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

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  • Format: Paperback
  • Copyright: 2012-02-27
  • Publisher: Cambridge University Press

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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

Forewordp. xiv
Preface and acknowledgementsp. xvi
Abbreviationsp. xix
Table of international casesp. xxii
Evidentiary contextsp. 1
Evidence across traditionsp. 3
Introduction: the convergence debatep. 3
Comparative evidence scholarshipp. 9
The rationalist tradition and the rights traditionp. 14
Towards shared evidentiary principlesp. 19
Beyond the common and civil law traditionsp. 27
The common law traditionp. 30
Introduction: free proof and the common lawp. 30
Common law conceptions of the law of evidencep. 34
Evidence law adrift?p. 38
Challenges to free proofp. 40
The epistemic challengep. 41
The scientific challengep. 45
The constitutional challengep. 50
Conculsionp. 55
Evidential traditions in continental European jurisdictionsp. 57
Introductionp. 57
The development of criminal evidence law and the movement towards 'freedom of proof'p. 58
The importance of the nineteenth-century procedural reformsp. 66
Freedom of proof and restrictions on the doctrine in modern evidence lawp. 69
Excluding or prohibiting the use of evidencep. 72
Recent developments in evidence lawp. 74
Conclusionp. 76
The international human rights contextp. 77
Introductionp. 77
The evolution of evidentiary human rights normsp. 79
The right to a fair trailp. 79
The equality of arms principlep. 83
The right to an adversarial trialp. 86
The process of proof and the regulation of the investigation/pre-trial phasep. 95
Defence rights and the importance of the procedural environmentp. 97
Potential for per-trial activities to impinge on defence rightsp. 99
Towards convergence or realignment?p. 101
Conclusionp. 106
Evidence in the international criminal tribunalsp. 108
Towards an international system of justicep. 108
Problems of legitimacyp. 110
Function and purpose of international criminal trialsp. 111
The evidentiary contextp. 112
Reaching agreed rules of procedure and evidencep. 115
Common law foundationsp. 116
The ad hoc tribunalsp. 119
Rubbing points between the common law and the civil lawp. 124
The need for realignmentp. 131
The right to equality of armsp. 133
The right to an adversarialp. 136
Towards the future and the international Criminal Courtp. 140
Conclusionp. 145
Evidentiary rightsp. 149
Fair trials and the use of improperly obtained evidencep. 151
Introductionp. 151
Theories explaining the exclusion of improperly obtained evidencep. 153
Evidence obtained by way of torture, inhuman or degrading treatmentp. 158
Evidence obtained by way of torturep. 160
Evidence obtained by way of inhuman or degrading treatmentp. 163
Fairness and evidence obtained by recourse to torture or ill-treatmentp. 166
Deception, coercion, traps and tricksp. 169
Wiretapping and covert surveillancep. 171
De facto 'interrogation' of suspects in custodyp. 175
De facto 'questioning' of suspects not in custodyp. 179
Fairness and the use of evidence by deception and coercionp. 181
Entrapmentp. 188
Fruit of the poisonous treep. 191
Conclusion: improperly obtained evidence, fairness and the under-regulated pre-trial/investigative processp. 194
The presumption of innocencep. 199
Introductionp. 199
The meaning of the presumption of innocencep. 200
The presumption as an evidentiary protectionp. 200
Treating defendants as innocentp. 205
Substantive innocencep. 208
The presumption of innocence and the rationalist traditionp. 211
The presumption and fair trial standardsp. 215
The scope of the presumption of innocence under human rights lawp. 217
Reversal of the burden of proofp. 221
Avoiding prejudicep. 228
An independent and impartial tribunalp. 229
Participatory rightsp. 233
The right to a reasoned judgmentp. 237
Conclusionp. 239
Silence and the privilege against self-incriminationp. 241
The historical and transnational importance of the right of silencep. 241
The scope of the privilege in international lawp. 246
The international instrumentsp. 246
Funke v.Francep. 248
Charged with a criminal offencep. 250
Incriminationp. 251
Compulsionp. 252
Defiance of the will of the suspectp. 253
Exception to the rights against self-incrimination and of silencep. 256
The public interestp. 256
Other factorsp. 258
Inferences from silencep. 260
Rationale of the privilege and the right of silencep. 266
The right of silence as a necessary condition for active defence participationp. 273
Incorporating fair trials standards from the point of being called to accountp. 277
Conclusionp. 283
Defence participationp. 285
Introduction: legal representation and self-representationp. 285
The right to effective legal assistancep. 289
Early legal assistancep. 289
Communication with counselp. 289
Right to private communication and legal professional privilegep. 291
Balancing away the privilegep. 293
The right to full disclosure of evidencep. 295
The case against the accusedp. 295
The scope of the right to disclosure: Jespers and Edwardsp. 297
Uncertainties as to scopep. 301
An absolute right?p. 304
Common law shortcomingsp. 307
Beyond disclosure: access to evidence outside the possession of the prosecutionp. 310
Defence investigationsp. 310
Application to the courtp. 312
Public interest immunityp. 316
The principle of judicial scrutinyp. 317
Adversarial argumentp. 319
Conclusionp. 323
Challenging witness evidencep. 325
Introductionp. 325
Justifying the right to challenge incriminatory witness evidencep. 327
The regulation of the right to challenge witness evidence: the human rights perspectivep. 334
The importance of the witness evidence: the sole or decisive testp. 338
An adequate and proper opportunity to challenge the witnessp. 342
The significance of the procedural environment: principal versus preliminary proceedingsp. 342
The circumstances of witness hearing: the importance of an impartial judge and the right to counselp. 345
Obligation to organise the witness examination hearingp. 349
Restrictions on the defence's opportunity to challenge the witnessp. 351
The substantive sufficiency of the opportunity to challenge the witnessp. 356
Defence obligations, waiver and forfeiturep. 359
Challenging expert witnessesp. 361
Conclusionp. 362
Towards a theory of evidentiary defence rightsp. 367
Beyond traditionp. 367
Prospects for evidentiary defence rightsp. 371
Victims' rights and participationp. 372
State security and terrorismp. 380
Cost and expeditionp. 384
Legal culture and traditionp. 387
Indexp. 392
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