The disconnect between sexual assault victims’ needs and criminal justice system logic is well known. Rape myths and deeply held stereotypes about how ‘ideal victims’ are expected to respond still shape and influence criminal justice system processes and legal decision-making, in spite of decades of law reform. Complainants in sexual assault trials are often subjected to hostile, victim-blaming cross-examinations and regularly have their privacy, dignity and equality rights violated. The provision of independent legal advice and representation for sexual assault victims is a recent law reform aiming to attenuate the sharp asymmetry in rights between accused and victim in the criminal justice system. In this article, I provide an overview and critical analysis of the importance of trauma-informed independent legal advice and representation for complainants in sexual assault trials, focusing on developments in Canada. Not only does independent legal advice and representation facilitate informed decision-making; it also provides a meaningful bulwark against the structural imbalances leading to the systemic harms sexual assault victims typically experience in the criminal justice system. Legal advice and representation at all stages of the criminal process, then, can provide a long overdue corrective to the systematic marginalization of victims’ rights in criminal trials.
There is increasing recognition of the case for independent legal representation (ILR) for rape and serious sexual offence (RASSO) complainants in respect of applications to admit sensitive records or sexual history and character evidence. Numerous adversarial jurisdictions have either already implemented schemes or are in the process of doing so. Nonetheless, ILR, even in these discrete areas, presents difficult issues because it inserts a third party into the traditional bipartite model of criminal justice. In this paper, we present the findings of a study of adversarial jurisdictions that have implemented ILR. We shed light on issues including the most appropriate model of delivery and the practical challenges ILR can involve. We thereafter examine what ILR can achieve through a dual input/output lens and argue that, despite challenges to be overcome, ILR brings important benefits beyond representing the complainant's views at a hearing.
This article examines the development, interpretation, and practical application of evidentiary standards in Bosnia and Herzegovina within comparative, doctrinal, and supranational contexts. It begins by situating the Bosnian model within the broader distinction between common law and continental traditions: the Anglo-American formula of proof beyond a reasonable doubt, designed for communication with lay juries, and the continental notion of certainty (certitudo), rooted in rationalist legal culture and professional adjudication. While these two standards are functionally equivalent in requiring exclusion of rational doubt, their conceptual emphases and historical trajectories differ. The article then analyzes the traditional tripartite structure of Bosnian criminal procedure - certainty, probability, and doubt - and demonstrates that the standard of certainty has long performed the same role as beyond reasonable doubt. The growing use of the latter phrase in Bosnian jurisprudence is therefore interpreted not as a doctrinal transformation but as a shift in nomenclature, reflecting comparative influences and harmonization with international human rights law. Special attention is given to the case law of the European Court of Human Rights, whose jurisprudence binds domestic courts under Article II/2. of the Constitution of Bosnia and Herzegovina. By employing its own "beyond reasonable doubt" standard and emphasizing reasoned judgments, the Court shapes the domestic articulation and justification of evidentiary thresholds. The article concludes that Bosnia and Herzegovina illustrates both continuity and adaptation: while retaining its continental doctrinal foundations, it increasingly rearticulates evidentiary standards in a vocabulary aligned with European and comparative practice.
Previous research on public inquiries has evaluated deficiencies in truth-seeking or traumatic experiences of victim-survivors of inquiry processes. This article addresses a specific gap in the literature, offering a critical perspective on the Irish approach to procedural fairness in public inquiries. Irish public inquiries have been significantly influenced by judicial development of the right of impugned parties to fair procedures. In contrast, despite some innovations to support witnesses in criminal trial, this article argues that Irish courts and inquiries to date have adopted an imbalanced approach between the interests of victim-survivors of harm providing testimony as witnesses to inquiries and impugned parties in inquiry processes and reports. In particular, the approach to testimony in inquiries does not reflect advances in how courts gather best evidence, including that of ‘vulnerable’ persons, either in Ireland or comparatively. This approach results in public inquiries being unnecessarily re-traumatising and distressing for victim-survivors.
Addressing jurors’ false beliefs in rape and serious sexual offence (RASSO) cases has been a priority for law reformers worldwide. This includes the Law Commission, whose 2025 report Evidence in Sexual Offence Prosecutions recommended that juror misconceptions be addressed in England and Wales by enhanced judicial directions, supplemented by expert evidence where issues are particularly complex. This paper reviews existing evidence on the effectiveness of jury directions and expert evidence in this context, including quantitative and qualitative studies, and presents new findings from the Scottish Jury Research. It concludes that ‘the jury is out’ in terms of the ability of judicial directions or expert evidence to address false beliefs. This is partly because the evidence base is limited, with a paucity of realistic studies. But there are also reasons for scepticism about the effectiveness of ‘myth-busting’ judicial directions, because they are attempting something different to directions instructing jurors about the law. The latter are attempting to convey information, but the former are trying to impact attitudes, which may be deep-seated and resistant to change. The difficulty is that there are few feasible alternatives. As such, further research into how to maximise their impact, or whether expert evidence might be more effective, is vital.
