The Internationalisation of Criminal Evidence

Abstract

Although there are many texts on the law of evidence, surprisingly few are devoted specifically to the comparative and international aspects of the subject. The traditional view that the law of evidence belongs within the common law tradition has obscured the reality that a genuinely cosmopolitan law of evidence is being developed in criminal cases across the common law and civil law traditions. By considering the extent to which a coherent body of common evidentiary standards is being developed in both domestic and international jurisprudence, John Jackson and Sarah Summers chart this development with particular reference to the jurisprudence on the right to a fair trial that has emerged from the European Court of Human Rights and to the attempts in the new international criminal tribunals to fashion agreed approaches towards the regulation of evidence.

De Legé v. the Netherlands: The ECtHR adopts a line of reasoning similar to that of the United States Supreme Court on compelled production of real or physical evidence

“…Consequently, even though such documents had an existence independent of the will of the applicant, their production depended on his cooperation in handing them over. 41 In this view, since bodily samples can be obtained without the active cooperation of the defendant (for example, by using force to take them), that would not violate the right against selfincrimination. 42 The same is true when the government, by means of an entry and search warrant, seizes documents or evidence from the home of the defendant, from whom active cooperation is not required.…”

Obligation or Right? A Historical Comparison of the Criminal Confession System between China and the USA

“…However, voluntary and credible (or reliable) confessions made in the early American trials were always admissible (Thomas III & Leo, 2012), for they did not violate the Hawkins-Leach dictum. Perhaps due to the lack of widespread and efficacious warning rule in the United States, the fact was that many accused had answered questions before trial and testified at practice throughout the 19th century (Jackson & Summers, 2012). In England, William Dickinson (1813) proclaimed "the duty of the magistrate… to give him [prisoner] a reasonable caution, that he is not required to criminate himself."…”

The role of special advocates

“…Notwithstanding the suggestions in Al Rawi that CMPs would seem to cross a line that the courts have spent centuries defending, Parliament has given its approval to CMPs in a number of different contexts, and human rights law has considered that on certain conditions special advocates can make these fair. The ECtHR has referred in numerous decisions to the principle of ‘adversarial procedure’ by which it does not mean to refer to the entire adversarial tradition but rather an underlying principle that arguably pertains in ‘inquisitorial’ processes as well as ‘adversarial’ ones, namely that parties should be given ‘the opportunity to have knowledge of the observations filed and of the evidence adduced by the other party’ (for discussion, see Jackson and Summers, 2012: 86–95). Yet, as we have seen, it has been prepared to dilute this principle in national security cases even where liberty is at stake on condition that there is sufficient information given to the prisoner to enable him to give effective instructions to the special advocate.…”