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1
Singh, Nerisha. "Electronic evidence in criminal proceedings." Doctoral thesis, Faculty of Law, 2020. http://hdl.handle.net/11427/32978.
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The research question central to the thesis is stated as follows: what are the implications of new technological phenomena in South African law to the existing legal frameworks in relation to (i) investigatory powers of law enforcement and security and intelligence agencies to obtain electronic evidence, and (ii) its subsequent admissibility in criminal proceedings? Written with an emphasis on South African law, but also taking into account aspects of foreign and international law, the thesis seeks to investigate how our existing legal frameworks which regulate the use of and access to electronic evidence in criminal proceedings, including its admissibility, integrate and adapt to challenges raised by new and rapidly changing technological developments. The thesis provides a critical analysis of the existing legal framework regulating certain key investigative powers of law enforcement and security and intelligence agencies in the current modern environment of the information age in which they operate. Key among them is the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002. New technology has not only increased opportunities for criminal activity, it has also created opportunities for law enforcement and security and intelligence agencies to have access to more sophisticated and new capabilities. The range of intrusive capabilities now available to law enforcement and security and intelligence agencies triggers a range of issues and challenges for individual rights, including how those capabilities are used in investigation activities, the scale of their use, the extent to which such capabilities intrude on privacy rights, legislative authority for their use and safeguards that constrain and regulate such new technological capabilities. The challenges of regulating investigative powers in an era of new and fastpaced technological developments is explored in relation to (i) interception of communications (ii) acquisition and retention of communications data, and (iii) access to encrypted information. The introduction of electronic evidence in criminal legal proceedings raises unique challenges in the South African law on evidence. The most interesting perhaps is the extent to which the nature of the evidence presented, in this instance electronic evidence, impacts on admissibility in criminal proceedings. Potential anomalies arise as the relevant legislation, the Electronic Communications and Transactions Act 25 of 2002, is based on an electronic commerce model law concerned with commercial activities. In this regard, two separate issues are the focus of research interest. The thesis offers a rethinking of (a) admissibility of electronic evidence and (b) its weight. The meaning and application of certain statutory provisions, insofar as it applies to electronic evidence as hearsay or real evidence, or both, are key and controversial issues. Another relates to the business records exceptions, which directly translated for electronic records appears to have created a problematic presumption. On matters of evidential weight, there is no ‘one-size-fits-all' approach that will work. While a robust consideration of authentication is required in the court's assessment of evidential weight of electronic evidence, it should not be subject to inflexible tests that make it difficult for authentic electronic evidence to be admitted into evidence. A central premise of the thesis is that evolving technological phenomena can and do present challenges to existing legal concepts on evidence and the investigatory powers of law enforcement and the security and intelligence agencies to obtain electronic evidence and for its admissibility in criminal proceedings. This is done in the context of understanding whether South African law has developed appropriately in response to advancements in technology. In the final analysis, the thesis considers appropriate and meaningful reform towards a modern and transparent legal framework in South African law.
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Clements, Natalie. "The profession of profiling : are we there yet? /." [St. Lucia, Qld.], 2002. http://www.library.uq.edu.au/pdfserve.php?image=thesisabs/absthe16768.pdf.
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Pollard, Dorette. "Fresh evidence in Canadian criminal law: 1910--2010." Thesis, University of Ottawa (Canada), 2010. http://hdl.handle.net/10393/28814.
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In the last four decades, there has been a dramatic increase in the number of fresh evidence cases before Canadian criminal law appellate courts. Yet when it was first introduced at the turn of the last century, this rule of evidence was meant to be an exception to the principle of the finality of judgments, to be used only on those rare occasions when a miscarriage of justice had occurred. It was intended to prevent the innocent from going to jailor worse, from perishing on the gallows. Historically, fresh evidence was used but rarely prior to 1970. However, starting in the mid 1970s these applications have grown significantly, exploding after the early 1980s.
Based on an analysis of an initial database of 2116 fresh evidence matters, the thesis examines the possible reasons for this phenomenon and concludes that there is a direct correlation between the rise in the number of fresh evidence cases after 1970 and the advances in science, including the use of new evidence, such as DNA and expert forensic evidence in criminal law cases. But if the advances in science have made a significant contribution to the growth of fresh evidence applications, it was the advent of the Canadian Charter of Rights and Freedoms that brought a sea change to Canadian criminal law fresh evidence jurisprudence. Through a theoretical framework constructed around the search for truth, rights and theories of fairness, the thesis traces the evolution of appellate adjudication in this area of law that from its origins was meant to be used but rarely in the interests of the administration of justice to prevent miscarriages of justice.
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Rumbold, John Mark Michael. "The parasomnia defence : expert evidence in criminal trials." Thesis, Keele University, 2015. http://eprints.keele.ac.uk/2501/.
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There are increasing numbers of defendants seeking to rely on the occurrence of sleepwalking or some other parasomnia in their defence to a criminal charge. Consequently this has become a matter for public concern, particularly in relation to sexual assaults committed after alcohol consumption. This study used ethnographic methods to understand how the expert witnesses assess the accused in these cases, and then present their evidence to the jury. It also looked at the two-way interactions between law and medical science, and the difficulties each field has with the other. Sleepwalking in particular is an under-researched condition, with the basic phenomenology not fully explored yet. The experts must often rely on professional experience and give opinions, rather than relying on solid scientific evidence. Juries rarely return the special verdict, and victims are left dissatisfied by the incredible nature of the defence. The law pertaining to automatism and insanity is complicated and out of step with medical science. The Law Commission has recently examined this tricky area of law and recommended reform. The study concludes that the standard of expert evidence is generally good, although further work is needed to examine the specifics of how opinion and test results are presented to the jury. A number of recommendations are made about the standard of admissibility, legal reform and future directions of research.
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Яницька, Ольга Леонідівна. "Value of the circumstantial evidence in criminal law." Thesis, Київський національний університет технологій та дизайну, 2020. https://er.knutd.edu.ua/handle/123456789/15376.
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Jordaan, Jason. "An examination of validation practices in relation to the forensic acquisition of digital evidence in South Africa." Thesis, Rhodes University, 2014. http://hdl.handle.net/10962/d1016361.
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The acquisition of digital evidence is the most crucial part of the entire digital forensics process. During this process, digital evidence is acquired in a forensically sound manner to ensure the legal admissibility and reliability of that evidence in court. In the acquisition process various hardware or software tools are used to acquire the digital evidence. All of the digital forensic standards relating to the acquisition of digital evidence require that the hardware and software tools used in the acquisition process are validated as functioning correctly and reliably, as this lends credibility to the evidence in court. In fact the Electronic Communications and Transactions Act 25 of 2002 in South Africa specifically requires courts to consider issues such as reliability and the manner in which the integrity of digital evidence is ensured when assessing the evidential weight of digital evidence. Previous research into quality assurance in the practice of digital forensics in South Africa identified that in general, tool validation was not performed, and as such a hypothesis was proposed that digital forensic practitioners in South Africa make use of hardware and/or software tools for the forensic acquisition of digital evidence, whose validity and/or reliability cannot be objectively proven. As such the reliability of any digital evidence preserved using those tools is potentially unreliable. This hypothesis was tested in the research through the use of a survey of digital forensic practitioners in South Africa. The research established that the majority of digital forensic practitioners do not use tools in the forensic acquisition of digital evidence that can be proven to be validated and/or reliable. While just under a fifth of digital forensic practitioners can provide some proof of validation and/or reliability, the proof of validation does not meet formal international standards. In essence this means that digital evidence, which is preserved through the use of specific hardware and/or software tools for subsequent presentation and reliance upon as evidence in a court of law, is preserved by tools where the objective and scientific validity thereof has not been determined. Since South African courts must consider reliability in terms of Section 15(3) of the Electronic Communications and Transactions Act 25 of 2002 in assessing the weight of digital evidence, this is undermined through the current state of practice in South Africa by digital forensic practitioners.
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Dumani, Msebenzi. "Aspects of expert evidence in the criminal justice system." Thesis, Nelson Mandela Metropolitan University, 2005. http://hdl.handle.net/10948/435.
