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In addition to admitting defense counsel, English judges undertook a further effort to safeguard against the mounting dangers of 18th-century prosecutorial practice, by creating the law of criminal evidence. Among the rules of evidence that were developed was the corroboration rule for accomplice testimony, the confession rule excluding suspect pretrial confessions, and the hearsay rule. This chapter examines the emergence of the law of criminal evidence based largely on a set of historical sources called the Old Bailey Sessions Papers, which came to light only in recent decades. These pamphlet accounts depict trials proceedings at the main London criminal court, the Old Bailey, from the 1670s into the 1910s.

This chapter explores four rival perspectives or approaches to conceptualizing criminal procedure and evidence designated: doctrinal-conceptualist; epistemological; institutional; and normative. These four ideal-types are intended to represent core strands in contemporary common law scholarship, viewed from a British perspective. This chapter, in other words is largely an exercise in sympathetic reconstruction of existing theory and practice rather than a building from the ground up of conformity with an ideal theoretical blueprint. Any purported contrast between ‘procedure’ and ‘evidence’ is slippery at the best of times; and readers may need temporarily to suspend belief in their own jurisdiction's conceptual, disciplinary, and pedagogic taxonomies.

This chapter examines the conventional evidence doctrine and criticizes it for insufficiently regulating adjudicative fact-finding. It levels a general opposition to free evaluation of evidence. It argues that the legal regulation of adjudicative fact-finding needs to be tightened, rather than scaled down. Specifically, evidence law should regulate the apportionment of risk of error in adjudicative fact-finding. This regulation should control two categories of decision: (1) allocation of the risk of error between parties, and (2) the trade-offs between the substantive cost of errors and the cost of fact-finding procedures that aim at avoiding those errors.

This chapter identifies the domain of evidence law discussed throughout the book. It draws a fundamental distinction between the fact-finding objective of the law and objectives extraneous to fact-finding that the law promotes through rulings on evidence. It identifies three categories of genuinely evidential rules and doctrines: (1) rules and doctrines that minimize the risk of error by enhancing the accuracy of fact-finding; (2) rules and doctrines that reduce the costs that fact-finding procedures and decisions incur; and (3) rules and doctrines that apportion the risk of error between litigants. The chapter also analyzes the means-end relationship between evidence rules and the controlling substantive law.

This chapter analyzes two epistemological paradoxes: Lottery and Preface, together with their legal derivatives, Gatecrasher, Blue Bus, Two Witnesses, and Prisoners of the Yard. It identifies the fundamental function of evidence law as apportioning the risk of error under uncertainty. The chapter develops the principle of maximal individualization that eliminates the paradoxes. This principle has a number of features with different applications in civil and criminal adjudication. These features are distributed across two dimensions — epistemological and moral. Within the epistemological dimension, the maximal individualization principle contributes to fact-finding. Within the moral and political dimension, this principle apportions the risk of error.

This chapter presents an economic analysis of evidence law. Cost-efficiency requires adjudicators to minimize the aggregate cost of accuracy-enhancing procedures and fact-finding errors. The chapter examines the evidential mechanisms to attain this goal. These mechanisms enhance cost-efficiency by eliminating the problem of private information and the misalignment between the private litigants’ incentives and the social good. These mechanisms include decision rules that determine the burdens and the standards of proof, as well as different process rules that determine what evidence is admissible and what fact-finding methodologies are allowed.

The Scottish Parliament has contributed significantly to the development of the Scots law of evidence, and we would not wish to downplay its achievements in that regard. This chapter shows that evidence is one area in which the Westminster Parliament could not be accused of neglecting Scots law. If a need for legislative reform was identified, it was generally met. Thus, while the measures introduced by the Scottish Parliament have been important, indeed quite radical in some cases, they have tended to continue the legislative development of particular areas of the law of evidence already begun by the Westminster Parliament. No real theme emerges from those measures. They have dealt with a series of different issues, each in a specific way. The Scots law of evidence continues to evolve along its own lines, in some respects similar to and in others different from the law of England, but that has long been the case, so that this owes nothing to the creation of the Scottish Parliament.

