Evidence Commons^™

Privacy And Security Across Borders, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

Three recent initiatives -by the United States, European Union, and Australiaare opening salvos in what will likely be an ongoing and critically important debate about law enforcement access to data, the jurisdictional limits to such access, and the rules that apply. Each of these developments addresses a common set of challenges posed by the increased digitalization of information, the rising power of private companies delimiting access to that information, and the cross-border nature of investigations that involve digital evidence. And each has profound implications for privacy, security, and the possibility of meaningful democratic accountability and control. This Essay analyzes the …

Attorney-Client Privilege & International Arbitration, Ibrahim Shehata

Cardozo Journal of Conflict Resolution

This article attempts to offer a new perspective to the existing debate concerning the applicable standard of attorney-client privilege in international commercial and investment arbitration. This article starts by analyzing the main convergences and divergences in the concept of attorney-client privilege across four national jurisdictions. In this regard, this article sheds light upon the divergence of opinions between international arbitration scholars in the literature and how international arbitration operates in practice. For instance, the standard of the "most-protective law," which most arbitration scholars vouch should be the right answer, is not actually the most featured standard in the published arbitral …

The (Not-So) “Brave New World Of International Criminal Enforcement”: The Intricacies Of Multi-Jurisdictional White-Collar Investigations, Emily T. Carlson

Brooklyn Law Review

We have entered a new age of international white-collar crime and are seeing the growing interdependency of the Department of Justice (DOJ) and parallel foreign agencies to conduct investigations and subsequent prosecutorial proceedings. This coordination to combat these crimes, however, has revealed a troubling question—how can enforcement agencies work effectively together if they have fundamental differences in the legal authority governing testimony-gathering and what evidence is allowed before a grand jury? The Court of Appeals for the Second Circuit, in United States v. Allen, confronted this issue directly as it overturned two indictments arising out of suspected manipulation of a …

Safety From Flawed Forensic Sciences Evidence, Boaz Sangero

Georgia State University Law Review

This article addresses the way to safety in the context of forensic sciences evidence. After presenting the current lack of safety, which I term “unsafety,” I raise some possible safety measures to contend with this. My suggestions are grounded on two bases: first, the specific analysis of each type of evidence in line with the most recent research on the subject; and second, modern safety theory and its application to the criminal justice system. It is important to stress that my proposals represent only some of the conceivable safety measures. Developing a comprehensive safety theory for the criminal justice system …

The Uk Forensic Science Regulator: A Model For Forensic Science Regulation?, Carole Mccartney, Emmanuel N. Amoako

Georgia State University Law Review

The use of an array of scientific techniques and technologies is now considered customary within criminal justice, with technological developments and scientific advancements regularly added to the crime investigator’s arsenal. However, the scientific basis, reliability, and fallibility of the application of such “forensic science” (and the resulting scientific evidence) continues to come under intense scrutiny. In response to apparently irremediable problems with the quality of scientific evidence in the United Kingdom (UK), the government created the role of “Forensic Science Regulator” in 2007.

The introduction of a regulator was intended to establish quality standards for all forensic science providers in …

The Missing American Jury: Restoring The Fundamental Constitutional Role Of The Criminal, Civil, And Grand Juries, Anna Roberts

Faculty Publications

(Excerpt)

This is a bold book. Professor Thomas urges that the jury—criminal, civil, and grand—be recognized as a fourth “branch” (p. 5). She asserts that procedures that have contributed to the reduction of the jury’s power—including summary judgment and state prosecution without grand juries—are unconstitutional. And, as a Plan B if her constitutional arguments do not prevail, she proposes big changes that include informing juries about sentence exposure, presenting juries with any charges that were offered in plea bargaining, and requiring that juries justify their verdicts.

To Understand Us V. Microsoft, Consider 'Acme V. Shamrock', Peter B. Rutledge, Amanda W. Newton

Popular Media

The February 27, 2018, Supreme Court argument in United States v. Microsoft Corp. raises profound questions about issues of executive power, corporate governance, technology, judicial power and international affairs. At stake for the government is the scope of its investigative authority to obtain information located in a foreign country, irrespective of that country’s laws. At stake for Microsoft is its ability to organize its international corporate affairs and the predictability of the laws that will govern those affairs. This article analyzes the potential effects of this critical Supreme Court case.