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The rule excluding evidence of opinion is traditionally stated in broad and general terms, subject to a more or less closed list of exemptions. Stephen says that a witness’s opinion is “deemed to be irrelevant”. A witness may depose to the facts which he has observed, but he may not ordinarily state any inferences which he has drawn from those facts, or opinions founded upon facts of which he has no personal knowledge. The general rule is that the evidence of opinion or belief of a witness is irrelevant because it is the function of a court to draw inferences and form its opinion from the facts; the witnesses give evidence as to the facts and the court forms its opinion from those facts. The opinion of an expert is admissible if it is relevant. It will be relevant if the witness’s skill, training or experience enables him materially to assist the court on matters in which the court itself does not usually have the necessary knowledge to decide. Where the topic is such that an ordinary judicial officer could be expected to be able, unassisted, to draw an inference, expert evidence is superfluous. In principle, there is no rule that a witness cannot give his opinion on an issue that the court has to decide ultimately. It is not experts alone who may give their opinions on ultimate issues but, in practice, there is a strong tendency to regard the evidence of lay persons on ultimate issues as constituting prima facie evidence only. If such lay testimony remains unchallenged, it may be of greater significance. It is generally true that relevant evidence is admissible and irrelevant evidence is inadmissible. At this stage the following question may be posed: is the opinion of any witness – whether from an expert or lay person – admissible evidence? Should an opinion be admitted for purposes of persuading the court to rely on it in deciding the issue at hand? The basic answer is that relevance remains the fundamental test for admissibility. Certain issues simply cannot be decided without expert guidance. Expert opinion evidence is therefore readily received on issues relating to ballistics, engineering, chemistry, medicine, accounting and psychiatry, to mention only a few examples. The problem which arises is this: what is the best way of cross-examining the expert witness? Although the concept of skilful cross-examination conjures up the image of the crossexaminer destroying the expert witness in the witness box, total annihilation of expert evidence in court occurs only rarely. In reality, lawyers who are expected to cross-examine experts are often at a disadvantage in that they do not possess sufficient in-depth knowledge of the specific field of expertise to enable them to cross-examine the witness. Despite the expert nature of the evidence, it is suggested that the true basis of crossexamination should not be abandoned when dealing with experts. The effectiveness of crossexamination is enhanced by keeping the number of questions to a minimum as well as opening and concluding with good strong points. At the outset it should be mentioned that there is a distinction between matters of scientific fact and matters of mere opinion. On matters of scientific fact experts seldom differ but within the province of opinion one encounters difficulties. Lengthy cross-examination concerning expert’s theoretical knowledge is usually inefficient and should rarely be attempted. Cross-examination should be directed at pure logic or scientific analysis. The cross-examiner should always have relevant authority with him in court so as to confront the expert with these. The whole effect of the testimony of an expert witness can also be destroyed by putting the witness to test at the trial as to his qualifications, his experience and his ability and discriminations as an expert. A failure to meet this test renders his evidence nugatory.
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Kazimer, Julie A. "The rape investigator's handbook." [Denver, Colo.] : Regis University, 2006. http://165.236.235.140/lib/JKazimer2006.pdf.
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Mellifont, Kerri Anne. "The derivative imperative : how should Australian criminal trial courts treat evidence deriving from illegally or improperly obtained evidence?" Thesis, Queensland University of Technology, 2007. https://eprints.qut.edu.au/16388/1/Kerri_Mellifont_Thesis.pdf.
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How should Australian criminal trial courts treat evidence deriving from illegally or improperly obtained evidence? The fact that derivative evidence gives rise to factors distinct from primary evidence makes it deserving of an examination of its peculiarities. In doing so, the assumption may be put aside that derivative evidence falls wholly within the established general discourse of illegally or improperly obtained evidence. Just as the judicial response to primary evidence must be intellectually rigorous, disciplined and principled, so must be the response to derivative evidence. As such, a principled analysis of how Australian courts should approach derivative evidence can significantly contribute to the discourse on the law with respect to the exclusion of illegally or improperly obtained evidence. This thesis provides that principled analysis by arguing that the principles which underpin and inform the discretionary exclusionary frameworks within Australia require an approach which is consistent as between illegally obtained derivative evidence and illegally obtained primary evidence.
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Mellifont, Kerri Anne. "The derivative imperative : how should Australian criminal trial courts treat evidence deriving from illegally or improperly obtained evidence?" Queensland University of Technology, 2007. http://eprints.qut.edu.au/16388/.
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How should Australian criminal trial courts treat evidence deriving from illegally or improperly obtained evidence? The fact that derivative evidence gives rise to factors distinct from primary evidence makes it deserving of an examination of its peculiarities. In doing so, the assumption may be put aside that derivative evidence falls wholly within the established general discourse of illegally or improperly obtained evidence. Just as the judicial response to primary evidence must be intellectually rigorous, disciplined and principled, so must be the response to derivative evidence. As such, a principled analysis of how Australian courts should approach derivative evidence can significantly contribute to the discourse on the law with respect to the exclusion of illegally or improperly obtained evidence. This thesis provides that principled analysis by arguing that the principles which underpin and inform the discretionary exclusionary frameworks within Australia require an approach which is consistent as between illegally obtained derivative evidence and illegally obtained primary evidence.
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Karvounakis, Theodosios. "Fair criminal evidence in Europe : from the European Convention on Human Rights to EU criminal law." Thesis, Queen Mary, University of London, 2012. http://qmro.qmul.ac.uk/xmlui/handle/123456789/3370.
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The goal of the thesis is to explore how a concept of fair criminal evidence in Europe can be utilised by the EU in its further steps of integration in the area of European Criminal Law. The answer to this question presupposes that there is indeed such a concept and the exploration can be further split in two questions. Which are the characteristics of a concept on evidential fairness in Europe? Which are the applications of this concept in EU Criminal Law? As far as the characteristics of such a concept are concerned, it is argued that fairness in evidential matters in a European level comes into existence in the realm of the Council of Europe. Article 6 of the European Convention on Human Rights is presented as evidence-‐relevant, while the context of Strasbourg’s case law is proposed as the right platform for finding the material needed for the distillation of the principles of evidential fairness. In relation to the second question, the interest moves into the European Union and the evidential matters in the context of judicial cooperation in criminal matters. More specifically, it is discussed how the findings about a fair criminal evidence concept apply to the judicial cooperation in criminal evidence in EU level. By the term ‘applying’ it is meant the testing of two different conditions; firstly, if the principles adopted are already followed in practice, and to what extent, and secondly, how they can improve and adjust the existing system. In this process the key role of mutual recognition’s character is demonstrated and particular amendments to existing and future legislative instruments such as the European Evidence Warrant and the European Investigation Order are proposed.
12
Briody, Michael, and n/a. "The Effects of DNA Evidence on the Criminal Justice Process." Griffith University. School of Criminology and Criminal Justice, 2005. http://www4.gu.edu.au:8080/adt-root/public/adt-QGU20050818.155533.
