Search results for: admissibility

Authors: Felix O. Omosele

Abstract:

Several studies have established that electronic voting machines are prone to multi-faceted challenges. One of which is their capacity to lose votes after the ballots might have been cast. Therefore, the international consensus appears to favour the use of electronic voting machines that are accompanied with verifiable audit paper audit trail (VVPAT). At present, there is no known study that has evaluated the impacts (or otherwise) of this verification and auditing on the authentication, admissibility and evidential weight of electronically-obtained electoral data. This legal inquiry is important as elections are sometimes won or lost in courts and on the basis of such data. This gap will be filled by the present research work. Using the United States of America as a case study, this paper employed a qualitative legal analysis of several of its appellate courts’ judicial opinions. This analysis equally unearths the necessary statutory rules and regulations that are important to the research problem. The objective of the research is to highlight the roles played by VVPAT on electoral evidence- as seen from the eyes of the court. The preliminary outcome of this qualitative analysis shows that the admissibility and weight attached to ‘Computer Evidence from e-voting machines (CEEM)’ are often treated with general standards applied to other computer-stored evidence. These standards sometimes fail to embrace the peculiar challenges faced by CEEM, particularly with respect to their tabulation and transmission. This paper, therefore, argues that CEEM should be accorded unique consideration by courts. It proposes the development of a legal standard which recognises verification and auditing as ‘weight enhancers’ for electronically-obtained electoral data.

Keywords: admissibility of computer evidence, electronic voting, qualitative legal analysis, voting machines in the USA

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Authors: Genevieve Zingg

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Modern technology and social media platforms have fundamentally altered the nature of war crimes investigations by providing new forms of data, evidence, and documentation, and pose a unique opportunity to expand the efficacy of international law. However, much of the open source information available is deemed inadmissible in subsequent legal proceedings and fails to function as evidence largely due to issues of reliability and verifiability. Focusing on current judicial investigations related to ongoing conflicts in Syria and Iraq, this paper will examine key challenges and opportunities for the effective use of open source information in securing justice. This paper will consider strategies and approaches that can be used to ensure that information collected by affected populations meets basic admissibility standards. This paper argues that the critical failure to equip civilian populations in conflict zones with knowledge and information regarding established admissibility standards and guidelines both jeopardizes the potential of open source information and compromises the ability of victims to participate effectively in justice and accountability processes. The ultimate purpose of this paper is, therefore, to examine how to maximize the value of open source information based on the rules of evidence in international, regional, and national courts, and how to maximize the participation of affected populations in holding their abusers to account.

Keywords: human rights, international criminal law, international justice, international law, Iraq, open source information, social media, Syria, transitional justice, war crimes

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Authors: Konstancja Syller

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International law and European regulations remain hardly silent about the admissibility of evidence obtained illegally in a criminal trial. However, Article 6 of the European Convention on Human Rights guarantees the right to a fair trial, it does not normalise a proceeding status of specified sources or means of proof outright. Therefore, it is the preserve of national legislation and national law enforcement authorities to decide on this matter. In most countries, especially in Germany and Poland, a rather complex normative approach to the issue of proof obtained in violation of the right to privacy is evident, which pursues in practise to many interpretive doubts. In Germany the jurisprudence has a significant impact within the range of the matter mentioned above. The Constitutional Court and the Supreme Court of Germany protect the right to privacy quite firmly - they ruled on inadmissibility of obtaining a proof in the form of a diary or a journal as a protection measure of constitutional guaranteed right. At the same time, however, the Supreme Court is not very convinced with reference to the issue of whether materials collected as a result of an inspection, call recordings or listening to the premises, which were carried out in breach of law, can be used in a criminal trial. Generally speaking, German courts indicate a crucial importance of the principle of Truth and the principle of proportionality, which both enable a judgement to be made as to the possibility of using an evidence obtained unlawfully. Comparing, in Poland there is almost no jurisprudence of the Constitutional Tribunal relating directly to the issue of illegal evidence. It is somehow surprising, considering the doctrinal analysis of the admissibility of using such proof in a criminal trial is performed in relation to standards resulted from the Constitution. Moreover, a crucial de lega lata legal provision, which enables allowing a proof obtained in infringement of the provisions in respect of criminal proceedings or through a forbidden act, is widely criticised within the legal profession ant therefore many courts give it their own interpretation at odds with legislator’s intentions. The comparison of two civil law legal systems’ standards regarding to the admissibility of an evidence obtained in contravention of the right to privacy in a criminal trial, taking also into account EU legislation and judicature, is the conclusive aim of this article.