The Contributions Of United Nations Security Council Resolutions To The Law Of Non-International Armed Conflict: New Evidence Of Customary International Law, Gregory H. Fox, Isaac Jenkins, Kristen E. Boon

Law Faculty Research Publications

No abstract provided.

User-Generated Evidence, Rebecca Hamilton

Scholarly Articles in Law Reviews & Journals

Around the world, people are using their smartphones to document atrocities. This Article is the first to address the implications of this important development for international criminal law. While acknowledging the potential benefits such user-generated evidence could have for international criminal investigations, the Article identifies three categories of concern related to its use: (i) user security; (ii) evidentiary bias; and (iii) fair trial rights. In the absence of safeguards, user-generated evidence may address current problems in international criminal justice at the cost of creating new ones and shifting existing problems from traditional actors, who have institutional backing, to individual users …

Microsoft Ireland, The Cloud Act, And International Lawmaking 2.0, Jennifer Daskal

Scholarly Articles in Law Reviews & Journals

On March 23, President Trump signed the CLOUD Act, 1 thereby mooting one of the most closely watched Supreme Court cases this term: the Microsoft Ireland case. 2 This essay examines these extraordinary and fast-moving developments, explaining how the Act resolves the Supreme Court case and addresses the complicated questions of jurisdiction over data in the cloud. The developments represent a classic case of international lawmaking via domestic regulation, as mediated by major multinational corporations that manage so much of the world's data.

Testimonial Injustice In International Criminal Law, Shannon Fyfe

Scholarly Articles

In this article, I consider the possibilities and limitations for testimonial justice in an international criminal courtroom. I begin by exploring the relationship between epistemology and criminal law, and consider how testimony contributes to the goals of truth and justice. I then assess the susceptibility of international criminal courts to the two harms of testimonial injustice: epistemic harm to the speaker, and harm to the truth-seeking process. I conclude that international criminal courtrooms are particularly susceptible to perpetrating testimonial injustice. Hearers in the international criminal courtroom should practice testimonial justice, but the institution is not structured in a way that …

Deconstructing The Epistemic Challenges To Mass Atrocity Prosecutions, Nancy Amoury Combs

Faculty Publications

Mass atrocity prosecutions are credited with advancing a host of praiseworthy objectives. They are believed to impose much-needed retribution, deter future atrocities, and affirm the rule of law in previously lawless societies. However, mass atrocity prosecutions will accomplish none of these laudable ends unless they are able to find accurate facts. Convicting the appropriate individuals of the appropriate crimes is a necessary and foundational condition for the success of mass atrocity prosecutions. But it is a condition that is frequently difficult to meet, as mass atrocity prosecutions are often bedeviled by pervasive and invidious obstacles to accurate fact-finding. This Article …

Reliability Of Expert Evidence In International Disputes, Matthew W. Swinehart

Michigan Journal of International Law

Part I of this article traces the historical trends in the use of expert evidence in international disputes, from the scattered reliance on experts in the nineteenth and early twentieth centuries to the ubiquity of experts in modern disputes. With that perspective, Part II examines how decision makers have attempted to ensure reliability of the expert evidence that is flooding the evidentiary records of international disputes, while Part III outlines the many problems that still remain. Finally, Part IV proposes a non-exhaustive and nonbinding checklist of questions for analyzing the reliability of any type of expert evidence.

When "Getting It Right" Is What Matters Most, Arbitrations Are Better Than Trials, Wayne D. Brazil

Cardozo Journal of Conflict Resolution

Serving as an arbitrator since retiring from the bench has inspired me to think about the quality of the adjudicative process in new ways-and to assess, from an insider's perspective, the pros and cons of trials (especially court trials) and arbitrations. The purpose of this essay is to share my thoughts on this subject-some of which have surprised me.