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This research examines the effects of forensic deoxyribonucleic acid (DNA) evidence on decisions in the courts and on the conduct of criminal investigations. To assess effects on court decisions, quantitative analyses were conducted using primary data from the State of Queensland. A control-comparison method was used to assess the effects in court, and this was made within a context of other evidentiary and extra-legal factors that had a bearing on case outcomes. These other factors included defendant confessions, independent witness testimony and fingerprint and photographic evidence. A sample of 750 cases referred by police for prosecution and finalised past the appeal stage in court, was selected for examination. Half of these cases utilised DNA evidence, while the other half, as a control group, did not. Cases were selected in four categories: sexual offences, serious assaults, homicides and property crime. Data on the cases were analysed using advanced statistical methods and predictor models were developed to demonstrate how, given case configurations, the addition of DNA evidence could potentially alter court outcomes. Results for the three serious offence types were that DNA evidence emerged as a positive predictor that prosecutors would pursue cases in court, and it demonstrated a powerful influence on jury decisions to convict. Incriminating DNA evidence demonstrated no significant effect on inducing guilty pleas from defendants for serious crimes against the person. However, it did correlate significantly to cases reaching court and to guilty pleas being entered for property offence cases. The analysis of the effects on investigations relies on data from jurisdictions other than Queensland. Secondary data and the literature were used to assess the potential for strategically using forensic intelligence, along with dedicated investigative resources, to reduce property crimes like burglaries and car thefts. In the one study available that employed adequate research methods, three patrol areas in New South Wales, where a police operation was trialled, were compared to other areas that acted as a control. The police operation aimed at 100% attendance at property crime scenes, the use of intelligence from DNA and fingerprint identifications and specialised investigative resources to reduce crime levels. While the operation failed to achieve its goal, it did provide some valuable lessons. The effectiveness of the national criminal DNA database in the UK, reputed to lead the world, was then evaluated in relation to domestic burglaries. Its Australian CrimTrac counterpart did not commence operations until March 2003, and by 2004 was not operating at maximum capacity. Because no published studies were located that measured any effects of the UK database on crime levels, the criterion selected to measure performance was the proportion of convictions achieved through the database to reported crime. For domestic burglaries, this ratio was calculated from secondary official data to be close to one percent (0.01), a figure that included the additional convictions achieved through the intelligence that the database provided. The research also examined forensic DNA in relation to issues of privacy and civil liberties. Privacy issues are discussed beginning with an historical background to the use and misuse of genetic data. This includes the searches for a 'criminal gene' and for genetic links to criminal behaviour. DNA databases are contrasted with databanks, and it is questioned, since we leave our DNA wherever we go, whether it really is private. Civil liberties issues that are discussed include whether providing DNA is a form of self-incrimination; how DNA has helped exonerate the convicted innocent; wrongful convictions based on flawed DNA evidence; whether occasional 'mass screenings' with DNA are a reversal of the onus of proof; concerns with DNA databases and 'function creep', and the planting or 'forgery' of DNA evidence including the use of amplicon contamination. In the final chapter, a balance is sought between on one hand, the goal of police and government to provide a safe society, and on the other, the rights to privacy and civil liberties expected by individuals in Western liberal democracies. The chapter addresses the issues of concern raised in the earlier chapter about privacy and civil liberties, and makes recommendations on how these may be resolved. The general approach favoured is to increase police powers in specific situations, but to couple these with the protection of individual rights through greater regulation of those powers. The research also developed a case prioritising system aimed at helping clear laboratory backlogs.
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Briody, Michael. "The Effects of DNA Evidence on the Criminal Justice Process." Thesis, Griffith University, 2005. http://hdl.handle.net/10072/366784.
Full textAbstract:
This research examines the effects of forensic deoxyribonucleic acid (DNA) evidence on decisions in the courts and on the conduct of criminal investigations. To assess effects on court decisions, quantitative analyses were conducted using primary data from the State of Queensland. A control-comparison method was used to assess the effects in court, and this was made within a context of other evidentiary and extra-legal factors that had a bearing on case outcomes. These other factors included defendant confessions, independent witness testimony and fingerprint and photographic evidence. A sample of 750 cases referred by police for prosecution and finalised past the appeal stage in court, was selected for examination. Half of these cases utilised DNA evidence, while the other half, as a control group, did not. Cases were selected in four categories: sexual offences, serious assaults, homicides and property crime. Data on the cases were analysed using advanced statistical methods and predictor models were developed to demonstrate how, given case configurations, the addition of DNA evidence could potentially alter court outcomes. Results for the three serious offence types were that DNA evidence emerged as a positive predictor that prosecutors would pursue cases in court, and it demonstrated a powerful influence on jury decisions to convict. Incriminating DNA evidence demonstrated no significant effect on inducing guilty pleas from defendants for serious crimes against the person. However, it did correlate significantly to cases reaching court and to guilty pleas being entered for property offence cases. The analysis of the effects on investigations relies on data from jurisdictions other than Queensland. Secondary data and the literature were used to assess the potential for strategically using forensic intelligence, along with dedicated investigative resources, to reduce property crimes like burglaries and car thefts. In the one study available that employed adequate research methods, three patrol areas in New South Wales, where a police operation was trialled, were compared to other areas that acted as a control. The police operation aimed at 100% attendance at property crime scenes, the use of intelligence from DNA and fingerprint identifications and specialised investigative resources to reduce crime levels. While the operation failed to achieve its goal, it did provide some valuable lessons. The effectiveness of the national criminal DNA database in the UK, reputed to lead the world, was then evaluated in relation to domestic burglaries. Its Australian CrimTrac counterpart did not commence operations until March 2003, and by 2004 was not operating at maximum capacity. Because no published studies were located that measured any effects of the UK database on crime levels, the criterion selected to measure performance was the proportion of convictions achieved through the database to reported crime. For domestic burglaries, this ratio was calculated from secondary official data to be close to one percent (0.01), a figure that included the additional convictions achieved through the intelligence that the database provided. The research also examined forensic DNA in relation to issues of privacy and civil liberties. Privacy issues are discussed beginning with an historical background to the use and misuse of genetic data. This includes the searches for a 'criminal gene' and for genetic links to criminal behaviour. DNA databases are contrasted with databanks, and it is questioned, since we leave our DNA wherever we go, whether it really is private. Civil liberties issues that are discussed include whether providing DNA is a form of self-incrimination; how DNA has helped exonerate the convicted innocent; wrongful convictions based on flawed DNA evidence; whether occasional 'mass screenings' with DNA are a reversal of the onus of proof; concerns with DNA databases and 'function creep', and the planting or 'forgery' of DNA evidence including the use of amplicon contamination. In the final chapter, a balance is sought between on one hand, the goal of police and government to provide a safe society, and on the other, the rights to privacy and civil liberties expected by individuals in Western liberal democracies. The chapter addresses the issues of concern raised in the earlier chapter about privacy and civil liberties, and makes recommendations on how these may be resolved. The general approach favoured is to increase police powers in specific situations, but to couple these with the protection of individual rights through greater regulation of those powers. The research also developed a case prioritising system aimed at helping clear laboratory backlogs.Thesis (PhD Doctorate)
Doctor of Philosophy (PhD)
School of Criminology and Criminal Justice
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Wise, Jenny Alice Social Sciences & International Studies Faculty of Arts & Social Sciences UNSW. "The new scientific eyewitness: The role of DNA profiling in shaping criminal justice." Publisher:University of New South Wales. Social Sciences & International Studies, 2008. http://handle.unsw.edu.au/1959.4/41275.
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Since its first use in criminal investigations in 1987, DNA profiling has become the new gold standard for investigations and prosecutions. Academics, politicians and law enforcement officials have presented DNA evidence as a ??scientific hero?? that is capable of solving crimes and preventing miscarriages of justice. However, in spite of this reputation, few studies have explored the impact of this technology on criminal justice practitioners, or on the process of investigating and processing criminal offences. This dissertation provides a comparative study of the use of DNA profiling in two jurisdictions: New South Wales (NSW) in Australia and the Thames Valley in the United Kingdom (UK). Interviews canvassed the perspectives and experiences of police officers, scene of crime officers (SOCOs), forensic scientists, criminal lawyers, and judicial officers from these areas. These interviews were analysed in conjunction with appeal judgments and police statistics to reveal how DNA evidence has been used in the NSW and Thames Valley. The research presented in this dissertation indicates that DNA profiling is having a number of far-reaching effects on both criminal justice systems and is seen as a reliable forensic tool by criminal justice practitioners. Practitioners routinely use DNA evidence throughout the various stages of the criminal justice process and are actively changing their practices to utilise the technology more effectively. One of the main impacts of the introduction of DNA evidence into criminal investigations has been the need to provide substantial resources and infrastructure for the collection, analysis, and storage of samples. Both jurisdictions encountered a number of problems because they provided insufficient resources to effectively use DNA profiling. This study also offers insight into how criminal justice practitioners perceive the dangers of using DNA evidence and how miscarriages of justice can occur. Finally, through an analysis of the combined experiences of criminal justice practitioners, this dissertation challenges the widespread acceptance and routine use of forensic DNA profiling. It further suggests that it is now time to re-consider current practices in relation to how resources are devoted to the technology, and how criminal justice practitioners are using the technology.