Keywords: criminal trial, evidence, Germany, right to privacy, Poland

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Authors: Iryna Teslenko

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According to the provisions of the current criminal procedural legislation of Ukraine, the issue of admissibility of evidence is closely related to both the right to a fair trial and the presumption of innocence. The general rule is that evidence obtained improperly or illegally cannot be taken into account in a court case. Therefore, the evidence base of the prosecution, collected at the stage of the pre-trial investigation, compliance with the requirements of the law during the collection of evidence, is of crucial importance for the criminal process, the violation of which entails the recognition of the relevant evidence as inadmissible, which can nullify all the efforts of the pre-trial investigation body and the prosecution. Therefore, the issue of admissibility of evidence in criminal proceedings is fundamentally important and decisive for the entire process. Research on this issue began in December 2021. At that time, there was still no clear understanding of what needed to be conveyed to the scientific community. In February 2022, the lives of all citizens of Ukraine have totally changed. A war broke out in the country. At a time when the entire world community is on the path of humanizing society, respecting the rights and freedoms of man and citizen, a military conflict has arisen in the middle of Europe - one country attacked another, war crimes are being committed. The world still cannot believe it, but it is happening here and now, people are dying, infrastructure is being destroyed, war crimes are being committed, contrary to the signed and ratified international conventions, and contrary to all the acquisitions and development of world law. At this time, the life of the world has divided into before and after February 24, 2022, the world cannot be the same as it was before, and the approach to solving legal issues in the criminal process, in particular, issues of proving the commission of crimes and the involvement of certain persons in their commission. An international criminal has appeared in the humane European world, who disregards all norms of law and morality, and does not adhere to any principles. Until now, the practice of the European Court of Human Rights and domestic courts of Ukraine treated with certain formalism, such a property of evidence in criminal proceedings as the admissibility of evidence. Currently, we have information that the Office of the Prosecutor of the International Criminal Court in The Hague has started an investigation into war crimes in Ukraine and is documenting them. In our opinion, the world cannot allow formalism in bringing a war criminal to justice. There is a war going on in Ukraine, the cities are under round-the-clock missile fire from the aggressor country, which makes it impossible to carry out certain investigative actions. If due to formal deficiencies, the collected evidence is declared inadmissible, it may lead to the fact that the guilty people will not be punished. And this, in turn, sends a message to other terrorists in the world about the impunity of their actions, the system of deterring criminals from committing criminal offenses (crimes) will collapse due to the understanding of the inevitability of punishment, and this will affect the entire world security and European security in particular. Therefore, we believe that the world cannot allow chaos in the issue of general security, there should be a transformation of the approach in general to such a property of evidence in the criminal process as admissibility in order to ensure the inevitability of the punishment of criminals. We believe that the scientific and legal community should not allow criminals to avoid responsibility. The evil that is destroying Ukraine should be punished. We must all together prove that legal norms are not just words written on paper but rules of behavior of all members of society, their non-observance leads to mandatory responsibility. Everybody who commits crimes will be punished, which is inevitable, and this principle is the guarantor of world security in the future.

Keywords: admissibility of evidence, criminal process, war, Ukraine

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Authors: Judge Paul Smith

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Abstract—This paper addresses the use and admissibility of psychiatric/psychological evidence in Australia Courts. There have been different approaches in the Courts to the acceptance of such expert evidence. It details how such expert evidence is admissible at trial and sentence. The methodology used is an examination of the decided cases and relevant legislative provisions which relate to the admission of such evidence. The major findings are that the evidence can be admissible if it is relevant to issues in a trial or sentence. It concludes that psychiatric/psychological evidence can be very useful and indeed may be essential at sentence or trial.

