The Internationalisation of Criminal Evidence: Beyond the Common Law and Civil Law Traditions

by John D. Jackson , Sarah J. Summers

• ISBN13: 9780521688475
• ISBN10: 0521688477
• Format: Paperback
• Copyright: 2012-02-27
• Publisher: Cambridge University Press

Summary

Although there are many texts on the law of evidence, surprisingly few are devoted specifically to the comparative and international aspects of the subject. The traditional view that the law of evidence belongs within the common law tradition has obscured the reality that a genuinely cosmopolitan law of evidence is being developed in criminal cases across the common law and civil law traditions. By considering the extent to which a coherent body of common evidentiary standards is being developed in both domestic and international jurisprudence, John Jackson and Sarah Summers chart this development with particular reference to the jurisprudence on the right to a fair trial that has emerged from the European Court of Human Rights and to the attempts in the new international criminal tribunals to fashion agreed approaches towards the regulation of evidence.

Author Biography

John D. Jackson is a barrister at law and professor of Criminal law at the school of law, University College Dublin. Sarah J. Summers is currently Oberassistentin in criminal law and criminal procedure at the law School in the University of Zurich, Switzerland, and a researcher at the Max Planck Institute for Foreign and International law, Freiburg in Breisgau, Germany.

Table of Contents

Foreword	p. xiv
Preface and acknowledgements	p. xvi
Abbreviations	p. xix
Table of international cases	p. xxii
Evidentiary contexts	p. 1
Evidence across traditions	p. 3
Introduction: the convergence debate	p. 3
Comparative evidence scholarship	p. 9
The rationalist tradition and the rights tradition	p. 14
Towards shared evidentiary principles	p. 19
Beyond the common and civil law traditions	p. 27
The common law tradition	p. 30
Introduction: free proof and the common law	p. 30
Common law conceptions of the law of evidence	p. 34
Evidence law adrift?	p. 38
Challenges to free proof	p. 40
The epistemic challenge	p. 41
The scientific challenge	p. 45
The constitutional challenge	p. 50
Conculsion	p. 55
Evidential traditions in continental European jurisdictions	p. 57
Introduction	p. 57
The development of criminal evidence law and the movement towards 'freedom of proof'	p. 58
The importance of the nineteenth-century procedural reforms	p. 66
Freedom of proof and restrictions on the doctrine in modern evidence law	p. 69
Excluding or prohibiting the use of evidence	p. 72
Recent developments in evidence law	p. 74
Conclusion	p. 76
The international human rights context	p. 77
Introduction	p. 77
The evolution of evidentiary human rights norms	p. 79
The right to a fair trail	p. 79
The equality of arms principle	p. 83
The right to an adversarial trial	p. 86
The process of proof and the regulation of the investigation/pre-trial phase	p. 95
Defence rights and the importance of the procedural environment	p. 97
Potential for per-trial activities to impinge on defence rights	p. 99
Towards convergence or realignment?	p. 101
Conclusion	p. 106
Evidence in the international criminal tribunals	p. 108
Towards an international system of justice	p. 108
Problems of legitimacy	p. 110
Function and purpose of international criminal trials	p. 111
The evidentiary context	p. 112
Reaching agreed rules of procedure and evidence	p. 115
Common law foundations	p. 116
The ad hoc tribunals	p. 119
Rubbing points between the common law and the civil law	p. 124
The need for realignment	p. 131
The right to equality of arms	p. 133
The right to an adversarial	p. 136
Towards the future and the international Criminal Court	p. 140
Conclusion	p. 145
Evidentiary rights	p. 149
Fair trials and the use of improperly obtained evidence	p. 151
Introduction	p. 151
Theories explaining the exclusion of improperly obtained evidence	p. 153
Evidence obtained by way of torture, inhuman or degrading treatment	p. 158
Evidence obtained by way of torture	p. 160
Evidence obtained by way of inhuman or degrading treatment	p. 163
Fairness and evidence obtained by recourse to torture or ill-treatment	p. 166
Deception, coercion, traps and tricks	p. 169
Wiretapping and covert surveillance	p. 171
De facto 'interrogation' of suspects in custody	p. 175
De facto 'questioning' of suspects not in custody	p. 179
Fairness and the use of evidence by deception and coercion	p. 181
Entrapment	p. 188
Fruit of the poisonous tree	p. 191
Conclusion: improperly obtained evidence, fairness and the under-regulated pre-trial/investigative process	p. 194
The presumption of innocence	p. 199
Introduction	p. 199
The meaning of the presumption of innocence	p. 200
The presumption as an evidentiary protection	p. 200
Treating defendants as innocent	p. 205
Substantive innocence	p. 208
The presumption of innocence and the rationalist tradition	p. 211
The presumption and fair trial standards	p. 215
The scope of the presumption of innocence under human rights law	p. 217
Reversal of the burden of proof	p. 221
Avoiding prejudice	p. 228
An independent and impartial tribunal	p. 229
Participatory rights	p. 233
The right to a reasoned judgment	p. 237
Conclusion	p. 239
Silence and the privilege against self-incrimination	p. 241
The historical and transnational importance of the right of silence	p. 241
The scope of the privilege in international law	p. 246
The international instruments	p. 246
Funke v.France	p. 248
Charged with a criminal offence	p. 250
Incrimination	p. 251
Compulsion	p. 252
Defiance of the will of the suspect	p. 253
Exception to the rights against self-incrimination and of silence	p. 256
The public interest	p. 256
Other factors	p. 258
Inferences from silence	p. 260
Rationale of the privilege and the right of silence	p. 266
The right of silence as a necessary condition for active defence participation	p. 273
Incorporating fair trials standards from the point of being called to account	p. 277
Conclusion	p. 283
Defence participation	p. 285
Introduction: legal representation and self-representation	p. 285
The right to effective legal assistance	p. 289
Early legal assistance	p. 289
Communication with counsel	p. 289
Right to private communication and legal professional privilege	p. 291
Balancing away the privilege	p. 293
The right to full disclosure of evidence	p. 295
The case against the accused	p. 295
The scope of the right to disclosure: Jespers and Edwards	p. 297
Uncertainties as to scope	p. 301
An absolute right?	p. 304
Common law shortcomings	p. 307
Beyond disclosure: access to evidence outside the possession of the prosecution	p. 310
Defence investigations	p. 310
Application to the court	p. 312
Public interest immunity	p. 316
The principle of judicial scrutiny	p. 317
Adversarial argument	p. 319
Conclusion	p. 323
Challenging witness evidence	p. 325
Introduction	p. 325
Justifying the right to challenge incriminatory witness evidence	p. 327
The regulation of the right to challenge witness evidence: the human rights perspective	p. 334
The importance of the witness evidence: the sole or decisive test	p. 338
An adequate and proper opportunity to challenge the witness	p. 342
The significance of the procedural environment: principal versus preliminary proceedings	p. 342
The circumstances of witness hearing: the importance of an impartial judge and the right to counsel	p. 345
Obligation to organise the witness examination hearing	p. 349
Restrictions on the defence's opportunity to challenge the witness	p. 351
The substantive sufficiency of the opportunity to challenge the witness	p. 356
Defence obligations, waiver and forfeiture	p. 359
Challenging expert witnesses	p. 361
Conclusion	p. 362
Towards a theory of evidentiary defence rights	p. 367
Beyond tradition	p. 367
Prospects for evidentiary defence rights	p. 371
Victims' rights and participation	p. 372
State security and terrorism	p. 380
Cost and expedition	p. 384
Legal culture and tradition	p. 387
Index	p. 392
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