Journal Article•
Common Law Evidence and the Common Law of Human Rights: Towards a Harmonic Convergence?
01 Mar 2019-William and Mary Bill of Rights Journal (Bill of Rights Journal)-Vol. 27, Iss: 3, pp 689
TL;DR: In this article, the impact of European Human Rights Law on the common law rules of evidence with reference to the approach the European Court of Human Rights (ECtHR) has adopted towards exclusionary rules has been considered.
Abstract: This Article considers the impact which European Human Rights Law has made upon the common law rules of evidence with reference to the approach the European Court of Human Rights (ECtHR) has adopted towards exclusionary rules of evidence. Particular attention will be given to rules that have been developed by the ECtHR in relation to the right to counsel during police questioning (the so-called “Salduz” doctrine) and the right to examine witnesses (the so-called “sole or decisive” evidence rule). The Article argues that the effect of these rules has encouraged common law judges to engage more holistically with the effect of certain kinds of evidence on both the weight of the evidence as a whole and on the fairness of the proceedings as a whole. The result has been to encourage a shift in the nature of both their epistemic and non-epistemic reasoning during the trial. In its most recent decisions, however, the Court appears to have drawn back from its more activist stance of setting standards of fair participation in evidentiary matters. Instead, the Court has become more fixated on the traditional common law concern with reliability. This has somewhat pushed back the potential that the ECtHR has to shift the common law toward reaching a more harmonic convergence between achieving truth and fairness in criminal proceedings.
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27 Jan 2020
TL;DR: In this paper, a tesis extendida en materia de derecho de confrontacion, segun la cual la falta de una oportunidad de interrogar a testo de cargo no disponible for el juicio vedaria la admision de la declaracion previa, is discussed.
Abstract: El autor critica una tesis extendida en materia de derecho de confrontacion, segun la cual la falta de una oportunidad de interrogar a un testigo de cargo no disponible para el juicio vedaria la admision de la declaracion previa. Se analiza primero esa tesis desde una perspectiva instrumental-epistemica de la confrontacion. Pero el aporte mas significativo es el analisis de aquellas propuestas teoricas que defienden una regla rigida de inadmision con base en razones no epistemologicamente dependientes. Por un lado, se examina si tiene sentido la idea de derechos procesales de intervencion del acusado valiosos en si mismos, no-instrumentales. Por el otro, se evalua la capacidad de rendimiento de algunas de las posiciones mas relevantes en esa linea, para concluir en que no alcanzan para justificar la tesis criticada.
9 citations
TL;DR: In this article, the authors considered the allocation of the burden of proof before international human rights bodies, with attention to six different judicial and quasi-judicial bodies, including the European Court of Human Rights.
Abstract: This article considers the allocation of the burden of proof before international human rights bodies, with attention to six different judicial and quasi-judicial bodies – the European Court of Hum...
8 citations
Journal Article•
TL;DR: The William & Mary Bill of Rights Journal dedicates itself to the study of constitutions and holds a symposium on international law every year since 2003 as discussed by the authors, which is a somewhat nifty and perhaps even outré move.
Abstract: The William & Mary Bill of Rights Journal dedicates itself to the study of constitutions. Although the Journal begins in (and with) the United States, it also comparatively looks abroad to foreign venues. In light of its mission, however, the fact that the Journal holds a symposium on international law is a somewhat nifty—perhaps even outré—move. It is so because one major difference between law at the international level and law at the national level is that law at the international level lacks much in the way of intentional constitutionalism. While considerable scholarly work posits (or questions) an emergent constitutionalization of international law and the idea(l) of global constitutionalism, one thing remains clear: the international legal order is bereft of any formal, unitary constitution. Assuredly, there are “constitutionalish” instruments at the international level. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights are two that spring to mind. Many other widely ratified international instruments serve “constitutionalish” functions to protect and empower specific groups: conventions, for example, promoting the best interests of the child, the elimination of all forms of discrimination against women, and the rights of persons with disabilities. Certain public international organizations moreover may have their own enabling instruments that functionally structure their internal and external operations and define them as legal entities. These instruments are more institutional or constitutive than constitutional, however. They can be loosely analogized to corporate articles of incorporation.