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Meintjes-van, der Walt Lirieka. "Expert evidence in the criminal justice process : a comparative perspective /." Amsterdam : Rozenberg, 2001. http://www.loc.gov/catdir/enhancements/fy0630/2002329797-d.html.
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Harris, Rodger C. "Propensity evident [i.e. evidence] fusion alchemy : rules of evidence 414 and the legal metamorphosis of similar similar offenses evidence in child molestation cases in the military /." abstract and full text PDF (free order & download UNR users only), 2006. http://0-gateway.proquest.com.innopac.library.unr.edu/openurl?url_ver=Z39.88-2004&rft_val_fmt=info:ofi/fmt:kev:mtx:dissertation&res_dat=xri:pqdiss&rft_dat=xri:pqdiss:1436204.
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Thesis (M.J.S.)--University of Nevada, Reno, 2006."May 2006." Includes bibliographical references (leaves 170-174). Online version available on the World Wide Web. Library also has microfilm. Ann Arbor, Mich. : ProQuest Information and Learning Company, [2006]. 1 microfilm reel ; 35 mm.
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Brooke, David Anthony. "Confessions, illegally/improperly obtained evidence and entrapment under the Police and Criminal Evidence Act 1984 : changing judicial and public attitudes to the police and criminal investigations." Thesis, University College London (University of London), 1999. http://discovery.ucl.ac.uk/1349807/.
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This thesis considers the law on confessions, illegally/improperly obtained evidence and entrapment under the Police and Criminal Evidence Act 1984. There is a detailed discussion of the case-law and the principles which underlie that case-law as well as a detailed discussion of the principles and policies which underlie the relevant statutory and common law provisions. There is also some discussion of some of the psychological aspects of false confessions and interrogation. There is some historical discussion of how the law has approached confessions, illegally/improperly obtained evidence and entrapment before the enactment of the Police and Criminal Evidence Act 1984. A major theme of this thesis is to illustrate how changing judicial and public attitudes to the police and criminal investigations from the mid nineteenth century to the present day have influenced the content of the law on the three areas of criminal evidence under discussion, namely confessions, illegally/improperly obtained evidence and entrapment. In particular this thesis has attempted to illustrate how judicial responses to Sections 76 2(a) and 76 2(b) and S. 78 of the Police and Criminal Evidence Act have been influenced by changing public attitudes to the police, the integrity of their evidence to the criminal court and their role in the criminal justice system and society. In order to illustrate and highlight important points and arguments in the thesis, reference is occasionally made to the law and issues on identification evidence, accomplice evidence, forensic evidence as well as the law and issues on covert police operations to gather evidence not involving entrapment. However, no claim is made for comprehensive treatment of the law on identification evidence, accomplice evidence or forensic evidence, merely reference is made to those areas for the purposes of exposition on the main areas of study: Confessions, illegally/improperly obtained evidence and entrapment. The name of the publishers and place of publication for books and monographs quoted in the text is given in the bibliography.
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Moffa, Morgan S. "The evidence and expert judgments of their relative importance in confession adjudication /." View thesis online, 2008. http://docs.rwu.edu/psych_thesis/1/.
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Xu, Yuan Chang. "The validity of bite mark evidence for legal purposes." University of Western Cape, 2021. http://hdl.handle.net/11394/8193.
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Magister Scientiae Dentium - MSc(Dent)Bite mark evidence has been admitted into US courts since the 1870s. It quickly gained popularity after the conviction of W.E. Marx in 1974 for manslaughter using primarily bite mark evidence. However, since the development of DNA typing and testing in forensic science, the emergence of wrongful convictions has placed the validity of bite mark evidence admissibility into severe dispute. This mini-thesis is a condensation of the past ten years’ worth of literature on the latest researches regarding bite mark evidence. The theory of the uniqueness of the human dentition is analysed. The accurate reproducibility of bite mark on skin with regard to distortion is discussed. Some bite mark court cases, including wrongful convictions are explored. Inconsistent expert opinions and the lack of standards amongst practitioners are also examined. The aim of this study is to summarize the validity of bite mark evidence in the courts of law.
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Albertson, Stephanie Lynn Miller. "The influence of jurors' race on perceptions of complex scientific evidence." Access to citation, abstract and download form provided by ProQuest Information and Learning Company; downloadable PDF file, 189 p, 2009. http://proquest.umi.com/pqdweb?did=1885755771&sid=2&Fmt=2&clientId=8331&RQT=309&VName=PQD.
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Ask, Karl. "Criminal investigation : motivation, emotion and cognition in the processing of evidence /." Göteborg : Dept. of Psychology Göteborg Univ, 2006. http://www.gbv.de/dms/spk/sbb/recht/toc/513716297.pdf.
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Sluiter, Göran. "International criminal adjudication and the collection of evidence : obligations of states /." Antwerpen ; Oxford ; New York : Intersentia, 2002. http://catalogue.bnf.fr/ark:/12148/cb39069978f.
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Burić, Zoran [Verfasser], and Ulrich [Akademischer Betreuer] Sieber. "Models of cross-border evidence gathering in European Union criminal law." Freiburg : Universität, 2015. http://d-nb.info/1224808770/34.
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Durham, Helen. "Increasing the effectiveness of the International Criminal Court : the contribution of non-state actors /." Connect to thesis, 1999. http://eprints.unimelb.edu.au/archive/00001392.
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Swart, E. D. "A feminist critique and comparative analysis of the rule of evidence in rape trials in South Africa /." Thesis, McGill University, 1999. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=30331.
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The primary purpose of this paper is to indicate how Canadian legislative reforms could provide valuable insights regarding the reform of sexual assault law in South Africa. The first section of this paper contains an examination of three particular evidentiary rules in the South African context. In the second section a feminist critique of rape law is used to explore the significance of these rules in rape trials, using the framework of significant themes of the feminist enquiry. In the third section I look at the development of these evidentiary rules in Canada and evaluate the present legal position in this regard, with particular reference to decision of the Supreme Court of Canada in R v Seaboyer, R v Gayme (1991) 83 D.L.R. (4th) 193. In the final instance, an attempt is made to identify some significant lessons for those seeking to formulate the much needed reforms to these rules in South Africa.
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Süße, Sascha, and Carolin Püschel. "Collecting evidence in internal investigations in the light of parallel criminal proceedings." Universitätsbibliothek Leipzig, 2016. http://nbn-resolving.de/urn:nbn:de:bsz:15-qucosa-199168.
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Shaw, Danielle M. "Predicting Criminal Recidivism Using Survival Analysis: Evidence from a Mental Health Court." University of Akron / OhioLINK, 2019. http://rave.ohiolink.edu/etdc/view?acc_num=akron1563462148768683.
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Yildirim, Idris. "The Information-Seeking Behavior of Digital Evidence Examiners." Thesis, University of North Texas, 2011. https://digital.library.unt.edu/ark:/67531/metadc68068/.
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The current research sought to gain in-depth insights into the information-seeking behavior of Turkish National Police digital evidence examiners (DEEs); to explore the information sources that DEEs use and the factors affecting their decisions about source selection. Factors that affect information source selection and use by DEEs are: accreditation, workload, type of information, time, cost, availability, reliability/scientific importance, up-to-date data, prior experience with the source, relevance, interactivity and importance. The Internet was the information source most commonly used by participants during the examination stage; other sources included forums, experts, colleagues, forensic tools/kits and books. During the analysis stage, the most frequently mentioned information source was the investigation file, containing information about the elements of the crime; other sources included: personal experience, experts, detectives, the Internet, clients, professional training, the prosecutor, evidence submission forms, in-lab manuals, forums and colleagues. During the report-writing stage, most DEEs used in-lab manuals and report templates as information sources, but previously written reports, editing software, and colleagues were also used to obtain information about the format, style and language of reports as legal documents.