Digital evidence increasingly shapes charging decisions and judicial outcomes, yet its technical complexity raises concerns for equality of arms. This paper presents a comparative case study replicating a previous analysis of prosecutors with practising defence lawyers. Using identical materials and scenarios, it examines how role, access to information, and institutional assumptions shape evidentiary assessment. We compare prosecutors’ and defence lawyers’ judgements on the relevance, evidential weight, and verification needs of four types of digital evidence. Prosecutors in the original study accepted police-reported evidence at face value, integrating it into a coherent narrative of guilt. Defence lawyers likewise acknowledged its potential significance but adopted a verification-led stance, granting high weight only with access to raw data, provenance checks, synchronisation, and independent expertise. The findings raise concerns under Article 6 of the ECHR, highlighting systemic imbalances. We recommend reforms, including clearer reporting, early disclosure, institutionalised quality assurance of digital evidence, enhanced training, and expert support.
Lawyer investigation orders play a crucial role in facilitating evidence collection and improving judicial efficiency in civil trials in China. Despite their widespread application in practice, the mechanism governing their implementation remains ambiguous. This article begins by examining regulatory documents from 19 provinces and municipalities that have issued specific provisions on lawyer investigation orders, and traces the evolution of their use. Through interviews with judges and lawyers, the study finds that the lawyer investigation order reflects an incomplete shift toward an adversarial model, and uncovers judges’ persistent tendency to prioritize the pursuit of factual truth over procedural clarity. Since lawyer investigation orders balance public authority and private rights, their issuance should adhere to the principle of proportionality, including a clearer definition of what constitutes “objective reasons” for not obtaining evidence. To operationalize this standard, this article proposes a preliminary review mechanism, supplemented by a negative list that would offer judges clearer and more structured guidance.
In England and Wales the Civil Evidence Act 1972, s 3(1) provides that 'where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence'. To be qualified to give expert evidence a witness must demonstrate knowledge or experience of some recognised field of expertise. The influential judgment in Barings plc v Cooper & Lybrand (2001) Lloyd's Rep. Bank. 85 states that this must be 'a recognised expertise governed by recognised standards and rules of conduct'. On epistemological as well as doctrinal grounds, we endorse this requirement for recognised standards and/or rules as appropriate to most types of expert. It is less appropriate to witnesses whose expertise is based on experience of a particular trade or occupation. So-called 'trade evidence' has caused particular difficulties in intellectual property cases. We argue that such evidence should be treated as expert opinion evidence, not evidence of fact or lay opinion, and should show some identifiable rigour in arriving at its conclusions, as well as conforming to the standards applicable to all expert witnesses.
This research aims to examine how legal systems and courts have approached the principle of functional equivalence between written documents and digital evidence, more than three decades after its initial codification in the UNCITRAL Model Law of 1996. The study focuses on the Saudi legal system as a case study, in light of the provisions introduced by the 2021 Law of Evidence.The study adopted a dual-method approach combining a theoretical analysis of the relevant legal provisions with a quantitative and qualitative examination of a sample of judicial decisions issued by Saudi commercial courts. The data was collected and classified based on predefined indicators aimed at capturing how the judiciary has interpreted and applied the statutory framework governing functional equivalence.The findings reveal that the Saudi legal framework has successfully integrated the principle of functional equivalence into the new Law of Evidence in a manner that aligns with traditional rules governing written evidence. Judicial analysis shows a positive response to this principle. However, the inconsistent classification of evidence and limited engagement with the statutory conditions suggest that many rulings relied more on judicial discretion than on a rigorous application of the law.
This paper examines the principles governing evidence in Bosnia and Herzegovina's criminal procedure, highlighting its unique blend of civil and common law influences. It explores the acquisition, presentation, and evaluation of evidence, emphasizing transparency, fairness, and human rights protection. By analyzing domestic laws and international standards, the study addresses challenges in balancing criminal justice and individual liberties. Beyond its relevance to Bosnia and Herzegovina, this analysis contributes to broader legal scholarship, offering insights into the evolution of modern criminal procedure.
