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International Journal of Evidence and Proof
Number of Followers: 12

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ISSN (Print) 1365-7127 - ISSN (Online) 1740-5572
Published by Sage Publications

[1099 journals]

Zombie forensics: the use of the polygraph and the integrity of the
criminal justice system in England and Wales
- Authors: Kyriakos N. Kotsoglou
  Pages: 16 - 35
  Abstract: The International Journal of Evidence & Proof, Volume 25, Issue 1, Page 16-35, January 2021.
  The criminal justice system of England and Wales increasingly deploys the polygraph to extract information from released offenders. Although there is little judicial authority regarding the admissibility of polygraph evidence, we should not misinterpret silence as legal uncertainty. The paper will, first, show that the central claim for the understanding of the polygraph—i.e. the presupposition that the polygraph indicates deception—is inextricably linked to an obsolete paradigm in psychology (Introspection). Secondly, I will turn to first principles in the law of evidence, especially the general ban on opinion evidence and the requirement for scientific validity. The requirement that expert evidence has a sufficiently reliable scientific basis explains why polygraph evidence cannot be adduced at the criminal process. Thirdly, I will draw attention to the use of polygraph tests in the context of probation, pursuant to the Offender Management Act 2007. With the use of the polygraph, the criminal justice system does not only infringe the released offender’s human rights, but also fails to protect the public. The combination of inadmissibility of the polygraph in the criminal process and its use from probation services creates thus a major contradiction which is detrimental to the integrity of the legal order.
  Citation: The International Journal of Evidence & Proof
  PubDate: 2021-01-06T04:16:10Z
  DOI: 10.1177/1365712720983929
  Issue No: Vol. 25, No. 1 (2021)
A case study on shortage of evidence in wrongful convictions in China
- Authors: HE Jiahong
  Pages: 36 - 52
  Abstract: The International Journal of Evidence & Proof, Volume 25, Issue 1, Page 36-52, January 2021.
  The judiciary can only get to know the facts of a case that occurred in the past through limited evidence, and even with the shortage of evidence, the facts are fuzzy just like the moon on water. Wrongful convictions are very often based on a shortage of evidence and an ambiguity of facts. In those cases, judges face a dilemma in finding facts and applying rules of law. In order to prevent wrongful convictions, it is important to clarify the standard of evidence, to promote the legality of criminal investigation and to improve the assessment of evidence.
  Citation: The International Journal of Evidence & Proof
  PubDate: 2021-01-06T04:16:35Z
  DOI: 10.1177/1365712720983933
  Issue No: Vol. 25, No. 1 (2021)
Victim legal representation and the adversarial criminal trial: A critical
analysis of proposals for third-party counsel for complainants of serious
sexual violence
- Authors: Tyrone Kirchengast
  Pages: 53 - 72
  Abstract: The International Journal of Evidence & Proof, Volume 25, Issue 1, Page 53-72, January 2021.
  The past several decades have witnessed a shift toward victim interests being considered and incorporated within adversarial systems of justice. More recently, some jurisdictions have somewhat contentiously considered granting sex offences complainants’ legal representation at trial. In Australia, the Royal Commission into Institutional Responses to Child Abuse (2017), the Royal Commission into Family Violence (2016) and the Victorian Law Reform Commission (2016) considered the potential role of legal counsel for complainants in the criminal trial process. While contrasting quite significantly with the traditional adversarial framework—which sees crime as contested between state and accused—legal representation for complainants is not unprecedented, and victims may already retain counsel for limited matters. Despite broader use of victim legal representation in the United States, Ireland and Scotland, and as recently considered by the Sir John Gillen Review in Northern Ireland, legal representation for sex offences complainants is only just developing in Australia. Notwithstanding recent reference to legal representation for complainants where sexual history or reputational evidence may be adduced, there exists no sufficient guidance as to how such representation may be integrated in the Australian criminal trial context. This article explores the implications of introducing such counsel in Australia, including the possible role of non-legal victim advocates.
  Citation: The International Journal of Evidence & Proof
  PubDate: 2021-01-06T04:16:36Z
  DOI: 10.1177/1365712720983931
  Issue No: Vol. 25, No. 1 (2021)
A comparison between the standard of proof applicable in arbitration and
formal adjudication
- Authors: Jesus Ezurmendia, Maria de los Angeles Gonzalez
  First page: 3
  Abstract: The International Journal of Evidence & Proof, Ahead of Print.
  This article aims to describe the application of the standard of proof in arbitration and to question whether the standard to be applied should be the same as or lower than in ordinary civil justice as a result of the contractual origin of the dispute. The determination of the applicable standard takes into consideration the equality of arms and other guarantees of due process, along with the fact of the absence of the standard rule in the Arbitration Act 1996. The arbitrator shall establish these aspects at the beginning of the process, considering also the rules of burden of proof.
  Citation: The International Journal of Evidence & Proof
  PubDate: 2020-08-04T09:24:06Z
  DOI: 10.1177/1365712720943333