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Stüber, Michael. "Die Entwicklung des Prinzips der Unmittelbarkeit im deutschen Strafverfahren /." Frankfurt am Main [u.a.] : Lang, 2005. http://www.gbv.de/dms/sbb-berlin/472669885.pdf.
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Hengstenberg, Achim. "Die Frühwirkung der Verwertungsverbote : eine Untersuchung der Bedeutung der Beweisverwertungsverbote für die strafprozessualen Verdachtsbeurteilungen /." Hamburg : Kovač, 2007. http://www.verlagdrkovac.de/978-3-8300-2722-5.htm.
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Nash, Susan. "Tipping the scales : the reduction of procedural protection for the accused in inter-jurisdictional cases." Thesis, University of Aberdeen, 2000. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=230623.
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Within mature criminal justice systems there exists a range of procedural mechanisms designed to provide the accused with protection from unlawful and unfair treatment by prosecuting authorities. Whilst some systems insist on judicial involvement in the investigation of crime, others grant the court discretionary powers to reject evidence or stay proceedings. Complex evidentiary rules flourish in common law systems, whereas civil law systems abide by the principle of the free evaluation of evidence. Judicial responses to the reception of irregularly obtained evidence vary, even within systems sharing a common tradition. Given the strong utilitarian tradition of the English and Scottish courts, judges tend to reason pragmatically rather than articulate principles. Theory and principle relevant to the exclusionary discretion are considered in Chapter 2. The extent of the general powers given to the prosecuting authorities in England and Scotland to gather real evidence, and the range of safeguards designed to protect the rights of suspects are examined in detail in Chapter 3. The fourth Chapter considers the admissibility of irregularly obtained evidence in both jurisdictions and questions whether, and to what extent, the procedural rules permit the court to balance effectively countervailing public interest considerations. The rules operating in France and Germany are examined in outline and used as comparative examples. Police investigative powers do not generally extend beyond the jurisdiction of the national court, thus prosecuting authorities requiring access to evidence located abroad seek assistance through operational police co-operation and mutual legal assistance procedures. These mechanisms are examined in Chapter 5, and consideration given to the differing approaches taken by the English and Scottish courts to the admissibility of regularly and irregularly obtained foreign evidence. The assumption is challenged that evidence obtained abroad can be assessed in the same manner as evidence obtained in breach of national rules without disturbing the fairness of the proceedings. Incorporation of the European Convention on Human Rights has potential for changing the court's response to questions of admissibility and is considered in Chapter 6. This thesis concludes with a critical analysis of the problems identified, and questions whether criminal justice systems can achieve a fair balance without understanding the complex interplay between procedural rules. Only by understanding the function of the procedural rule within each system can the risk of reducing the procedural protection to the accused be avoided. I have endeavoured to state the law as it stood at the end of July 2000.
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James, Hazel. "Criminal responsibility, abnormal mental states, and the functions of expert medico-psychological evidence." Thesis, University of Nottingham, 2005. http://eprints.nottingham.ac.uk/13328/.
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This thesis exammes the interaction of law and medico-psychology in homicide cases, where the defences of insanity and diminished responsibility in particular are raised. If the defendant's mental state is subject to scrutiny through the defences, then expert medico-psychological evidence is required, yet law and medico-psychology have very different understandings on the mind and very different roles with regard to assessing individuals. Expert medico-psychological evidence can be submitted in the consideration of criminal responsibility, when sentencing is concerned with whether prison or hospital is most appropriate, and for release decisions involving judgments about the defendant's potential risk and dangerousness. The examination of the interaction between law and medico-psychology incorporated three dimensions. First, an exposition of the respective theoretical positions of the two disciplines on the mind, detailing the pertinent legislative and common law rules. The second analysed the judicial interpretations of the medico-psychological terms and concepts contained in the substantive law, and in addition, the controls developed through judicial reasoning on the procedural role of the expert and the admission of expert testimony. Finally, the practitioners' perspective is explicated, which was obtained by conducting interviews with lawyers and medico-psychological expert witnesses. There are two facets to the research conclusions, which simplistically stated are: first, in terms of the interaction between law and medico-psychology, the law uses medico-psychological concepts and evidence in a symbolic manner to facilitate legal objectives. Secondly, the examination of the nature of the interaction through the three dimensions exposed the fundamental difference between the theoretical legal debates and the practitioners' perspective. Although the former normally informs legislative and reform discussions, it seems from this research that consideration needs to be given to all the dimensions in future reform debates.
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Kangur, Andreas. "Can rules of criminal evidence be devised that would be uniform across jurisdictions?" Thesis, University of Glasgow, 2015. http://theses.gla.ac.uk/6388/.
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The thesis focuses on comparative criminal evidence law and sets out to explore whether it is possible to devise rules of criminal evidence that would suit different jurisdictions. This work should be treated as an exploratory project as it aims to find a suitable approach and then test it using three different rubrics of evidence law – evidence of prior convictions, hearsay evidence and standard of proof. Those rubrics in six different jurisdictions will be examined. The thesis first discusses the mainstream dichotomous approach to comparative criminal procedure and evidence, concluding that the inquisitorial-adversarial distinction has by today lost much of its descriptive power and was never meant to be a normative model. Instead, the author finds that all Western style jurisdictions today are concerned with accurate fact-finding and in order to facilitate accurate fact-finding, should take into consideration the cognitive needs and abilities of fact-finders. Since for the most part human cognition is universally the same, this psychology-based approach can serve as a foundation for evaluating the evidentiary regulation – and unless some extra-epistemic factors prevail, should guide legislatures towards optimizing and unifying their evidentiary regulation. Based on the recent studies in legal psychology, the author offers recommendations that would be workable in all sample jurisdictions. This is in part possible because empirical research tends to debunk often-held beliefs about professional judges being far superior fact-finders immune from the cognitive biases and emotional appeal usually attributed to jurors.
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Fonseca, Carlos Alberto Ribeiro da. "Furto de energia elétrica - subsunção da análise tecnológica ao ordenamento jurídico penal." Universidade de São Paulo, 2008. http://www.teses.usp.br/teses/disponiveis/3/3142/tde-04092008-160733/.
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Trata o presente estudo da submissão (adequação) do exame tecnológico em locais de crime de furto de energia elétrica ao ordenamento jurídico penal vigente, de tal forma a atender as necessidades próprias da lei penal e processual penal, específicas ao tema. Aspectos como a classificação entre furto de energia ou estelionato, ou mesmo a de furto de energia mediante fraude, ou ainda, simplesmente, a de ligação abusiva, assim como as comparações do preceito legal com a obtenção clandestina do acesso à TV a cabo e ao uso de impulsos de telefonia, devem ter a análise tecnológica adequada à sua destinação pelo Perito encarregado do exame, haja vista ser seu Laudo não só o documento hábil para tais discernimentos, que darão rumo ao processo penal e, por via de conseqüência, influenciarão em sua conclusão, mas também fonte de processo de conhecimento eventualmente levado a cabo pelo judiciário, este, destinatário final de tal trabalho.The present study deals with the submission (Adequacy) of the technological examination, in places of electric energy robbery crime, to the effective criminal legal system, such way to take care of the proper necessities of criminal and procedural law, specific to the subject. Aspects as the classification between robbery of energy or fraud, or simply of abusive linking, as the comparisons of the legal rule with the clandestine attainment of the access of cable TV and the use of telephony impulses, must have the technological analysis adjusted its destination for the in charge Connoisseur it examination, it has seen to be its Finding the skillful document for the discernment of important questions, which one will give route to the criminal proceeding and, by the way, they will influence in its conclusion.
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Mwale, Brenda. "The balancing of competing rights : the right to disclosure at the International Criminal Court." Thesis, University of the Western Cape, 2015. http://hdl.handle.net/11394/5189.
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Rao, Aparna. "The defendant's bad character in the wake of the Criminal Justice Act 2003." Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:818b81e9-91bc-41dd-9f40-1bb57b0d45b2.