Keywords: criminal, law, psychological, evidence

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Authors: Bingjie Wu, C. Q. Ru

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The present work studies several reasonably expected candidate integral forms for self-attractive potential energy of a free monolayer graphene sheet. The admissibility of a specific integral form for ripple formation is verified, while all others most of the candidate integral forms are rejected based on the non-existence of stable periodic ripples. Based on the selected integral form of self-attractive potential energy, some mechanical behavior, including ripple formation and buckling, of a free monolayer grapheme sheet are discussed in details

Keywords: graphene, monolayer, ripples, van der Waals energy

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Authors: Yi Anson Lam, Siu Ming Yiu, Kam Pui Chow

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Digital evidence has been tendering to courts at an exponential rate in recent years. As an industrial practice, most digital evidence is extracted and preserved using specialized and well-accepted forensics tools. On the other hand, the advancement in technologies enables the creation of quite a few emerging platforms such as Telegram, Signal etc. Existing (well-accepted) forensics tools were not designed to extract evidence from these emerging platforms. While new forensics tools require a significant amount of time and effort to be developed and verified, this paper tries to address how to fill this gap using quick-fix alternative methods for digital evidence collection (e.g., based on APIs provided by Apps) and discuss issues related to the admissibility of this evidence to courts with support from international courts’ stance and the circumstances of accepting digital evidence using these proposed alternatives.

Keywords: extraction, digital evidence, laws, investigation

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Authors: Annabelle Onyefulu-Kingston

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One of the major purposes of AI today is to evaluate and analyze millions of micro and macro data in order to determine what is relevant in a particular case and proffer it in an adequate manner. Microdata, as far as it relates to AI in international arbitration, is the millions of key issues specifically mentioned by either one or both parties or by their counsels, arbitrators, or arbitral tribunals in arbitral proceedings. This can be qualifications of expert witness and admissibility of evidence, amongst others. Macro data, on the other hand, refers to data derived from the resolution of the dispute and, consequently, the final and binding award. A notable example of this includes the rationale of the award and specific and general damages awarded, amongst others. This paper aims to critically evaluate and analyze the possibility of technological inclusion in international arbitration. This research will be imploring the qualitative method by evaluating existing literature on the consequence of applying AI to both micro and macro data in international arbitration, and how this can be of assistance to parties, counsels, and arbitrators.

Keywords: AI-based technologies, algorithms, arbitrators, international arbitration

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Authors: Pantaleon Lutta, Mohamed Sedky, Mohamed Hassan

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The inability of organizations to put in place management control measures for Internet of Things (IoT) complexities persists to be a risk concern. Policy makers have been left to scamper in finding measures to combat these security and privacy concerns. IoT forensics is a cumbersome process as there is no standardization of the IoT products, no or limited historical data are stored on the devices. This paper highlights why IoT forensics is a unique adventure and brought out the legal challenges encountered in the investigation process. A quadrant model is presented to study the conflicting aspects in IoT forensics. The model analyses the effectiveness of forensic investigation process versus the admissibility of the evidence integrity; taking into account the user privacy and the providers’ compliance with the laws and regulations. Our analysis concludes that a semi-automated forensic process using machine learning, could eliminate the human factor from the profiling and surveillance processes, and hence resolves the issues of data protection (privacy and confidentiality).

Keywords: cloud forensics, data protection Laws, GDPR, IoT forensics, machine Learning

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Authors: Maria Elisabete Costa Ferreira

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Domestic violence is a serious social issue in which victims are mostly women. Domestic violence develops in cycles, starting with the building of tension, passing through the incident of abuse and ending with reconciliation, also known as honeymoon. As time goes by, the shorter these phases become, and the greater and more severe the attacks, rarely leading to the death of the victim of abuse. Sometimes, the victim stops the abuse by killing the aggressor, usually after the immediate aggression has taken place. This poses an important obstacle to the claim of self-defense by the victim of domestic violence pending trial for the homicide of her long-time abuser. The main problem with self-defense claims in such cases is that the law requires the act of aggression to be present or imminent (imminent threat or immediate danger) so that it permits the victim to take her defense into her own hands. If the episode of aggression has already taken place, this general requirement for the admissibility of self-defense is not satisfied. This paper sheds new light on the concept of the actuality of the aggression, understanding that, since domestic violence is a permanent offense, for as long as the victim stays under the domain of the aggressor, imminent threat will be present, allowing the self-defense claim of a woman who kills her abuser in such circumstances to be admissible. An actualist interpretation of the requirement of the necessity of the means used in self-defense will be satisfied when evaluated from the subjective perspective of the intimate partner victim. Necessity will be satisfied if it is reasonable for the victim to perceive the use of lethal force as the only means to release herself from the abuser.