2 citations
TL;DR: A comment on S. J. Summers' "Epistemic Ambitions of the Criminal Trial: Truth, Proof and Rights" can be found in this paper , where the authors discuss the importance of truth, proof and rights in criminal trials.
Abstract: A comment on S. J. Summers «Epistemic Ambitions of the Criminal Trial: Truth, Proof and Rights»
TL;DR: In this paper , a more flexible approach to the admissibility and evaluation of evidence is advocated, one conceived within a communitarian ideology whose purpose is to promote penal interventions which enhance social justice.
Abstract: Judges and magistrates are often criticised for failing to take sufficient account of social factors such as poverty and social deprivation when sentencing offenders. The implication is that the sentencing practices of the courts lack an important social dimension—that of ‘social justice’—namely, the perception that the punishment of criminalised behaviour by the state is fair and non-discriminatory. This article asserts that the notion of ‘social justice’ sits uneasily with the values that sustain the existing paradigm of adversarial trial. It is argued that shifting the focus of the adversarial trial away from its narrow preoccupation with individual accountability towards a more communitarian model of penal accountability would significantly enhance the moral credibility of sentencing and its social impact. A more flexible approach to the admissibility and evaluation of evidence is advocated, one conceived within a communitarian ideology whose purpose is to promote penal interventions which enhance social justice.
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TL;DR: In 2017, more than 173,500 people were shot, 39,700 of which died, and nearly 109 people died from guns and 366 suffered non-fatal firearm injuries.
Abstract: Our research reveals an incontrovertible fact: gun violence in the United States has reached crisis proportions. In 2017, the most recent year for which Center for Disease Control (“CDC”) data is available, more than 173,500 people were shot, 39,700 of which died – the highest annual rate in decades. Every day in 2017, on average, nearly 109 people died from guns and 366 suffered nonfatal firearm injuries. This is a complex problem that includes homicides, suicides, and mass shootings, which take place with alarming frequency in schools, places of worship, theaters, and at concerts. Youth, women, and individuals of color are disproportionately victimized by U.S. gun violence. Gun violence also causes psychological stress and mental harm, including post-traumatic stress disorder (PTSD) and depression, for both the direct victims of violence and the broader public, and the crisis has fostered a general climate of fear and uncertainty that interferes with the enjoyment of fundamental human rights.
46 citations
Journal Article•
11 citations
27 Jan 2020
TL;DR: In this paper, a tesis extendida en materia de derecho de confrontacion, segun la cual la falta de una oportunidad de interrogar a testo de cargo no disponible for el juicio vedaria la admision de la declaracion previa, is discussed.
Abstract: El autor critica una tesis extendida en materia de derecho de confrontacion, segun la cual la falta de una oportunidad de interrogar a un testigo de cargo no disponible para el juicio vedaria la admision de la declaracion previa. Se analiza primero esa tesis desde una perspectiva instrumental-epistemica de la confrontacion. Pero el aporte mas significativo es el analisis de aquellas propuestas teoricas que defienden una regla rigida de inadmision con base en razones no epistemologicamente dependientes. Por un lado, se examina si tiene sentido la idea de derechos procesales de intervencion del acusado valiosos en si mismos, no-instrumentales. Por el otro, se evalua la capacidad de rendimiento de algunas de las posiciones mas relevantes en esa linea, para concluir en que no alcanzan para justificar la tesis criticada.
9 citations
TL;DR: In this article, the authors considered the allocation of the burden of proof before international human rights bodies, with attention to six different judicial and quasi-judicial bodies, including the European Court of Human Rights.
Abstract: This article considers the allocation of the burden of proof before international human rights bodies, with attention to six different judicial and quasi-judicial bodies – the European Court of Hum...
8 citations
TL;DR: The European Court of Human Rights (the ECtHR or ‘the Court’) has gradually developed considerable jurisprudence affirming the right to access a lawyer prior to or during police interrogation, with...
Abstract: The European Court of Human Rights (the ECtHR or ‘the Court’) has gradually developed considerable jurisprudence affirming the right to access a lawyer prior to or during police interrogation, with...
5 citations