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This thesis examines the interpretation and application of the Criminal Justice Act 2003 (UK), Part 11 Chapter 1, which came into force on 15 December 2004. Part 11 Chapter 1 concerns evidence of bad character, a concept approximately comparable with common law similar fact evidence, in relation to all parties who may be connected with a criminal trial. The admission and use of similar fact evidence has often been the subject of controversy, and the significant changes made by the CJA 2003 have attracted their own body of support and criticism. The nine chapters of this thesis attempt an in-depth study into the impact of the legislation on the robustness and effectiveness of the criminal trial, and consider whether the criminal trial is suited to the level of exposure of bad character now facilitated by the CJA. In particular, the thesis focuses upon the key provisions governing the uses of bad character evidence of the defendant: the seven gateways set out in s 101 of the CJA. The operation of those gateways and their accompanying explanatory provisions is examined through a combination of engagement with the Law Commission’s Report 273 (which preceded the enactment of the legislation), the range of Court of Appeal cases dealing with the legislation, and academic commentary. It was foreshadowed by commentators and early case law that the new provisions might not be easy to interpret or apply, and subsequent cases have borne out this prediction. An analysis of the bad character provisions suggests that, even though the CJA was intended to provide clarity in regulation, it has itself led to confusion in some important respects. Certain central terms lack definition, and some provisions have unintended consequences. The case law reflects this in its frequent, often brief, and sometimes inconsistent analysis of the specific parts of the legislation, which can make it difficult to determine the defendant’s guilt or innocence in a precise and scrupulous manner.
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Tse, Ka-sze Hayson, and 謝家樹. "Bayesian network analysis of evidence in criminal court cases / y Hayson Ka-sze Tse." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2015. http://hdl.handle.net/10722/212618.
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When justice goes wrong, grave consequences entail. They are damaging to the standing of the legal system and people’s lives. Humans are not good at assessing uncertainties. Parties to a legal proceeding adduce evidence to support or reject hypotheses. Errors happen when the tribunal fails to consider properly all the evidence in the context of inherent probabilities or improbabilities.
This research work does not advocate trials by mathematics or statistics. This work extends the understanding of the application of Bayesian Networks in the law domain. The original contribution to knowledge is the analysis of evidence by Bayesian Network in the context of specific legal requirements of Hong Kong.
The research questions are:
1. What are the legal requirements for the analysis of evidence in a criminal trial in Hong Kong?
2. How can a Bayesian Network be constructed for the purpose of such analysis?
3. Is such a Bayesian Network effective for the analysis?
In answering the questions, this research work examined the feasibility of generic models created for digital crime scene investigations and concluded that each case must be, for the purpose of analysis of evidence in the trial, represented by a different Bayesian Network.
This research work examined the trial processes, the tasks of tribunal of facts of criminal trials and some appellate decisions in Hong Kong. The work also created models of reasoning processes for the juries in Hong Kong. The work then compared the properties of Bayesian Networks with the processes of evaluation of evidence during trials.
This research work also considered the reluctance of courts in the United Kingdom to allow experts to express their opinions on the bases of Bayesian calculations; even though trials are practically evaluations of uncertainties and assignments of degrees of beliefs. This research work then constructed a schedule of levels of proof and proposed a schematic method, to be used with the schedule, to construct Bayesian Networks for any types of trial in Hong Kong. The method requires an analyst to go through a mass of evidence systematically, and analyse their relationships amongst the ultimate probandum, the penultimate probanda, the intermediate propositions, the facts in issue and the facts relevant to the issue. This work then demonstrated the applications by two criminal cases in Hong Kong.
The analyses show that the construction of Bayesian Network by the schematic method enables an analyst to take precaution to reach an assessment rationally and to approximate as far as capable his or her belief to the facts in
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Computer Science
Doctoral
Doctor of Philosophy
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Buisman, Caroline Madeline. "Ascertainment of the truth in international criminal justice." Thesis, Brunel University, 2012. http://bura.brunel.ac.uk/handle/2438/6555.
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This thesis seeks to answer the principal question as to whether international criminal justice systems can serve as adequate truth-ascertaining forums. In doing so, it reviews the practice of three international criminal justice systems: the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC). It is not the purpose of this research to review the black letter law adopted and applied by these international tribunals and court, but rather to review the implementation of the legal principles in practice. It is a socio-legal research project which focuses on the practice of the tribunals and court. It discusses socio-legal, institutional and political issues relating to the ascertainment of the truth in international criminal justice. In addition, it examines the gaps between the theory and practice of ascertaining the truth in the ICTY, ICTR and ICC. It does so principally by exploring the roles of the parties, participants and judges in ascertaining the truth. This includes the obstacles they face in doing so and the responses given, if any, to accommodate these difficulties. Challenges include the politicised climate of most post-conflict societies, the remoteness of the crime base areas from the seat of the Court, the lack of enforcement mechanisms and reliance on State cooperation, as well as the unfamiliarities with the cultural and linguistic features of the affected communities. This thesis reveals that these difficulties are not the principal cause of truth-searching impediments. Indeed, it is asserted that the ascertainment of the truth can be fair and effective notwithstanding these difficulties. It also demonstrates that truth-ascertaining impediments are mainly caused by failures to adequately investigate the crimes and relevant evidence. At the ICTY, investigations have been carried out in the most efficient and fair manner possible under the circumstances. By contrast, the ICTR and ICC investigations are far from adequate and should be improved. The Prosecution should make more efforts to obtain the best evidence available. It further concludes that international justice systems have set their goals too highly. Instead of seeking to meet objectives such as reconciliation, peace and security, they should restrict their focus to the question as to whether the guilt of a particular accused has been established in respect of the crimes charged.
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Hsieh, Kuo-Hsing. "Exclusionary rule of evidence in the United Kingdom, United States and China." Thesis, University of Edinburgh, 2011. http://hdl.handle.net/1842/6183.
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If there is any fixed star in our constitutional and criminal procedure constellation, it is that torture is illegal and torture-introduced evidence is inadmissible. The purposes of this research are to (1) assess the exclusionary rule in the United Kingdom and United States; (2) explore the theoretical constitutional foundation of the rule; and (3) establish the Chinese exclusionary rule. Currently, there is no exclusionary rule explicitly in the Chinese Code of Criminal Procedure. If the wrongful conviction of the innocent is a pressing issue in China today, police torture is the flashpoint. Police torture in China is the prevalent evil not the isolated anecdote. This thesis combines diagnosis and prescription – the problem of police torture in China and the solution of the exclusionary rule. The ultimate goal of the research is to find a suitable exclusionary rule for China to solve the serious problem of police torture and wrongdoing. At the level of theory, my exclusionary rule framework is grounded in the separation of powers. Previous research about the separation of powers doctrine has focused almost entirely on constitutional law and political theory. They completely ignored the special role that the doctrine plays in the criminal justice system, a role consisting of the exercise of a reviewing function to ensure executive compliance with the criminal law. Separation of powers is a core component of the constitution’s system of checks and balances, a system in which each branch of the government is endowed with a constitutional control over the others. Without any judicial supervision or due process, the potential for arbitrary enforcement is high. The alternatives to the exclusionary rule are mainly illusory and of no practical avail. Past history also demonstrates that the very idea of protecting the defendant’s right is completely empty unless it is linked to an efficient mechanism. China grants the police too much power and has too little judicial supervision over police investigations. It creates imbalance in the existing Chinese criminal justice system. It is such an imbalance and the lack of separation of powers in the criminal justice system that poses a significant and growing threat for the protection of defendants’ rights.
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Kampen, Petronella Theodora Cornelia van. "Expert evidence compared : rules and practices in the Dutch and American criminal justice system /." Antwerpen : Intersentia Rechtswetenschappen, 1998. http://www.gbv.de/dms/spk/sbb/recht/toc/253487064.pdf.
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Abu-Baker, Ben-Younis Huda M. "Expert evidence in criminal proceedings : a comparative study (English adversarial and Libyan inquisitorial systems)." Thesis, Manchester Metropolitan University, 2005. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.420864.
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Chang, Chih-ping <1978>. "Knowledge Production from Social Networks Sites. Using Social Media Evidence in the Criminal Procedure." Doctoral thesis, Alma Mater Studiorum - Università di Bologna, 2018. http://amsdottorato.unibo.it/8304/1/CHANG_CHIHPING_tesi.pdf.