Keywords: domestic violence, homicide, self-defense, imminent threat, necessity of lethal force

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Authors: Sandhra M. Pillai

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This article examines the relevance, difficulties, and potential applications of DNA analysis in the criminal justice system. A potent tool for connecting suspects to crime sites, clearing the innocent of wrongdoing, and resolving cold cases, DNA analysis has transformed forensic investigations. The scientific foundations of DNA analysis, including DNA extraction, sequencing, and statistical analysis, are covered in the article. To guarantee accurate and trustworthy findings, it also discusses the significance of quality assurance procedures, chain of custody, and DNA sample storage. DNA analysis has significantly advanced science, but it also brings up substantial moral and legal issues. To safeguard individual rights and uphold public confidence, privacy concerns, possible discrimination, and abuse of DNA information must be properly addressed. The paper also emphasises the effects of the criminal justice system on people and communities while highlighting the necessity of equity, openness, and fair access to DNA testing. The essay describes the obstacles and future directions for DNA analysis. It looks at cutting-edge technology like next-generation sequencing, which promises to make DNA analysis quicker and more affordable. To secure the appropriate and informed use of DNA evidence, it also emphasises the significance of multidisciplinary collaboration among scientists, law enforcement organisations, legal experts, and policymakers. In conclusion, DNA analysis has enormous potential for improving the course of criminal justice. We can exploit the potential of DNA technology while respecting the ideals of justice, fairness, and individual rights by navigating the ethical, legal, and societal issues and encouraging discussion and collaboration.

Keywords: DNA analysis, DNA evidence, reliability, validity, legal frame, admissibility, ethical considerations, impact, future direction, challenges

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Authors: Igbekoyi Olusola Esther, Olurankinse Felix

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This paper examined the factors that militate against Will writing among entrepreneurs in Ondo State Nigeria and the effect of intestate death on business continuity after the exit of the entrepreneurs. The paper was written with a view to providing information on the reasons why intestate death is common among entrepreneurs in Ondo State and the effects on continuity of business after death of the initial owners. Data were obtained from primary source through the administration of questionnaires to entrepreneurs drawn from 50 registered manufacturing companies. These companies have been in existence for a minimum of 10 years with minimum staff strength of 20 workers each. These companies were selected using the purposive random sampling technique in order to capture firms that meet the requirements of this paper. Data obtained were analyzed using descriptive statistics, chi-square and regression analysis. The findings of the paper revealed that administration of Will, traditional beliefs, Will execution procedures, age and non- admissibility of Wills in court are the major factors that militates against Will writing among entrepreneurs in Ondo State. It was also discovered that chaos and instability in business, reduction in sales and productivity, poor succession planning, polygamous nature of marriages, difficulty in sourcing for funds and gender preference are joint predictors of business continuity in event intestate death which is evident in the result where R2 =.954;(F 6, 26)= 89.644; (P < 0.01). The individual beta co-efficient, t- statistics and significance of each variable revealed that gender preference (.735; 7.031; .000) and poor succession plan (.402; 2.840; .009) have significant positive effect on business continuity; while reduction in sales and productivity (-.059; -.335; .740) and difficulty in sourcing for funds (-.217; -1.367; .188) have negative effect; other variables also have positive relationship but they are not significant. It is therefore concluded that business continuity after the exit of the entrepreneur is highly dependent on the rebuilding of confidence on Wills administration in ondo state Nigeria, proper succession planning and elimination of gender preferences.