Witness intermediaries facilitate communication between legal actors and children or other vulnerable populations, and sometimes intermediaries assist in investigative interviews. This research explored the skills of investigative interviewers and intermediaries (who either had experience acting in that role or were eligible to do so) in identifying problematic questions during interviews. Forty-one participants (18 interviewers, 23 eligible or experienced intermediaries) listened to excerpts from interviews with three alleged victims of sexual or physical abuse which contained a mix of appropriate and inappropriate questions. Participants paused the audio whenever they wished to make a comment and also completed a knowledge test on questioning best practices. Interviewers identified more problematic questions and scored higher on the knowledge test than intermediaries. Whereas interviewers were primarily concerned with the extent to which the interview involved open-ended questioning, intermediaries focused on the extent to which questioning involved supports and clear scaffolding. The findings suggest that well-trained interviewers are equipped to handle most questioning issues with children independently; however, intermediaries’ attentiveness to question scaffolding suggests they might aid communication with interviewees facing more pronounced communication challenges (e.g., developmental delay).
Legal psychologists sometimes provide expert witness testimony about eyewitness memory in court. In their testimony, they regularly rely on scientific findings that decision-makers (i.e., jurors, judges) likely assume are practically relevant. However, it is not yet known which effect sizes are large enough to be deemed practically relevant for the courtroom, also known as the smallest effect size of interest (SESOI). One way to estimate the SESOI is to engage stakeholders. In two studies, we recruited 97 legal professionals (e.g., defense lawyers, prosecution lawyers, judges) from the Netherlands and Belgium and presented them with hypothetical scenarios about an unarmed robbery wherein an eyewitness made different types of memory errors (e.g., misremembering a black gun). Then, legal professionals were asked how many of such memory errors they would allow before taking certain legal actions. The majority of legal professionals viewed 1–3 memory errors as practically relevant for legal decisions or actions, but this depended on the type of memory error. A nontrivial number of participants indicated that they would never undertake legal actions after a witness made memory errors. The current studies can guide the challenging task of estimating the SESOI in forensic psychological contexts that may assist future researchers.
Spousal testimonial privilege has been recognised by many countries’ evidentiary laws. In the United States criminal justice system, it is one of the privileges with a long-standing establishment and development. In the Vietnamese criminal justice legal framework, this privilege has undergone significant changes over the years. The impact of this privilege on the prosecution of domestic violence cases and the courts’ efforts to balance it with justice remain unsettled research questions. Employing comparative, case study, survey and literature-based research methodologies, this paper analyses the origins, rationales and substantive content of spousal testimonial privilege under United States law, with particular focus on its recognised exceptions. Specific reference is made to Rule 504(d) of the Uniform Rules of Evidence and Rule 504(c) of the Military Rules of Evidence, both of which articulate significant limitations and exceptions to the privilege. On this foundation, the authors undertake a comparative analysis and propose recommendations for the refinement of corresponding provisions in Vietnamese law, aiming to improve the effectiveness of the identification and prosecution of domestic violence offences. The authors contend that Vietnam should draw upon the United States’ legal experience by incorporating analogous exceptions to spousal testimonial privilege into its criminal and criminal procedure laws.
Explanationist theories of evidence are an under-utilised resource in rape research. In this article, we apply these theories to understand the reasoning in rape cases. We show that complainant and defendant credibility is not a zero-sum game, even though comparative, holistic reasoning—together with the typical characteristics of evidence in rape cases—makes the fact-finder prone to accepting (or rejecting) either the complainant’s or the defendant’s version of events in its entirety. Drawing on an empirical analysis of 227 judgments and prosecutorial decisions, we examine what coherence and incoherence consist of, how coherence assessments are associated with case outcomes and how potential contradictions or supporting evidence are restructured as insignificant. We also contemplate reasons for the varied assessments of similar evidence in different cases. This study is the first to examine the full range of reasoning in rape cases through explanationist theories, offering a new and broader perspective on this topical area of law.
Malawi has a permissive legal framework which permits admissibility of forced confessions, a subject that is under-researched in African literature. Civil society organisations have regularly reported to various United Nations committees that the use of excessive force and torture to obtain evidence in the Malawi criminal justice system is endemic and relied upon by prosecutors and judges in criminal cases despite inherent unreliability. The prison system continues to suffer from lengthy remand detention, severe congestion and poor conditions. We present a socio-legal assessment of the legal, human rights and procedural concerns regarding the admissibility of forced confessions in Malawi. Prohibition of torture and cruel, inhuman or degrading treatment or punishment is provided in the 1994 Constitution of Malawi. Section 176 of the 1967 Criminal Procedure and Evidence Code (CP&EC), however, allows forced confessions as admissible evidence, contradicting constitutional and human rights protections. Our assessment illustrates how colonial-era legal frameworks continue to undermine fundamental human rights and administration of justice in Malawi. Constitutional advocacy, legislative reform of the CP&EC, oversight mechanisms and resourcing of law enforcement training on the Méndez Principles on effective interviewing and interrogation is warranted.
