Pre-verdict Judicial Fact-finding in Criminal Trials with Juries

Pattenden, Rosemary

doi:10.1093/ojls/gqn028

Cited by 5 publications

(3 citation statements)

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“…Fact-finding in common law criminal adjudication is paradigmatically a blackbox activity undertaken by lay juries or magistrates. Although trial judges do have ancillary fact-finding responsibilities in criminal trials (Pattenden 2009), their main jurisprudential task is to direct juries in relation to the jury's deliberations and verdict; whilst advocates are primarily in the business of making corresponding submissions to the court, either in the form of rival narratives impressed upon the jury during the course of the trial or in closing speeches or through doctrinal legal and factual arguments pitched to the judge (e.g., regarding the admissibility of evidence). For these, quintessentially juridical operations it is essential that legal 'presumptions' are correctly characterised, and never, ever, mixed up with inferences of fact.…”

Section: Evidentiary Versus Jurisprudential Presumptionsmentioning

confidence: 99%

Presumptuous or pluralistic presumptions of innocence? Methodological diagnosis towards conceptual reinvigoration

Roberts

2020

Synthese

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This article is a contribution to interdisciplinary scholarship addressing the presumption of innocence, especially interdisciplinary conversations between philosophers and jurists. Terminological confusion and methodological traps and errors notoriously beset academic literature addressing the presumption of innocence and related concepts, such as evidentiary presumptions, and the burden and standard of proof in criminal trials. This article is diagnostic, in the sense that its primary objective is to highlight the assumptions-in particular, the disciplinary assumptions-implicit in influential contributions to debates on the presumption of innocence. It advocates a methodologically pluralistic approach, according to which definitions of the presumption of innocence are necessarily sensitive to purpose and method. These relationships and their implications are not always appreciated, and are seldom explicitly elucidated. Notably, philosophers (and some legal scholars) routinely treat the presumption of innocence as (in some sense) epistemic, evidentiary or otherwise featuring directly in practical reasoning. This article identifies jurisprudential and practical reasons why legal scholars and practitioners (and possibly others) concerned with criminal procedure and evidence should reject evidentiary interpretations of the presumption of innocence. By encouraging finer-grained engagement with the history and institutional details of common law procedural traditions, the article aims to show why legal scholars might think that philosophical approaches to the presumption of innocence are already methodologically-loaded and, for our purposes, address the wrong questions with deficient concepts.

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Section: Evidentiary Versus Jurisprudential Presumptionsmentioning

confidence: 99%

Presumptuous or pluralistic presumptions of innocence? Methodological diagnosis towards conceptual reinvigoration

Roberts

2020

Synthese

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“…Pattenden has criticized the reasoning in Saifi but her arguments concern allegations of police misconduct rather than the questions of probative value and prejudicial effect. 83 A stricter insistence on the proponent's burden to show the probative value of the evidence would go some way towards removing what appears to be a tactical, if not a legal, burden on the opponent of the evidence to show its unreliability. 84 From the Commission's standpoint, a major drawback of both s.78 and the common law discretion 85 is that they apply only to prosecution evidence.…”

Section: According To the Court Of Appeal In R (On The Application Of Saifi) V Governor Of Brixtonmentioning

confidence: 99%

Expert Evidence and the Law Commission: Implementation without Legislation?

Ward¹

2017

Expert Evidence and Scientific Proof in Criminal Trials

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“…First, as indicated in Atkins and Reed , once admissibility is challenged the burden is on the proponent of the evidence to prove that it falls within an exception to the general rule excluding opinion evidence, 40 whereas there is no clear burden of proof where the exclusionary discretions are invoked. 41 In principle it would seem that the prosecution must prove admissibility to the criminal standard (Pattenden, 2009: 97), but because the test of ‘sufficient reliability’ itself implies that there is sufficient evidence of reliability to justify the jury in relying on the expert’s opinion, the standard of proof is of little significance. There is no meaningful distinction between evidence that is sufficient to satisfy the substantive test and evidence that is sufficient to satisfy the burden of proof.…”

Section: Rules or Discretion?mentioning

confidence: 99%

‘A new and more rigorous approach’ to expert evidence in England and Wales?

Ward

2015

The International Journal of Evidence & Proof

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An amendment to the Criminal Practice Direction issued by the Lord Chief Justice of England and Wales lays down guidance for judges to follow in determining whether expert evidence is ‘sufficiently reliable to be admitted’. Although the guidelines are based on those proposed by the Law Commission in 2011, they do not include a definition of ‘sufficiently reliable’, such as would have been provided by the Law Commission’s Draft Bill, which the government declined to introduce. A criterion of ‘sufficient reliability’ must therefore be found within the common law. This article argues that ‘sufficient reliability’ is an aspect of ‘helpfulness’ and reflects the principle that experts should provide the jury with criteria with which to assess the weight of their evidence. Reliable evidence, in short, is evidence that provides the jury with sound reasons for relying on it. This criterion could be as rigorous as that proposed by the Law Commission, and possibly more so.

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Pre-verdict Judicial Fact-finding in Criminal Trials with Juries

Cited by 5 publications

References 0 publications

Presumptuous or pluralistic presumptions of innocence? Methodological diagnosis towards conceptual reinvigoration

Presumptuous or pluralistic presumptions of innocence? Methodological diagnosis towards conceptual reinvigoration

Expert Evidence and the Law Commission: Implementation without Legislation?

‘A new and more rigorous approach’ to expert evidence in England and Wales?

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