The Criminal Trial, the Rule of Law and the Exclusion of Unlawfully Obtained Evidence

Ho, Hock Lai

doi:10.1007/s11572-014-9304-7

Cited by 7 publications

(3 citation statements)

References 20 publications

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“…But we know that trials should also be fair, respectful, follow rule of law, and much else. These will require some rules that reduce accuracy, as when probative evidence is excluded because it would be unfair to the defendant or would enable too much power on the part of the state (Ho 2016).…”

Section: Justificationmentioning

confidence: 99%

In defense of exclusionary reasons

Adams

2020

Philos Stud

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Forthcoming in Philosophical Studies. Please refer to the published version. AbstractExclusionary defeat is Joseph Raz's proposal for understanding the more complex, layered structure of practical reasoning. Exclusionary reasons are widely appealed to in legal theory and consistently arise in many other areas of philosophy. They have also been subject to a variety of challenges. I propose a new account of exclusionary reasons based on their justificatory role, rejecting Raz's motivational account and especially contrasting exclusion with undercutting defeat. I explain the appeal and coherence of exclusionary reasons by appeal to commonsense value pluralism and the intermediate space of public policies, social roles, and organizations. We often want our choices to have a certain character or instantiate a certain value and in order to do so, that choice can only be based on a restricted set of reasons. Exclusion explains how pro tanto practical reasons can be disqualified from counting towards a choice of a particular kind without being outweighed or undercut.1 Although we sometimes we refer to a fact as the same reason across cases because it can be in more than one reason, I will avoid this; the reason is the relation between the fact, object, and agent, not the fact alone.

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Section: Justificationmentioning

confidence: 99%

In defense of exclusionary reasons

Adams

2020

Philos Stud

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“…Parkhomenko write that the absence of these norms in Russian criminal legislation is a specific legal phenomenon (Parkhomenko, Milyukov, and Nikulenko 2020); Sukhova focuses the meaning of legitimacy and unlawfulness is ambiguous and limited (Sukhova 2020); Yudin emphasizes with the court's ability to overcome the judicial act that has entered into force by adopting a new decision of similar content is the most significant criterion (Yudin 2023), and Ho explain with The admission of unlawfully obtained evidence is inherently problematic). However, this article generally reviews the same topics as its predecessors from a different substance than the previous article (Ho 2016). Thus, after explaining the background of the problem in this study, the author makes a formulation of the problem, namely whether the act of hindering the process of turning the name of the certificate can be categorized as an act against the law.…”

Section: Introductionmentioning

confidence: 99%

“…Unlawful Acts contained in Article 1365 of the Civil Code, it is said that "every act that violates the law and causes a loss to another person, it is obligatory for the person who for his mistake publishes the loss, to compensate for the losses that arise". Grigorev (2023), Mulyanto (2022) Parkhomenko (2019), Sukhova (2020, Yudin (2023), Ho (2016) all discuss the legal and social implications of unlawful acts in the context of the inhibition of the certificate name reversal process. Grigorev emphasizes the public wrongfulness of falsifying public registries (Grigorev 2023), while Mulyanto focuses on the protection of land rights certificate holders and the potential financial losses they may incur due to the blocking of their certificates.…”

Section: Introductionmentioning

confidence: 99%

Normative Analysis of Unlawful Acts in the Context of Inhibition of the Certificate Name Reversal Process

Jatmiko,

Yuniarlin

2023

walrev

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This paper discusses illegal acts that hinder the process of turning over the certificate's name. An unlawful act can be categorized as an unlawful act if the act causes harm to other parties. There are two kinds of losses incurred by unlawful acts, namely material losses, and immaterial losses. With a normative approach, this article finds that an act is categorized as an act against the law if it meets the five elements of an unlawful act. Unlawful acts committed by the seller if based on the Cilacap District Court Decision number 25 / Pdt.G / 2017 / PNClp, namely the existence of an act (the act of buying and selling land), an unlawful act (reselling the object of sale and purchase and delaying the process of returning the name of the certificate), victim losses (immaterial losses), a causal relationship between the act and losses (defendants whose whereabouts are unknown), the offender's fault (reselling the object of buying and selling land). Thus, the author agrees with the judge of the Cilacap District Court that the lawsuit over the dispute is an illegal act.Tulisan ini membahas tentang perbuatan melawan hukum yang timbul dalam menghambat proses balik nama sertifikat. Suatu perbuatan melanggar hukum dapat dikategorikan sebagai perbuatan melawan hukum apabila perbuatan tersebut menimbulkan kerugian bagi pihak lain. Ada dua macam kerugian yang ditimbulkan oleh perbuatan melawan hukum yaitu kerugian materiil dan kerugian immaterial. Dengan pendekatan normatif, artikel ini menemukan bahwa suatu perbuatan dikategorikan sebagai perbuatan melawan hukum jika memenuhi lima unsur perbuatan melawan hukum. Perbuatan melawan hukum yang dilakukan oleh penjual jika berdasarkan pada Putusan Pengadilan Negeri Cilacap nomor 25/Pdt.G/2017/PNClp yaitu adanya Suatu perbuatan (perbuatan jual beli tanah), perbuatan melawan hukum (menjual kembali objek jual beli dan menunda proses balik nama sertifikat), kerugian korban (kerugian immaterial), hubungan kausalitas antara perbuatan dengan kerugian (tergugat yang tidak diketahui keberadaanya), kesalahan pelaku (menjual kembali objek jual beli tanah). Dengan demikian, penulis sependapat dengan hakim Pengadilan Negeri Cilacap bahwa gugatan atas sengketa tersebut termasuk perbuatan melawan hukum

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Exclusionary Rules—Is It Time for Change?

Gless

Macula

2019

Ius Gentium: Comparative Perspectives on Law and Justice

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This chapter explores whether exclusionary rules serve as efficient tools to streamline criminal procedure in a way that safeguards the rights of an accused or whether they exist merely as law on the books with limited actual utility. Relevant benchmarks for the evaluation of exclusionary rules are discussed, in addition to their structure. The question of which characteristics of exclusionary rules optimize the protection of procedural rights is analyzed along with other options to prevent violations. Possible alternatives to exclusionary rules are suggested to help answer the question: Is it time for a change? 1 Exclusionary Rules-Efficient Tools or Illusory Giants (紙老虎)? Exclusionary rules have long been a topic of interest for legal scholars and the subject of comprehensive study in law journals and textbooks. 1 The concept originated in common law and was later adopted by civil law and so-called mixed systems and, most recently, in China. 2 In the Western world, exclusionary rules are featured in flashy criminal cases, detective novels, and movies.

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The Criminal Trial, the Rule of Law and the Exclusion of Unlawfully Obtained Evidence

Cited by 7 publications

References 20 publications

In defense of exclusionary reasons

In defense of exclusionary reasons

Normative Analysis of Unlawful Acts in the Context of Inhibition of the Certificate Name Reversal Process

Exclusionary Rules—Is It Time for Change?

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