The presumption of innocence is considered a core value of criminal adjudication across jurisdictions today. However, to be an effective protection, it must apply not merely as an abstract declaration, but as a robust procedural right. An analysis of the presumption, therefore, must necessarily examine questions of burdens and standards of proof during trial. Woolmington v DPP is a celebrated reiteration of the abstract aspect of the right, but can be read to have introduced significant gaps into the procedural protection of the presumption. Its judicial application to multiple jurisdictions under the Indian Evidence Act, 1872 has in fact been largely detrimental to the presumption of innocence and constitutes a significant regression to the procedural protection of the right already existent under the statutory design of the Act. This, in turn, has facilitated further legislative encroachment on the presumption of innocence in jurisdictions under the Act such as India, effectively rendering it without any procedural meaning or practical substance. The unprecedented proliferation of special criminal statutes routinely employing persuasive reverse burdens has remained unchecked, and is a result of the courts having accepted the Woolmington doctrine, thereby effectively depriving themselves of any efficacious measures to preserve the presumption of innocence.
As part of its criminal justice reform, the UK Ministry of Justice issued a policy paper on the use of software-generated evidence in criminal proceedings. In response, this article consistently uses the term “chatbot-generated opinion,” while employing “chatbot testimony” metaphorically to compare chatbot responses in court to human testimony given in answer to a judge's questions. The article explores whether chatbot-generated opinion evidence can be trusted, focusing on the hearsay rule under the UK Criminal Justice Act 2003 and its implications for reforming China's evidence law. Contrary to prevailing views that exclude such evidence due to the lack of cross-examination, the article argues that chatbot opinions should not be directly accepted as testimony. It further explains that virtue jurisprudence offers an appropriate framework for identifying indicators of justified belief. Since a chatbot is incapable of having a moral motivation, this prevents judges from justifiably believing a chatbot's statement qua testimony. Introducing such an evidence analysis approach in China is significant. China's Confucian ethics and virtue jurisprudence highlight moral responsibility and motivation, providing a valuable foundation for the ongoing reform of China's evidence law and overcoming the limitations of its predominant objectivist approach to proof.
This article examines the role of evidentiary thresholds in shaping the reality of Indonesia’s criminal justice system. Drawing on personal experience as a defense lawyer and criminal procedure expert assisting investigations and trials, as well as relevant literature, this article argues that Indonesia’s low evidentiary threshold facilitates confirmation bias, investigative manipulation, and systemic abuse of power. To facilitate this discussion, the article first provides a theoretical framework for understanding the factors that influence nations to adopt high or low thresholds, along with the associated consequences. Subsequently, it examines the origins and evolution of evidentiary thresholds in Indonesia. Moreover, it discusses how low evidentiary thresholds in both the pre-trial and trial stages foster a bias-prone environment that undermines the pursuit of truth and increases susceptibility to manipulation. Lastly, the article proposes solutions to these systemic problems and highlights obstacles to their implementation.
Judicial proof can be reinterpreted as a dynamic process of dialectical argumentation, based on modern argumentation theory and situated within the adversarial legal framework. It reflects the dialogical nature of reasoning, where plaintiffs and defendants present supporting arguments, challenge opposing claims through counterarguments and engage in interactive exchanges to persuade the adjudicator. The adjudicator carefully evaluates these arguments to ensure they meet established standards of proof and to determine whether the burdens of production and persuasion have been satisfied. This process develops through distinct phases: constructing arguments during evidence presentation, interacting with arguments during cross-examination and evaluating arguments during closing arguments. By drawing on minimal rationality theory, this study highlights that rational fact-finding emerges not from rigid probabilistic methods but from the structured interplay of arguments and counterarguments that characterises adversarial proceedings. This reconceptualisation clarifies the rational, explanatory and dialogical aspects of judicial proof, offering both a stronger theoretical understanding of its logical structure and practical insights into how adversarial processes ensure fairness and accuracy in fact-finding.
Research addressing beliefs about deception has been mostly conducted with North American and European participants. However, deception belief consequences are not continent-bound. In legal proceedings, when jurors are responsible for assessing witness credibility, beliefs about deception can distort the outcome of jury trials, which are integral to Australia's criminal justice system. Research on beliefs about deception in Australia are scarce. Therefore, this article aims to address this gap by replicating the second study of The Global Deception Research Team with Australian participants. Five hundred and twenty-eight Australian participants responded to the 10-question questionnaire from the second study, with 84.7% stating they could usually tell when someone is lying to them. However, 75.6% also acknowledged that it is more difficult to tell when someone from a different cultural background is lying. Most Australian participants relied on three nonverbal cues to detect lying: increased posture shifting, increased self-touching and scratching and decreased eye contact. We discuss the implications of the results for research on lie detection in Australia and for research on deception outside North America and Europe.
