics)

The article discusses some special methods and approaches to forensic linguistic analysis that may lead to the occurrence of “expert phantoms”, or speculative contradictory findings instead of science-based linguistic facts. The use of linguistic methods that modify the original text as a piece of linguistic evidence, or artificially create a new virtual object (“complex separate text”) by combining different texts, can be seen as the basis for evaluating an expert’s opinion as irrelevant or inadmissible evidence.

Predicting Utah v. Strieff's Civil Rights Impact

The Supreme Court’s recent Utah v. Strieff decision declined to apply the exclusionary rule to evidence seized as a result of an arrest that followed an unconstitutional stop. The opinion, in conjunction with Justice Sotomayor’s dissent, has reanimated discussions regarding when, if ever, criminal defendants can expect the exclusionary rule to apply. When applied, the exclusionary rule renders inadmissible evidence recovered through “unconstitutional police conduct”; the evidence’s exclusion reinforces the Fourth Amendment’s ban on unreasonable searches and seizures. Unlike most discussions of Strieff, which focus on its implications for criminal defendants,this Essay examines how Strieff will impact civil rights plaintiffs’ ability to recover damages for unconstitutional stops under 42 U.S.C. § 1983.Strieff is just one of several recent cases in which the Court has declined to apply the exclusionary rule. The Court’s decreased application of the exclusionary rule has been accompanied by its increased faith in the threat that Section 1983 civil liability poses to law enforcement officers. For example, in Hudson v. Michigan, the Court declined to apply the exclusionary rule to a knock-and-announce violation. It described how Section 1983 liability, expanded significantly since it was first made available in 1961’s Monroe v. Pape decision, would stand in for the exclusionary rule in producing the desired deterrent effect.In Fourth Amendment jurisprudence, both the exclusionary rule and Section 1983 are cited as different means to the same hypothetical end: deterring future constitutional violations. The exclusionary rule suppresses illegally seized evidence in circumstances where applying the rule is such a severe penalty that the risk of future application prevents illegal law enforcement conduct. The rule only applies when the need for its deterrent effect outweighs the rule’s “substantial social costs,” including the risk that the guilty go free. In contrast, Section 1983 purportedly deters law enforcement officers from engaging in constitutional violations with the threat of having to pay damages to the victim of the violation.Like Hudson, Strieff assumes that when the exclusionary rule is not applied, Section 1983 will adequately deter future unconstitutional stops. This Essay challenges that conclusion. First, it examines how Strieff may limit civil rights plaintiffs’ ability to recover meaningful damage awards for the events caused by unconstitutional stops. Second, it explains that in a civil rights case arising out of a Strieff-like scenario, civil rights plaintiffs will only be able to recover nominal damages. Third, it explains that the damages limitation will discourage attorneys from representing civil rights plaintiffs like Edward Strieff. It concludes that Section 1983 is an inadequate surrogate for the exclusionary rule, and that as a result, absent the exclusionary rule, there is no real deterrent preventing police power abuse.

不採用証拠の存在が採用証拠の評価・判決に及ぼす影響について : 社会人と学生が仮想的に裁判員になった場合の比較・検討

不採用証拠の存在が採用証拠の評価・判決に及ぼす影響について : 社会人と学生が仮想的に裁判員になった場合の比較・検討

PROBLEM THE RECOGNITION OF EVIDENCE INADMISSIBILITY IN CRIMINAL PROCESS

The paper analyzes the problematic issues concerning the recognition of evidence as inadmissible in criminal proceedings. A study of the historical perspective of basic scientific concepts of recognition of evidence as inadmissible in criminal proceedings is conducted. The author analyzes the problem of resolving the issue of admissibility of evidence in the Criminal Procedure Code of Ukraine of 2012. Attention is drawn to the fact that fixing the basic concepts of recognition of evidence as inadmissible in the new Criminal Procedure Code of Ukraine requires a detailed study of this problem. In such study, the main is scientifically sound approach to the formulation of criminal procedure rules, as well as developing judicial practice. In the theory of criminal process and criminal processual legislation the problem of recognition inadmissible evidence is solving ambiguously. It should be emphasized that such an ambiguity refers not only to the criminal process, but generally to other kinds of legal procedures. The existence of complex and multi-faceted approaches for clarifying the nature of the evidence admissibility, recognition of their unacceptability in the legal process contributed to the emergence in national legal science considerable, we can say a great number of relevant concepts studied in relation to issues. In this case for an objective and critical analysis, for improving certain elements of data concepts, there is a need to explore their significance for the science of criminal process and their impact on domestic criminal procedural legislation of Ukraine. The problem of legal concepts regulating the admissibility of evidence is a necessary factor for improving the efficiency of thecriminal process, the tasks of criminal justice.