Keywords: intestacy, business continuity, entrepreneurs, will, succession planning

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Authors: Qiang Ren

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In the past 20 years, under the high standard of international investment protection, there have been numerous cases of investors ignoring the host country's measures to protect human health. Examples include investment disputes triggered by the Argentine government's measures related to human health, quality, and price of drinking water under the North American Free Trade Agreement. Examples also include Philip Morris v. Australia, in which case the Australian government announced the passing of the Plain Packing of Cigarettes Act to address the threat of smoking to public health in 2010. In order to take advantage of the investment treaty protection between Hong Kong and Australia, Philip Morris Asia acquired Philip Morris Australia in February 2011 and initiated investment arbitration under the treaty before the passage of the Act in July 2011. Philip Morris claimed the Act constitutes indirect expropriation and violation of fair and equitable treatment and claimed 4.16 billion US dollars compensation. Fortunately, the case ended at the admissibility decision stage and did not enter the substantive stage. Generally, even if the host country raises a human health defense, most arbitral tribunals will rule that the host country revoke the corresponding policy and make huge compensation in accordance with the clauses in the bilateral investment treaty to protect the rights of investors. The significant imbalance in the rights and obligations of host states and investors in international investment treaties undermines the ability of host states to act in pursuit of human health and social interests beyond economic interests. This squeeze on the nation's public policy space and disregard for the human health costs of investors' activities raises the need to include human health in investment rulemaking. The current international investment law system that emphasizes investor protection fails to fully reflect the requirements of the host country for the healthy development of human beings and even often brings negative impacts to human health. At a critical moment in the reform of the international investment law system, in order to achieve mutual enhancement of investment returns and human health development, human health should play a greater role in influencing and shaping international investment rules. International investment agreements should not be limited to investment protection tools but should also be part of national development strategies to serve sustainable development and human health. In order to meet the requirements of the new sustainable development goals of the United Nations, human health should be emphasized in the formulation of international investment rules, and efforts should be made to shape a new generation of international investment rules that meet the requirements of human health and sustainable development.

Keywords: human health, international investment law, Philip Morris v. Australia, investor protection

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Authors: Qi Wang

Abstract:

With the expansion of trial-centered principles, the importance of witness examination in Korean criminal proceedings has been increasingly emphasized. However, several practical challenges have emerged in courtroom examinations, including concerns about witnesses’ memory deterioration due to prolonged trial periods, the possibility of inaccurate testimony due to courtroom anxiety and tension, risks of testimony retraction, and witnesses’ refusal to appear. These issues have led to a decline in the effective utilization of witness testimony. This study analyzes the deposition system, which is widely used in the U.S. evidence discovery process, and examines its potential implementation within the Korean criminal procedure framework. Furthermore, it explores the scope of application, procedural design, and measures to prevent potential abuse if the system were to be adopted. Under the adversarial litigation structure that has evolved through several amendments to the Criminal Procedure Act, the deposition system, although conducted pre-trial, serves as a preliminary procedure to facilitate efficient and effective witness examination during trial. This system not only aligns with the goal of discovering substantive truth but also upholds the practical ideals of trial-centered principles while promoting judicial economy. Furthermore, with the legal foundation established by Article 266 of the Criminal Procedure Act and related provisions, this study concludes that the implementation of the deposition system is both feasible and appropriate for the Korean criminal justice system. The specific functions of depositions include providing case-related information to refresh witnesses’ memory as a preliminary to courtroom examination, pre-reviewing existing statement documents to enhance trial efficiency, and conducting preliminary examinations on key issues and anticipated questions. The subsequent courtroom witness examination focuses on verifying testimony through public and cross-examination, identifying and analyzing contradictions in testimony, and conducting double verification of testimony credibility under judicial supervision. Regarding operational aspects, both prosecution and defense may request depositions, subject to court approval. The deposition process involves video or audio recording, complete documentation by court reporters, and the preparation of transcripts, with copies provided to all parties and the original included in court records. The admissibility of deposition transcripts is recognized under Article 311 of the Criminal Procedure Act. Given prosecutors’ advantageous position in evidence collection, which may lead to indifference or avoidance of depositions, the study emphasizes the need to reinforce prosecutors’ public interest status and objective duties. Additionally, it recommends strengthening pre-employment ethics education and post-violation disciplinary measures for prosecutors.

Keywords: witness examination, deposition system, Korean criminal procedure, evidence discovery, trial-centered principle

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