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This thesis focuses on the interaction between social network sites (SNS) and the legal system, trying to answer a specific question, that is, through introducing social media evidence, whether there is a change of finding facts and identifying the truth in criminal proceedings. To achieve the research objectives, three sub-topics should be discussed in turn; first, how can we transform information on social network sites to valuable evidence in court? In this part, the research will explore the proceedings of extracting information on SNS, such as posts, photos, check-in on Facebook etc., in order to use as evidence in the courtroom from the perspectives of law and internet forensic. Second, considering characteristics of these social media evidence, e.g. easy to be copied, deleted, tampered and transmitted, is it necessary to separate from evidence obtained through other technology or forensic science? Should the legal system need a new set of regulation on social media evidence? Third, how can we conquer challenges to core values in legal system, such as the privilege against self-incrimination or expectation of innocent in this digital era? As the positive contribution, this research tries to answer whether social network sites are a convenient tool for criminal prosecution, and whether internet forensics is useful to assist the investigational authority accusing the crime and finding the truth more accurately, to achieve the ultimate goal of the criminal procedure?
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Williamson, Thomas Manclark. "Strategic changes in police interrogation : an examination of police and suspect behaviour in the Metropolitan Police in order to determine the effects of new legislation, technology and organisational policies." Thesis, University of Kent, 1990. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.256992.
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Rule, Samantha Elizabeth. "A Framework for using Open Source intelligence as a Digital Forensic Investigative tool." Thesis, Rhodes University, 2015. http://hdl.handle.net/10962/d1017937.
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The proliferation of the Internet has amplified the use of social networking sites by creating a platform that encourages individuals to share information. As a result there is a wealth of information that is publically and easily accessible. This research explores whether open source intelligence (OSINT), which is freely available, could be used as a digital forensic investigative tool. A survey was created and sent to digital forensic investigators to establish whether they currently use OSINT when performing investigations. The survey results confirm that OSINT is being used by digital forensic investigators when performing investigations but there are currently no guidelines or frameworks available to support the use thereof. Additionally, the survey results showed a belief amongst those surveyed that evidence gleaned from OSINT sources is considered supplementary rather than evidentiary. The findings of this research led to the development of a framework that identifies and recommends key processes to follow when conducting OSINT investigations. The framework can assist digital forensic investigators to follow a structured and rigorous process, which may lead to the unanimous acceptance of information obtained via OSINT sources as evidentiary rather than supplementary in the near future.
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Vaz, Denise Provasi. "Provas digitais no processo penal: formulação do conceito, definição das características e sistematização do procedimento probatório." Universidade de São Paulo, 2012. http://www.teses.usp.br/teses/disponiveis/2/2137/tde-28052013-153123/.
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O desenvolvimento de novas tecnologias e a formação da sociedade da informação, a partir do Século XX, acarretaram novos hábitos pessoais e sociais e transformações no processamento e arquivamento das informações. O tratamento e o registro de fatos e ideias passaram a ser feitos de maneira digital, com o uso de dispositivos eletrônicos que operam no sistema binário. Esse novo panorama trouxe diversos reflexos para o processo penal, principalmente relacionados à prova. Entretanto, a legislação e a jurisprudência não acompanharam o avanço tecnológico, abrindo-se um vazio normativo em matéria de procedimento probatório. Por essa razão, faz-se imprescindível a análise dos aspectos técnicos e sociais em face da teoria da prova, para se buscar conceituar o resultado do desenvolvimento tecnológico, ou seja, a prova digital, com a verificação de sua natureza jurídica e do procedimento probatório adequado para sua utilização no processo penal brasileiro. Assim, o objetivo desta tese é aferir o conceito e a natureza jurídica da prova digital e demonstrar que ela constitui espécie própria de fonte de prova, que, embora assemelhada ao documento, apresenta características peculiares, que demandam regulamentação específica de seu procedimento probatório. A partir do delineamento do conceito, da classificação e da caracterização da prova digital, examinam-se os meios de obtenção de prova e meios de prova adequados a essa fonte sui generis, observando a suficiência e a propriedade das normas existentes no ordenamento atual. Ao final, destacam-se os principais aspectos que carecem de regulação, propondo-se estrutura ainda rudimentar de normas para a matériaThe development of new technologies and the consequent rise of the Information Society, starting in the twentieth century, led to new personal and social habits and a revolution in the processing and storage of information. In this context, treatment and record of facts and ideas turned to be made digitally with the use of electronic devices operating in the binary system. This new situation has brought several consequences for the criminal proceedings, notably with respect to the evidence. However, legislation and case law have not kept up with the pace of technological change, opening up a normative vacuum in the field of evidence. For this reason, it is essential to analyze the technical and social aspects of this new scenario state of evidence theory in the wake of these changes, so as to conceptualize and establish a proper legal and evidentiary procedure for the verification of digital evidence in the criminal justice process. In assessing the concept and the legal nature of digital evidence, this thesis demonstrates that digital evidence is fundamentally a distinct kind of evidence, which, while similar to the document, nevertheless presents unique characteristics that require specific regulation of its evidentiary procedure. From the definition of the concept, classification and characterization of digital evidence, this thesis examines the proper methods of obtaining and producing digital evidence in a manner consistent with its unique nature, while at the same time questioning the sufficiency and adequacy of the rules in the current law regarding such methods. Finally, this thesis proposes a rudimentary framework of rules for this field.
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Yu, Mou. "Written evidence and the absence of witnesses : the inevitability of conviction in Chinese criminal justice." Thesis, University of Warwick, 2015. http://wrap.warwick.ac.uk/72814/.
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Through analysis based on an empirical study of the Chinese criminal process, this thesis examines the underlying reasons that lead to a striking feature of criminal trials in China---the absence of witnesses. The Chinese criminal justice system routinely relies on official written dossiers to determine the guilt or innocence of the accused. To investigate whether the constructed written evidence is truly reliable, participant observation and semi-structured interviews have been conducted to explore how these investigative dossiers are created, scrutinised and utilised at different stages of the criminal process. Themes that emerge in this study include the police's manipulation and fabrication of written statements, prosecutors' acceptance of, and even encouragement of, police malpractice in falsifying evidence, coerced prosecutorial interrogation in pursuit of a guilty plea, the pro forma trial process, predetermined judicial outcomes based on the official dossier produced and marginalised defence practice throughout the criminal process. Approaching the enquiry from an internal perspective of the legal institutions for the first time within empirical research, this study outlines the key issues with the Chinese criminal justice system through examination of the strategic inter-relationships between the key legal actors, the deep-seated legal culture embedded in legal actions and the structural injustices that follow. Positioning these findings within the Chinese socio-political context, this study reveals that the criminal justice system in China is not a precise truth-finding process, but serves as a State apparatus of social control. The criminal justice system has been structured through the Appraisal System, bureaucratic management, and the central value of collectivism in such a way as to maintain the stability of the authoritarian regime. None of China’s criminal justice institutions are capable of functioning independently to protect innocent individuals from being wrongly accused and convicted. Thus, wrongful convictions should not be seen as aberrational or exceptional, but as an inevitable outcome of established deficiencies.
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Vijay, Sianne Diana. "The Impact of Criminal Justice Interventions and Social Policies on Family Violence: Theory and Evidence." Scholar Commons, 2016. http://scholarcommons.usf.edu/etd/6599.
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In 2014, the Child Protective Services received 3.6 million referrals alleging child abuse and neglect, of which, 702,000 children were victims of abuse and neglect and an estimated 1,580 children died due to maltreatment. In addition to this appalling toll, the welfare effects of child victimization are substantial. Evidence suggests that compared to demographically similar adults who were non-victims, adults with documented histories of maltreatment are more likely to engage in criminal behavior; have adverse mental and physical health problems such as depression, addiction and post-traumatic stress disorder; and have lower levels of education and earnings. These essays contribute toward the understanding of the consequences of two very distinctive policies – mandatory arrest and medical marijuana laws – and their impact on child maltreatment.