Media Trials in India

Participative media is considered as the 'cornerstone' of our democracy. Media acts as facilitator along with being an expediter on many matters including those affecting the collective conscience of society. To cite a few, like Priyadarshini Mattoo case, Jessica Lal case and recently Tehelka case. Though media to a large extent plays irrefutably positivist role, role of media in media trials specifically of sexual offence is doubtful. Sensational journalism is a reality of Media industry, for the sake of TRP explicit details of the sexual offence are divulged in public domain which results in impinging of victim’s Right to privacy or unfair denunciation of an alleged assailant. In recent infamous Khurshid Anwar case, a news agency (India TV) labeled Mr. Anwar as rapist based on unsubstantiated victim’s account, which resulted in him committing suicide. This has led to debates of legal sanctity of report of media investigations in sub-judice matter. The principle of criminal trial -- innocent till not proved guilty -- must be understood by media, as premature judgments of guilt or innocence is denial of fair trial to accuse. The paper will explicate in detail benefits of this activist role of the media along with legal implications like intrusion of victim’s privacy, implication of verbatim re-production in public domain, denial of Right to a fair trial, conception of bias in public based on inadmissible evidence and interfering in judicial process by impacting the sentencing process.

Практика применения норм о допустимости доказательств в уголовном процессе

The article deals with the problems of interpretation of the rules on admissibility of evidence in criminal proceedings, ways of substitution of one type of evidence by another, examples of the use of inadmissible evidence in the activities of the investigative and judicial authorities. The author analyzes the court practice concerning the issue of admissibility of evidence and explains the position of the Constitutional Court of the Russian Federation concerning the possibility of questioning of investigators and inquiry officers as witnesses at the court hearing. The author is against the use as evidence not provided for in the Code of Criminal Procedure of the Russian Federation. The author supports the idea that there should be a regulation of the Code of Criminal Procedure of the Russian Federation that particular kinds of evidence have to be from proper sources. In the end, the author comes to the conclusion about the necessity of using teleological interpretation of the criminal procedure rules on the admissibility of evidence, based on the intentions of the legislator.

Media Trial of Sexual Offence: Legal Sanctity

Participative media is considered as the ‘cornerstone’ of our democracy. Media acts as facilitator along with being an expediter on many matters including those affecting the collective conscience of society. To cite a few, like Priyadarshini Mattoo case, Jessica Lal case and recently NUJS law intern case and Tehelka case. Though media to a large extent plays irrefutably positivist role, role of media in media trials specifically of sexual offence is doubtful. Sensational journalism is a reality of Media industry, for the sake of TRP explicit details of the sexual offence are divulged in public domain which results in impinging of victim’s Right to privacy or unfair denunciation of an alleged assailant. In recent infamous Khurshid Anwar case, a news agency (India TV) labeled Mr. Anwar as rapist based on unsubstantiated victim’s account which resulted in him committing suicide. This has led to debates of legal sanctity of report of media investigations in sub-judice matter. The principle of criminal trial - ‘innocent till not proved guilty’ must be understood by media, as premature judgments of guilt or innocence is denial of fair trial to accused. The paper will explicate in detail benefits of this activist role of the media along with legal implications like intrusion of victim’s privacy, implication of verbatim re-production in public domain, denial of Right to a fair trial, conception of bias in public based on inadmissible evidence and interfering in judicial process by impacting the sentencing process.

