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Evidence, Rollie Thompson
Evidence, Rollie Thompson
Articles, Book Chapters, & Popular Press
“Evidence” is what, in our adversary system, the parties attempt to place before the neutral factfinder in order to prove their case (or disprove their opponent's case). We follow the principle of party-presentation: parties determine what specific items of evidence are offered for proof, while the impartial judge or decision maker will determine which items are “admissible” evidence, in accordance with principles of law. At the end of the trial or hearing, the fact-finder (jury, judge, tribunal, decision maker) will determine which of those admissible items of evidence are believed or not, in formulating “fact-guesses” or “findings of fact”.
Mr. Big And The New Common Law Confessions Rule: Five Years In Review, Adelina Iftene, Vanessa Kinnear
Mr. Big And The New Common Law Confessions Rule: Five Years In Review, Adelina Iftene, Vanessa Kinnear
Articles, Book Chapters, & Popular Press
The Supreme Court of Canada released its decision of R v Hart in July of 2014. The decision provided a two-prong framework for assessing the admissibility of confessions obtained through the undercover police tactic known as “Mr. Big”. The goal of the framework was to address reliability concerns, to protect suspects from state abuse, and to reduce the risk of wrongful convictions. The first prong of the test created a new common law evidentiary rule, under which Mr. Big obtained confessions are now presumptively inadmissible. The second prong revamped the existing abuse of process doctrine.
In this article, the authors …
The Exclusion Of Improperly Obtained Evidence At The International Criminal Court: A Principled Approach To Interpreting Article 69(7) Of The Rome Statute, Michael Madden
LLM Theses
This thesis examines article 69(7) of the Rome Statute, which creates an exclusionary rule for improperly obtained evidence at the International Criminal Court (ICC). Ultimately, the thesis proposes how the ICC should interpret its exclusionary rule. The thesis discusses the theory underlying exclusionary rules, the evidence law and remedial law contexts within which exclusionary rules operate, and numerous comparative examples of exclusionary doctrine from within national criminal justice systems. Finally, some unique aspects of international criminal procedure are described in order to demonstrate how an international exclusionary rule might need to differ from a domestic rule, and previous jurisprudence relating …
Trial By Theory: A Response To Acharya's "Law's Treatment Of Science: From Idealization To Understanding", Gary Edmond, Kent Roach
Trial By Theory: A Response To Acharya's "Law's Treatment Of Science: From Idealization To Understanding", Gary Edmond, Kent Roach
Dalhousie Law Journal
Adopting a pragmatic and empirically sensitive approach to the use of forensic science and medicine, this essay defends Edmond and Roach's "AContextual Approach to the Admissibility of the State's Forensic Science and Medical Evidence." The authors reiterate their concerns about idealized approaches to science and expertise and question the utility of philosophically-driven and essentialist models of science for legal practice. In detail the essay explains why privileging process over outcomes in the criminal process (andeven perpetuating the dichotomy) is misguided. The authors affirm the importance of factual accuracy and the socio-institutional illegitimacy generated by wrongful convictions. Drawing upon recent inquiries …
A Brave New World Of Criminal Justice: Neil Gerlach's Genetic Imaginary, Steve Coughlan
A Brave New World Of Criminal Justice: Neil Gerlach's Genetic Imaginary, Steve Coughlan
Articles, Book Chapters, & Popular Press
In this well written and intriguing book, Neil Gerlach asks why the criminal justice system has accepted DNA evidence in much the same way that our Anglo-Saxon predecessors accepted trial by ordeal. Why have we not instead shown the same caution we show polygraph evidence? To be sure, he does not present the issue in those terms, and might shudder at the analogy. Still, the central issue he pursues in the book is the question of how DNA evidence has managed to assume its current aura of infallibility, as evidence which is somehow uniquely objective and "true": how it has …
The Criminal Defence Lawyer's Role, David Layton
The Criminal Defence Lawyer's Role, David Layton
Dalhousie Law Journal
Defence lawyers often fight to prevent the conviction of people who have committed serious crimes. How can this role be justified? In providing his answer the author generally accepts the traditional view of criminal lawyering according to which defence counsel "does good" by ensuring that the state does not obtain a conviction in the absence of proof beyond a reasonable doubt based on admissible and reliable evidence Ethical advocacy in the criminal context is thus heavily influenced by a conception of justice that includes not only the search for truth but also due process rights for accused persons. The author …
Psychiatric Evidence Of Sexual Assault Victims: The Need For Fundamental Change In The Determination Of Relevance, Sadie Bond
Dalhousie Law Journal
What follows is a discussion of the use of evidence of the complainant's psychiatric history in sexual assault trials. I will argue that the introduction of this evidence is sought mainly for the purpose of discrediting the complainant's testimony, as part of an "attack the victim" strategy. The admissibility of this evidence as relevant is the product of unfounded myths and sex-biased, if not misogynist, views about women. This evidence is rarely, if ever, relevant and its minimal probative value is, in most cases, far outweighed by its potential for exacerbating or perpetuating sex bias in the sexual assault trial. …