Grave Crimes And Weak Evidence: Fact-Finding Evolution In International Criminal Law, Nancy Amoury Combs

Faculty Publications

International criminal courts carry out some of the most important work that a legal system can conduct: prosecuting those who have visited death and destruction on millions. Despite the significance of their work--or perhaps because of it--international courts face tremendous challenges. Chief among them is accurate fact-finding. With alarming regularity, international criminal trials feature inconsistent, vague, and sometimes false testimony that renders judges unable to assess with any measure of certainty who did what to whom in the context of a mass atrocity. This Article provides the first-ever empirical study quantifying fact-finding in an international criminal court. The study shines …

International White Collar Crime And The Globalization Of Internal Investigations, Lucian E. Dervan

Fordham Urban Law Journal

Much has been written about the methods by which counsel may efficiently, thoroughly, and credibly conduct internal investigations. Given the globalization of such matters, however, this Article seeks to focus on the challenges present when conducting an internal investigation of potential international white-collar criminal activity. In Part I, this Article will examine the challenges of selecting counsel to perform internal investigations abroad. In particular, consideration will be given to global standards regarding the application of the attorney-client privilege and work product protections. In Part II, this Article will discuss the influence of data privacy and protection laws in various countries …

From Nuremberg To Kenya: Compiling The Evidence For International Criminal Prosecutions, Jennifer Stanley

Vanderbilt Journal of Transnational Law

The Prosecutor of the International Criminal Court has encountered significant difficulty in conducting investigations. Faced with violence on the ground, witnesses who fear repercussions, and limitations on resources, the Prosecutor has turned to relying on secondary forms of evidence, such as the reports of NGOs and other third-party information providers.

This Note argues that the Prosecutor's use of such evidence is problematic because it fails to adequately follow the evidentiary rules of the Court and, subsequently, to protect the rights of witnesses and defendants. Moreover, the Office of the Prosecutor's dependence on third-party evidence has stunted the Prosecutor's ability to …

The Changing Face Of The Rule Against Hearsay In English Law, R. A. Clark

Akron Law Review

The rule against hearsay has always been surrounded by an aura of mystery and has been treated with excessive reverence by many English judges. Traditionally the English courts have been reluctant to allow any development in the exceptions to this exclusionary rule, regarding hearsay evidence as being so dangerous that even where it appears to be of a high probative calibre it should be excluded at all costs. But recent developments, both statutory and common law, have demonstrated a much more relaxed approach to this rule. In civil cases the hearsay rule has been contained in statutory form for some …

The Admissibility Of Confessions Compelled By Foreign Coercion: A Compelling Question Of Values In An Era Of Increasing International Criminal Cooperation, Geoffrey S. Corn, Kevin Cieply

Pepperdine Law Review

This Article proceeds on a simple and clear premise: a confession extracted by torture or cruel, inhuman, or degrading treatment should never be admitted into evidence in a U.S. criminal trial. Whether accomplished through extending the Due Process or Self-Incrimination based exclusionary rules to foreign official coercion, or by legislative action, such exclusion is necessary to align evidentiary practice regarding confessions procured by foreign agents with our nation's fundamental values as reflected in the Fifth Amendment and our ratification of the CAT. This outcome is not incompatible with Connelly. Rather, this Article explores the limits of the Court's language in …

Obtaining International Judicial Assistance Under The Federal Rules And The Hague Convention On The Taking Of Evidence Abroad In Civil And Commercial Matters: An Exposition Of The Procedures And A Practical Example: In Re Westinghouse Uranium Contract Litigation, Robert J. Augustine

Georgia Journal of International & Comparative Law

No abstract provided.

International Arbitration: Demographics, Precision And Justice, Susan Franck, James Freda, Kellen Lavin, Tobias A. Lehmann, Anne Van Aaken

Contributions to Books

ICCA Congress Series No. 18 comprises the proceedings of the twenty-second Congress of the International Council for Commercial Arbitration (ICCA), held in Miami in 2014. The articles by leading arbitration practitioners and scholars from around the world address the challenges, both perceived and real, to the legitimacy of international arbitration.