Fear of Justifications, and: The First Circle, and: Fear of the Either/Or, and: Fear of Seed Vaults and Immortality, and: Fear of Blamelessness

Fear of Justifications, and: The First Circle, and: Fear of the Either/Or, and: Fear of Seed Vaults and Immortality, and: Fear of Blamelessness Darren Morris (bio) Fear of Justifications Darren Morris The irony of heaven holds that Dick Cheney will be waterboarded by angels until he confesses to his role as a torturer. But angels know he’ll just be feigning his responsibility, that torture ultimately produces only what angels want to hear and not confession at all. Then he’ll know futility. For angels are made of light. They move through almost everything but liquids, craving anywhere to alight, to trade indifference for intransigence. So what they love the most is sound, to have something go through them the same way they slip through history, as the fugacious tailwind to event. The root of their addiction is sweetened in such harmless game as to prey on a wretch like Cheney and all his inadmissible evidence. There is nothing more satisfying than to choke the crystalline bubble from his mouth, allowing it to rise and burst. For the unrepentant scream in paradise provides an illusion of the forbidden. It strafes them raw with the lie that rids the lice of their desire, and it goes, shuddering up through their radiant wings. [End Page 175] Copyright © 2013 The Curators of the University of Missouri The First Circle Darren Morris This is where Dante visits the great philosophers and ignores the whirring machinery that kept my unbaptized baby brother alive for a while before he died, another spark from God’s hammer strike fallen to darkness. My parents are not here to tend to him, for they were made aware of Christ’s infinite mercy and begged forgiveness. Going back to sleep in paradise, my father, up early for work, watches the sky get pink, alone on the bus he took every day to the plant. But I wonder if my mother ascended or plummeted to the realm of bleeding trees. Her one, perhaps, irredeemable sin: grief’s utter selfishness, the slow violence on which she wrecked. [End Page 176] Copyright © 2013 The Curators of the University of Missouri Fear of the Either/Or Darren Morris I The neighbors’ new baby is home now from its little miracle, and we go by, obligatory, with our skin-of-lion blanket (so the dead will not disturb her passage) and a rattle (to frighten in case they do). Its enormous stretch and yawn, mammalian, helpless. The unformed throat cords lead to the primacy of voice and vibrate like rosin across the bow. This sound shakes against my wife’s endometrial canopy that collects our effervescence, as if trumpeters at the walls of Jericho, toppling them to ruin. II We’ve tried and failed for years. So wanting a baby now seems almost perverse. As if we have to do it. That it might fill that dark seam in the sky that ripped opened. That we must reorganize the air into an actual future, rather than this endlessness. Or go until we fall silent and no one remembers how we inhabited each other, or wore these skins—velutinous, honey-drenched—as lions. How we fit together just so. How we shook the rattle of our bones against the dead. [End Page 177] Copyright © 2013 The Curators of the University of Missouri Fear of Seed Vaults and Immortality Darren Morris I Even here, earthbound, nestled within the Norwegian subterranean seed vault, forevermore is encrusted in permafrost. Our pods escape to your cold arms, inhabitation. Take twins of all and core genetic variations— only the best, the ones that can outlive drought, flood, pestilence, poor nutrients, too much cold, heat, too little light. There are 20 forms of tomato and 26 of wheat. Most can survive beyond the power plant, but will suck the batteries dry before the lights cut and the dormancy cracks, relenting to the deeper sleep of lost worlds. For now, this promise stays spring-loaded, sealed, each package neglected inside its silver drawer, labeled in DNA code, symbol, Latin and English obsolescence. This one, named rare municipal orchid is not foodstuff. Is not for crop or soil rotation or for cleaning the...

Causation, Chance, and the Rational Significance of Supernatural Evidence

In “A Subjectivist’s Guide to Objective Chance,” David Lewis says that he is “led to wonder whether anyone but a subjectivist is in a position to understand objective chance.” The present essay aims to motivate this same Lewisean attitude, and a similar degree of modest subjectivism, with respect to objective causation. The essay begins with Newcomb problems, which turn on an apparent tension between two principles of choice: roughly, a principle sensitive to the causal features of the relevant situation, and a principle sensitive only to evidential factors. Two-boxers give priority to causal beliefs, and one-boxers to evidential beliefs. The essay notes that a similar issue can arise when the modality in question is chance, rather than causation. In this case, the conflict is between decision rules based on credences guided solely by chances, and rules based on credences guided by other sorts of probabilistic evidence. Far from excluding cases of the latter kind, Lewis’s Principal Principle explicitly allows for them, in the form of the caveat that credences should follow beliefs about chances only in the absence of “inadmissible evidence.” The essay then exhibits a tension in Lewis’s views on these two matters, by presenting a class of decision problems—some of them themselves Newcomb problems—in which Lewis’s view of the relevance of inadmissible evidence seems in tension with his causal decision theory. It offers a diagnosis for this dilemma and proposes a remedy, based on an extension of a proposal due to Ned Hall and others from the case of chance to that of causation. The remedy suggests a new view of the relation between causal decision theory and evidential decision theory, namely, that they stand to each other much as chance stands to credence, being objective and subjective faces of the same practical coin. This has much the same metaphysical benefits as Lewis’s own view of chance and also throws interesting new light on Newcomb problems, providing an irenic resolution of the apparent disagreement between causal and evidential decision rules.

