DNA as ‘ready-made evidence’: An analysis of Portuguese judges’ views

The introduction of biological evidence in judicial settings raises particular modes of entanglement between professional cultures and perceptions of the probative value of evidence. When DNA evidence reaches court, it also challenges the perceived margins of critical assessment of the work and understandings of previous links in the chain of custody, like the criminal police, forensic experts and the public prosecution services. Given the apparent neutrality of judicial institutions, how do Portuguese judges perceive and value biological evidence? And how do judges see their articulation with other operators of the criminal justice system? An analysis of 14 interviews carried out with Portuguese judges reveals the challenges in the evaluation of biological evidence, which is characterised as a ‘safe haven’, grounded as it is on an indisputable scientific authority. The suggestion of the presence of a cultural rift emerges, which, taken with the work of other epistemic cultures, leads to biological evidence being seen as ‘ready-made evidence’ on its arrival in court, thus limiting the role of judges in its appraisal.

Towards a Normative Assessment of Probative Value in International Criminal Adjudication

The trial is an epistemic event. Yet, the manner in which the probative value of legal evidence is calculated remains largely unarticulated. Thus, in the face of an urgent requirement to advance a normative model of evidential reasoning which serves the needs of decision-makers, practitioners, and experts, this article assesses the utility of three dominant approaches, founded upon the exposition of inferences, scenarios, and probabilities. These find expression in Wigmorean, Narrative, and Bayesian network models, and a number of hybrid approaches. Through an analysis and critique of the foregoing models, the article attempts to discern the optimal normative model of evidential reasoning to be applied in international criminal trials, consonant with Twining’s formulation of rational adjudication, and assessed in accordance with a set of rational evaluation criteria drawn from New Evidence scholarship and its historical forbears.

Probing ‘operational coherence’ in Hasok Chang’s pragmatic realism

Hasok Chang is developing a new form of pragmatic scientific realism that aims to reorient the debate away from truth and towards practice. Central to his project is replacing truth as correspondence with his new notion of ‘operational coherence’, which is introduced as: 1) A success term with probative value to judge and guide epistemic activities. 2) A more useful alternative than truth as correspondence in guiding scientific practice. I argue that, given its current construal as neither necessary nor sufficient for success, operational coherence is too weak and fails to satisfy both 1) and 2). I offer a stronger construal of operational coherence which aims to improve on Chang’s account by tying it to systematic success. This makes operational coherence necessary and sufficient for (systematic) success. This new account, if successful, rescues 1) but not 2). I then take a step back and try to locate Chang’s pragmatic realism within the broader pragmatist tradition by comparing his views to the founding fathers Peirce, James and Dewey. I also assess to what extent we should consider Chang’s position ‘realist’, arguing that despite the many relativists threads running through it, Chang’s pragmatic realism is deserving of the realist label because its aims to maximize our learning from reality, even if it falls short of what many traditional realist are happy to accept as realism. I finish with comments on the epistemology of science pointing out that there is nothing intrinsic about a practice-based philosophy of science that precludes having both operational coherence and correspondence and highlighting that given a proper understanding these two notions could, in fact, be understood as complementary. I suggest one way this could be done.

The Logic of Inference and Decision for Scientific Evidence

Uncertainty is an inevitable complication encountered by members of the judiciary who face inference and decision-making as core aspects of their daily activities. Inference, in this context, is mainly inductive and relates to the use of incomplete information, to reason about propositions of interest. Applied to scientific evidence, this means, for example, to reason about whether or not a person of interest is the source of a recovered evidential material and factfinders are required to make decisions about ultimate issues, for example, regarding a defendant’s guilt. The role of forensic scientists, whose duty is to help assess the probative value of scientific findings, is to offer to mandate authorities’ conclusions that are scientifically sound and logically defensible. This chapter lays out the fundamentals of inference and decision-making under uncertainty with regard to forensic evidence. The authors explicate explain the subjectivist version of Bayesianism and analyze the usefulness of the likelihood ratio in for measuring the degree to which the evidence discriminates between competing propositions in a trial. They also underscore emphasize the importance of decision analysis as a framework that forces helps decision-makers to formalize preference structures.

Generalizations and Reference Classes

This chapter examines the implications of the reference-class problem for attempts to model the probative value of evidence in mathematical terms. This examination makes three distinct contributions to evidence scholarship. First, and most importantly, it articulates and explains the problematic relationship between algorithmic tools and legal decision-making. Second, it points out serious pitfalls to be avoided for analytical or empirical studies of juridical proof. Third, it indicates when algorithmic tools may be more or less useful in the evidentiary process. As such, the chapter offers yet another demonstration of the very complex set of relationships involving human knowledge and rationality, on the one hand, and attempts to reduce either to a set of formal concepts, on the other.

Whither, hither and thither, Res Gestae? A comparative analysis of its relevance and application

In Singapore, the common law doctrine of r es gestae (‘RG’) risks becoming extinct given the statutory inclusions of hearsay evidence. Further, the test for RG is unsettled. This article thus argues that RG is still relevant but must be applied principally. It is relevant because first, it is unwise to uproot a doctrine existing since 1808. Second, comparative analysis of cases from United Kingdom, India, New Zealand and Australia evinces the residual need for RG. Third, a modified approach to applying it can in fact exclude inadmissible evidence. This article further proposes a three-strand test. First, as a preliminary requirement, objectively, there was no concoction involved. Second, the evidence must relate to a fact-forming part of the same transaction but was not contemplated in s. 32(1) of the Evidence Act. Third, the evidence must have sufficient probative value to outweigh its prejudicial effect.