The volume focusses on the twin pillars of legitimacy: justice, in procedure and outcome, and precision at every phase of the proceedings. Contributions on justice explore issues related to diversity, fairness and whether arbitral institutions can do more to foster legitimacy – based on the responses of nine international arbitral …

Letting Innocence Suffer: The Need For Defense Access To The Law Enforcement Dna Database, Jason Kreag

Cardozo Law Review

Law enforcement has gradually amassed a sizable DNA database that holds considerable promise for solving cold cases and identifying suspects. The Supreme Court has blessed this effort, allowing investigators to include profiles of arrestees as well as convicted persons in the database. At present, though, law enforcement has a near monopoly on use of the DNA database, leaving defendants at the whim of the law enforcement officials who control access to this tool. Legal scholars have alternatively praised and decried the database, but none has examined its prospects for proving defendants' innocence post-conviction. This Article fills that void by identifying …

Hague Evidence Convention: A Practical Guide To The Convention, United States Case Law, Convention - Sponsored Review Commissions (1978 And 1985), And Responses Of Other Signatory Nations: With Digest Of Cases And Bibliography, Denise L. Dunham

Georgia Journal of International & Comparative Law

No abstract provided.

Conducting U.S. Discovery In Asia: An Overview Of E-Discovery And Asian Privacy Laws, Lynn M. Marvin, Yohance Bowden

Richmond Journal of Law & Technology

The rapid expansion over the last decade of Asian corporations doing business in the United States and U.S. corporations doing business in Asia, has led to a marked increase in U.S. litigation involving Asian corporations as parties, requiring discovery of information located in Asia. According to the Office of the United States Trade Representative, U.S. trade of goods and services with countries in the Asia-Pacific Economic Cooperation (“APEC”) totaled $2.9 trillion in 2013: exports totaled $1.2 trillion and imports totaled $1.6 trillion. It naturally follows that Asian corporations doing business in the United States are utilizing the American court system …

Re-Assessing The Evidentiary Regime Of The International Court Of Justice: A Case For Codifying Its Discretion To Exclude Evidence, Siyuan Chen

Research Collection Yong Pung How School Of Law

Like many international tribunals, the International Court of Justice subscribes heavily to the principle of free admissibility of evidence. Neither its statute nor rules impose substantive restrictions on the admissibility of evidence, whether by way of exclusionary rules or an exclusionary discretion. Instead, the court’s practice has been to focus on evaluating and weighing the evidence after it has been admitted. There are certainly features of the ICJ that sets it apart from domestic courts and arguably justify such an approach: the ICJ is for settling disputes between sovereign states; it does not use a typical fact-finding system; its rules …

When Skeletons Come Out Of The Closet: Implications Of The Bosnian Genocide Decision For Serbia's Eventual Eu Accession, Edina Slomic

Georgia Journal of International & Comparative Law

No abstract provided.

A Trail To Modernity: Observations On The New Developments Of China's Evidence Legislation Movement In A Global Context, Jia Li, Zhuhao Wang

Indiana Journal of Global Legal Studies

China, like most other civil law countries, does not have a discrete evidence code. Rather, Chinese evidence rules are currently scattered among various procedural codes. Since the beginning of the twenty-first century, Chinese scholars and practitioners have advocated for specialized evidence legislation. As part of this movement, China issued numerous judicial interpretations of evidence law, amendments to existing procedural law, and experimental drafts of evidence statutes. For example, new amendments to the Civil Procedure Law and to the Criminal Procedure Law became effective on January 1, 2013. More recently, the Supreme People's Court led the efforts to create two experimental …

Mock Trials And Real Justices And Judges, Richard A. Posner

Cardozo Law Review

No abstract provided.

Neuroscience In The Courtroom: An International Concern, Dominique J. Church

William & Mary Law Review

No abstract provided.

The International Court Of Justice's Treatment Of Circumstantial Evidence And Adverse Inferences, Michael P. Scharf, Marqaux Day

Faculty Publications

This Article examines a vexing evidentiary question with which the International Court of Justice has struggled in several cases, namely: What should the Court do when one of the parties has exclusive access to critical evidence and refuses to produce it for security or other reasons? In its first case, Corfu Channel, the Court decided to apply liberal inferences of fact against the non-producing party, but in the more recent Crime of Genocide case, the Court declined to do so under seemingly similar circumstances. By carefully examining the treatment of evidence exclusively accessible by one party in these and other …