An Embarrassment for Double-Halfers

“Double-halfers” think that throughout the Sleeping Beauty Problem, Beauty should keep her credence that a fair coin flip came up heads equal to 1/2. I introduce a new wrinkle to the problem that shows even double-halfers can't keep Beauty's credences equal to the objective chances for all coin-flip propositions. This leaves no way to deny that self-locating information generates an unexpected kind of inadmissible evidence.

An Embarrassment for Double-Halfers

‘‘Double-halfers’’ think that throughout the Sleeping Beauty Problem, Beauty should keep her credence that a fair coin flip came up heads equal to 1/2. I introduce a new wrinkle to the problem that shows even double-halfers can’t keep Beauty’s credences equal to the objective chances for all coin-flip propositions. This leaves no way to deny that self-locating information generates an unexpected kind of inadmissible evidence.

The impact of differential information between lay participants and professional judges on deliberative decision-making

The authors investigate the effects of information differentials among judicial panel members on group decision-making. Professional judges are exposed to pre-trial information, including inadmissible evidence and testimony. Lay participants, on the other hand, are only allowed to view and evaluate evidence presented in trials, thereby forming a knowledge gap in regards to evidentiary information and materials. In order to examine the effect of these information gaps on deliberative processes and trial outcomes, a total of 24 civic participants were randomly assigned to three-person groups and deliberated on two fictitious criminal cases. The scenarios that the participants received prior to deliberation varied in the amount of information given. The deliberations were both video-recorded and transcribed. Analysis of the deliberations showed that both shared knowledge among members and unshared knowledge held by the member to whom had been given more information appeared more salient during the deliberative process. Our study suggests that lay participants may be at a disadvantage during deliberation not only because of their lower social influence but also due to their lack of evidentiary information for a given trial.

Jury decision‐making biases and methods to counter them

Purpose. The objective of this review was to give a broad overview of various biases associated with jury decision making. Specifically we review research on the impact of pretrial publicity, jury instructions, inadmissible evidence, and scientific evidence. This article elucidates various challenges jurors may face across systems around the world and remedies to counter these challenges.Results. After 50 years of scientific research on juries and juror decision making, there are still many gaps in understanding how factors such as pretrial publicity, inadmissible evidence, scientific evidence, and jury instructions influence juries. At the same time the field has developed a level of appreciation for these problems and is making strives toward understanding them.Conclusion. Based on this review some conclusions can be drawn regarding the areas of decision making reviewed. Jury instructions: Research shows that jurors have difficulties in understanding pattern instructions, at the same time we have developed some insights into ways instructions can be rewritten to increase comprehensibility. Inadmissible evidence: We are aware of the cognitive effort involved in attempting to disregard evidence but are at this point unclear on how to eliminate the associated problems. Scientific evidence: Research has illuminated the difficulties jurors have with comprehending scientific evidence. Better education of jurors and judges can help to address this issue. Pretrial publicity: The threats posed by pretrial publicity to the defendant's right to a fair trial are clear. At the same time (save change of venue) there is a need to develop cost‐effective remedies to help overcome media‐induced biases.

Could Attempts to Reduce the Effects of Inadmissible Evidence Go Too Far?

Could Attempts to Reduce the Effects of Inadmissible Evidence Go Too Far?