THE PROBATIVE VALUE OF POST-OFFENCE CONDUCT EVIDENCE

In certain circumstances, post-offence conduct can provide circumstantial evidence of guilt. It is, however, often difficult to state why a particular type of post-offence conduct makes guilt probable. The objective of this contribution is to identify principles that could assist in determining the probative value of certain types of postoffence circumstantial evidence. It is shown, with reference to specific types of postoffence conduct, that it is mostly speculative to make any inference from such evidence. In the end, it is submitted that the principles governing the assessment of circumstantial evidence will only allow an inference of guilt to be drawn from postoffenceconduct if the inference was established beyond a reasonable doubt. It will not be enough to draw an inference from facts which were not, themselves, proved beyond a reasonable doubt, but which were merely accepted upon reasonable grounds.

Guarding the Gait: Evaluating Forensic Gait Analysis Evidence

Novel scientific evidence challenges courts in terms of how they can evaluate reliability for the purposes of making admissibility decisions and assigning probative value to information that is adduced before them. An example of such problematic evidence is forensic gait analysis evidence which is in its infancy as a discipline of forensic science. This chapter reviews how objections to forensic gait analysis evidence have been handled in judicial decisions at first instance and on appeal in Canada, the United Kingdom and Australia. It identifies vulnerabilities in such evidence, especially when jurors are required to incorporate expert opinions (often from podiatrists) about the similarities in gait between that of the accused and a person seen on CCTV footage. The chapter expresses concern about the current scientific basis for such evidence in the absence of well developed databases in relation to gait characteristics, difficulties that characterise interpretation of CCTV footage, and the role that subjective issues can play in analyses by experts in gait interpretation. It notes a United Kingdom initiative in formulating a code of practice for forensic gait analysts but calls for caution in relation to reception and weight to be attached to such evidence until its scientific status becomes more developed.

Foreign powers of attorney relating to real estate – the issue of the probative value of a document and the effectiveness of a legal act from the perspective of the land and mortgage registry court

The role of foreign powers of attorney in contemporary legal and economic transactions is constantly growing. This is due to the widespread labour migration and, paradoxically, in the last year, also with difficulties in cross-border movement during the COVID-19 pandemic. In judiciary and notarial practice, the assessment of foreign documents, including powers of attorney, is a threestage process. Firstly, the court should pay attention to the probative value of a foreign document. In principle, it is equal to the probative value of a national document (Article 1138 of the Code of Civil Procedure). Only certain categories of documents require consular legalization. It is used when there is no bilateral agreement eliminating or reducing this requirement with the country where the document has been issued. In the case of many countries, legalization was replaced by the apostille clause provided for in the 1965 Hague Convention. Secondly, the court should analyse the formal effectiveness of the legal act, taking into account the principles derived from Article 25 of the 2011 Private International Law Act and, in some cases, bilateral agreements. Last but not least, thirdly, the court should examine the material effectiveness of the act. The governing law of the power of attorney may, pursuant to Article 23 of the Private International Law Act, be subject to the choice of law rule. This text is a guide for courts on how to deal with foreign powers of attorney in land and mortgage registry proceedings.

Os Impactos Processuais da Inobservância Procedimental no Âmbito da Cadeia de Custódia

ResumoA cadeia de custódia foi introduzida na legislação processual por meio da Lei 13.964/19, com escopo de garantir o registro e o rastreamento da prova pericial, desde seu nascimento até o seu perecimento, para garantir a integridade dos vestígios de determinado crime. Sob esta lente, o presente trabalho analisa as consequências jurídicas sobre a quebra da cadeia de custódia, no intuito de averiguar se tal quebra causaria a inadmissibilidade da prova ou diminuiria o seu valor probatório. Para tanto, empregou-se o método hipotético-dedutivo que consistiu na revisão bibliográfica de doutrina nacional e estrangeira. Chegou-se a conclusão de que a ruptura da cadeia de custódia culmina na produção de provas ilegítimas no processo penal, devendo ser desentranhadas dos autos e inutilizadas. Palavras-chave: Ilicitude da Prova. Inadmissibilidade das Provas Ilícitas. Lei Anticrime. Quebra da Cadeia de Custódia. AbstractThe chain of custody was introduced in the procedural legislation through the Law 13.964/19, with the aim to assure the registration and to track the expert evidence, from its birth to its perishing, to guarantee the integrity of the traces of a certain crime. Under this lens, the present study analyzes the legal consequences of the break on the chain of custody, in order to ascertain whether such breach would cause the evidence to be inadmissible or if it would decrease its probative value. For this, the hypothetical-deductive method was applied, which consisted in a bibliographic review of national and foreign doctrine. The conclusion reached was that the rupture on the chain of custody culminates in the production of illegitimate evidence in the criminal proceedings, which must be removed from the records and discarded. Keywords: Illicit Evidence. Suppression Doctrine. Anticrime Law. Break on the Chain of Custody.