An important and controversial question in criminal justice policy concerns whether aggressive sanctions, such as mandatory arrest policies, serve as effective deterrents to familial violence. Chapter 1 provides a theoretical framework that models child abuse in which I allow for a strategic interaction between the child and his or her abuser. The comparative statics yield clear predictions of the impact of sanctions on child maltreatment – as the cost and probability of external interventions rise, the probability of violence falls. I follow this theoretical analysis with an empirical investigation of the impact of mandatory arrest policies on child victimization. I find a statistically significant and positive relationship between states that have implemented mandatory arrest laws and reported child maltreatment rates. This may seem surprising; however there are two explanations for the results. The likely explanation is that reporting of maltreatment increased in states mandating arrest; alternatively, recidivism may have increased in these states. Evidence from the OLS estimates for the reporting of abuse and child fatality rates (a proxy for the true incidence of child abuse), demonstrates that the increase in maltreatment is not due to recidivism but, in fact, more people reporting abuse to the police and Child Protective Services. The most important result that emerges from the data, however, is that while reported abuse increases in states with mandatory arrest laws, the true incidence of maltreatment actually falls. The ultimate goal of this paper is to stimulate further theoretical and empirical research that focuses on child abuse and prevention, thus enhancing an understanding of how sanctions influence child victimization.
The next chapter looks at one potential risk factor for child maltreatment –marijuana use and liberalization –using evidence from medical marijuana laws (MMLs). Chapter 2 begins by extending the current MML-crime literature by providing a comprehensive evaluation of the impact of MMLs implemented at the state level on reported child victimization rates. I show that specific modes of medical marijuana regulation differentially influence the magnitude of reported incidences of child abuse, a finding which sheds new light on the current literature. More specifically, using fixed effects analysis applied to data from the National Child Abuse and Neglect Database System (NCANDS) and the Uniform Crime Reports (UCR), I show that states that allow for home cultivation in addition to decriminalizing its use see a further increase in the magnitude of reported incidences of child maltreatment rates.
Since completing my dissertation, I have continued to investigate into issues that have implications for both theory and practice in my field. To that extent, I plan to analyze the slowly developing public sphere –a platform where culture and social change rely on both media and conversation.
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Niesing, Gysbert. "The admissibility of unconstitutionally obtained evidence : issues concerning impeachment." Thesis, Stellenbosch : Stellenbosch University, 2005. http://hdl.handle.net/10019.1/50465.
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Thesis (LLM)--University of Stellenbosch, 2005.ENGLISH ABSTRACT: The law regarding the admissibility of unconstitutionally obtained evidence for impeaching the accused's testimony is still undeveloped. This work discusses three of the options available to South African courts and the difficulties inherent in each. The first is to follow the approach of the Supreme Court of the United States. The American approach regarding the exclusion of evidence from the case in chief is strict. Courts are not bestowed with a discretion to admit unconstitutionally obtained evidence: Unless one of the accepted exceptions exist, a court must exclude unconstitutionally obtained evidence in order to deter unconstitutional behaviour by the authorities. Deterrence of unconstitutional police behaviour is however no longer considered controlling when cross-examining the accused. Unconstitutionally obtained evidence - both real and testimonial communications - is therefore admissible for impeachment purposes despite being excluded from the case in chief. The rationale is to prevent the accused giving perjurious testimony in the face of the prosecution's inability to impeach the accused's veracity in the usual manner. The application of the American approach in South Africa has however already been rejected in S v Makhathini.1 The second possibility is for South African courts to follow the position of the Supreme Court of Canada in R v Calder.2 The admissibility of impeachment evidence in Canada - as with evidence in chief - is based on the effect of its admission of the repute of the administration of justice. However, evidence excluded from the case in chief will only in very rare circumstances be admitted in cross-examination of the accused. Finally, the option suggested by this thesis, is to continue the trend started by s 35(5) of the South African Constitution, which has already been applied with great success in cases where the admissibility of unconstitutionally obtained evidence in the case in chief is in issue. Section 35(5), like the Canadian s 24(2) it bears some resemblance to, gives courts a discretion to exclude unconstitutionally obtained evidence on the basis of unfairness to the accused or the effect admission will have on the administration of justice. It is submitted in this thesis that, because of the interlocutory nature of a ruling on admissibility, this approach adapts easily to the admission of limited purpose evidence such as impeachment evidence: If the admission of the unconstitutionally obtained evidence, regardless of whether it was previously excluded from the case in chief, renders the trial unfair or would otherwise be detrimental to the administration of justice it must be excluded.
AFRIKAANSE OPSOMMING: Die reg in verband met die toelaatbaarheid van ongrondwetlik verkree getuienis vir 'n geloofwaardigheidsaanval op die beskuldigde is nog in 'n vroee stadium van ontwikkeling. Hierdie tesis bespreek drie moontlikhede beskikbaar aan Suid-Afrikaanse howe en die probleme inherent aan elkeen. Die eerste is om die posisie van die Amerikaanse Hooggeregshof te volg. Die Amerikaanse posisie betreffende die toelaatbaarheid van getuienis tydens die staat se saak is streng. Howe het geen diskresie om ongrondwetlik verkree getuienis toe te laat nie: Behalwe in gevalle waar aanvaarde uitsonderings bestaan, moet 'n hof dus ongrondwetlik verkree getuienis uitsluit om ongrondwetlike optrede deur die owerhede te voorkom. Voorkoming van ongrondwetlike optrede aan die kant van die polisie is egter nie meer die beherende oorweging wanneer die beskuldigde in kruis-ondervraging geneem word nie. Ongrondwetlik verkree getuienins - beide reel en verklarend van aard - is gevolglik toelaatbaar vir doeleindes van 'n geloofwaardigheidsaanval, ten spyte daarvan dat dit moontlik ontoelaatbaar was tydens die staat se saak. Die rede is om te voorkom dat die beskuldigde meinedige getuienis lewer terwyl die staat verhoed word om the bekuldigde se geloofwaardigheid op die gewone manier te toets. Hierdie posisie is egter al verwerp in S v Makhathini. 3 Die tweede moontlikheid is om die posisie soos uitgele deur die Hooggeregshof van Kanada, in R v Calder 4 te volg. In Kanada word die toelaatbaarheid van getuienis rakende geloofwaardigheid - sowel as getuienis rakende skuld - bepaal deur die invloed wat die toelating daarvan op die reputasie van die regspleging het. Getuienis wat ontoelaatbaar is tydens die staat se saak sal egter slegs in baie beperkte omstandighed toegalaat word tydens kruisondervraging van die beskuldigde. Laastens, die opsie wat voorgestel word deur hierdie tesis, is om voort te gaan met die patroon wat ontwikkel is deur art. 35(5) van die Grondwet van Suid-Afrika, wat alreeds met groot sukses toegepas is in sake waar die toelaatbaarheid van ongrondwetlik verkree getuienis in die staat se saak ter sprake was. Artikel 35(5), soos Kanada se art 24(2) waarmee dit tot 'n mate ooreenstem, gee howe 'n diskresie om ongrondwetlik verkree getuienis uit te sluit op grond van onregverdigheid teenoor die beskuldigde of indien die toelating daarvan 'n negatiewe invloed op die regspleging sal he. Omdat 'n beslissing oor die toelaatbaarheid van getuienis tussenstyds van aard is, pas dit goed aan by die verdere ondersoek na die toelaatbaarheid van getuienis wat slegs VIr 'n beperkte doel aangebied word: Indien die toelating van ongrondwetlik verkree getuienis, ongeag of dit voorheen uitgesluit was uit die staat se saak, die verhoor onregverdig maak of die regspleging negatiefbeinvloed, moet sulke getuienis uitgesluit word.
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Lu, Gwo-Shiun, and 盧國勳. "An Investigation on Media Evidence in Criminal Evidence Law." Thesis, 2007. http://ndltd.ncl.edu.tw/handle/70400906962769873710.
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Campbell, Jean. "Rules of evidence in criminal cases in South Africa." Thesis, 2015. http://hdl.handle.net/10539/16483.
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