Can rules of criminal evidence be devised that would be uniform across jurisdictions?

K Law (General);KD England and Wales;KF United States Federal Law

Kangur, Andreas ; Leverick, Fiona

University:University of Glasgow

Department:School of Law

关键词: criminal evidence law, comparative evidence law, law and psychology, hearsay, evidence of prior convictions, standard of proof;   

Others  :  http://theses.gla.ac.uk/6388/7/2015kangurphd.pdf

来源: University of Glasgow

【 摘 要 】

The thesis focuses on comparative criminal evidence law and sets out to explore whether it is possible to devise rules of criminal evidence that would suit different jurisdictions. This work should be treated as an exploratory project as it aims to find a suitable approach and then test it using three different rubrics of evidence law – evidence of prior convictions, hearsay evidence and standard of proof. Those rubrics in six different jurisdictions will be examined.The thesis first discusses the mainstream dichotomous approach to comparative criminal procedure and evidence, concluding that the inquisitorial-adversarial distinction has by today lost much of its descriptive power and was never meant to be a normative model. Instead, the author finds that all Western style jurisdictions today are concerned with accurate fact-finding and in order to facilitate accurate fact-finding, should take into consideration the cognitive needs and abilities of fact-finders. Since for the most part human cognition is universally the same, this psychology-based approach can serve as a foundation for evaluating the evidentiary regulation – and unless some extra-epistemic factors prevail, should guide legislatures towards optimizing and unifying their evidentiary regulation.Based on the recent studies in legal psychology, the author offers recommendations that would be workable in all sample jurisdictions. This is in part possible because empirical research tends to debunk often-held beliefs about professional judges being far superior fact-finders immune from the cognitive biases and emotional appeal usually attributed to jurors.