‘We hold these truths to be self‐evident’: deconstructing ‘evidence‐based’ medical practice

Rationale, aims and objectives Evidence-based medicine (EBM) claims to be based on 'evidence', rather than 'intuition'. However, EBM's fundamental distinction between quantitative 'evidence' and qualitative 'intuition' is not self-evident. The meaning of 'evidence' is unclear and no studies of quality exist to demonstrate the superiority of EBM in health care settings. This paper argues that, despite itself, EBM holds out only the illusion of conclusive scientific rigour for clinical decision making, and that EBM ultimately is unable to fulfil its own structural criteria for 'evidence'. Methods Our deconstructive analysis of EBM draws on the work of the French philosopher, Jacques Derrida. Deconstruction works in the name of justice to lay bare, to expose what has been hidden from view. In plain language, we deconstruct EBM's paradigm of 'evidence', the randomized controlled trial (RCT), to demonstrate that there cannot be incontrovertible evidence for EBM as such. We argue that EBM therefore 'auto-deconstructs' its own paradigm, and that medical practitioners, policymakers and patients alike ought to be aware of this failure within EBM itself. Results EBM's strict distinction between admissible evidence (based on RCTs) and other supposedly inadmissible evidence is not itself based on evidence, but rather, on intuition. In other words, according to EBM's own logic, there can be no 'evidentiary' basis for its distinction between admissible and inadmissible evidence. Ultimately, to uphold this fundamental distinction, EBM must seek recourse in (bio)political ideology and an epistemology akin to faith.

Context Effects in Judicial Decision Making

In this paper, we present five sets of studies of how lawyers can induce judges to make erroneous judgments and how judges seem to respond. In the first, we demonstrate that a simple contrast effect can influence judges by showing that adding a worthless expert witness who lacks credibility can boost one's case. In the second, we show that judges' assessments of the probative value of forensic evidence depends upon how the information is presented. But at the same time, we show that judges resist this misleading attempt at misdirection. Similarly, in the third set of studies, we show that judges are vulnerable to the misleading effects of the conjunctive logic, but that they seem also able to resist this effect in settings that are more relevant to the kinds of judgments they make. In the fourth set of studies, we identify how it is that judges avoid the influence of the hindsight bias on judgments of probable cause by altering the target of the judgment that they make. (In this study, the natural setting, rather than tricky lawyering, provides the potential source of misdirection, but judges seem to navigate it well.) In the final set of studies we show how judges attempt to ignore inadmissible evidence in ways that make them vulnerable to further undesirable extra-legal influences. Taken together, these studies show that misdirection is a two-way streets in the courtroom. Laywers can try to misdirected judges to induce erroneous judgments, but judges might well respond by changing their own focus to more stable targets that make them less vulnerable to untoward influences. These efforts, however, can also backfire, as judges can make themselves more vulnerable to error.

Jurors' Responses To Unusual Inadmissible Evidence

Two experiments investigated jurors' ability to disregard unusual inadmissible evidence. Participants listened to an audio recording of a theft trial. Those in four experimental conditions heard critical testimony favoring the prosecution, which was ruled either admissible or inadmissible and which contained either neutral details or details that were unusual in terms of semantic content (Experiment 1) or form (Experiment 2). Control jurors received no critical evidence. Exposure to unusual rather than neutral evidence led jurors to see the defendant as more guilty but only if that evidence was inadmissible instead of admissible. Additionally, jurors remembered unusual evidence better than neutral evidence. The results are consistent with Wegner's ironic-process theory and suggest that attempts at thought suppression are less successful if the forbidden information is especially memorable.

Overview of Licensing and Legal Issues for Digital Forensic Investigators

Digital forensic examiners face challenges outside the technical aspects of collecting, investigating, and storing digital information. Rules about admissibility and the licensing requirements for forensic professionals must also be taken into account. The use of digital data in an expanding number of US court cases and business investigations has precipitated changes in evidence handling and admissibility requirements, most notably in the 2006 changes to the Federal Rules of Civil Procedure. Knowledge of these rules and the ensuing case law is an essential component of any examiner's toolkit because improper evidence handling can lead to inadmissible evidence. The court's acceptance of such evidence is also greatly affected by the examiner's proper licensure. Unfortunately, these requirements vary by state (sometimes even by city) and are constantly changing. Therefore, digital forensic investigators must heed both the court's rules regarding evidence handling and the state's rules for licensing in order to be most effective.