This chapter consists of three main parts. It first discusses the effect of various cognitive limitations, heuristics, and biases on the actual and perceived credibility of various types of evidence—including eyewitness testimonies, probabilistic data, and circumstantial evidence. It further examines the extent to which the use of expert testimonies can overcome such heuristics and biases. The second part analyzes behavioral aspects of burden-of-proof rules, such as the justification for placing the burden on the plaintiff, and the actual meaning of the standard of proof in civil and criminal proceedings. Finally, the third part argues that while people’s bounded rationality creates obstacles for judicial truth-finding, it also makes it much harder for interested parties, litigants and witnesses, to hide the truth—thus facilitating accurate fact-finding.

A challenge facing health inequalities research is the ‘inverse evidence law’, whereby the availability of evidence tends to vary inversely with the potential impact of the intervention. This chapter reflects on the need to address this by going beyond experimental approaches to evaluate the health inequalities impact of policies as they happen. Broadening research methods to include these ‘natural experiments’ raises questions about causality and the validity of research methods. The chapter briefly discusses experimental and realist perspectives on causality in the evaluation of social policy. It also outlines econometric methods that have been developed to evaluate the impact of ‘natural experiments’, discusses some of the limitations of these, and suggests how they can be enhanced through insights from theory-based approaches to evaluation. Finally, it discusses some of the implications of this for evidence synthesis, and concludes that the synthesis of econometric and qualitative methods, within a realist framework, has great potential for generating evidence to reduce health inequalities.

Existing works on inter-state cyber operations have focused so far on whether such operations are consistent with primary norms of international law and on the remedies available to the victim state under the jus ad bellum and the law of state responsibility. They have almost entirely neglected a discussion of the evidence the victim state needs to produce to demonstrate that an unlawful cyber operation has been conducted against it and that it is attributable to another state. Taking the International Court of Justice’s case-law into account, the chapter discusses who has the burden of proof in relation to claims seeking remedies for damage caused by cyber operations, the standard of proof required in the cyber context, and, finally, the possible methods of proof, distinguishing between those which are admissible and those which are inadmissible.

This introductory chapter discusses the theme of this volume which is about the history of cryptographic culture and the place of evidence law in the age of electronic documents. This volume offers a counterpoint to the preference for the analysis of the geometry of the line and describes the deployment of electronic signatures within the very professions entrusted with the production and management of documentary evidence. It also argues against the mathematization of cryptography and proposes a technical foundation for digital signatures based on the mathematics of public-key cryptography.

Civil procedure has been the primary focus of Adrian Zuckerman’s evidentiary scholarship in recent decades. In contributing to a celebration of his profound and lasting influence on the procedural law and scholarship of England and Wales, this essay concentrates on Zuckerman’s earlier work primarily addressing criminal evidence and procedure. It identifies and elaborates on three particularly significant conceptual innovations in Zuckerman’s evidentiary writings concerning the (1) disciplinary domain; (2) institutional context(s); and (3) normative sources of evidence law. These conceptual advances are expounded in terms of three correlative dynamic disciplinary and institutional transitions: (1) from ‘Law of Evidence’ to ‘Evidence and Proof’; (2) from transubstantivity to procedural differentiation; and (3) from evidentiary rules to principled discretion. In his ground-breaking work on the principles of criminal evidence, I argue, Zuckerman challenged us to rethink the disciplinary contours, normative foundations and jurisprudential methodologies of common law evidence. Against the prevailing common law orthodoxy of a Thayerite model of generic exclusionary rules, Zuckerman insisted that criminal evidence should be reconceptualized as the practical wisdom of principled discretion rooted in the normative values and objectives of penal justice.

This chapter discusses pluralism in international criminal procedure, and more specifically the law of evidence, as it is practised within and across different international criminal tribunals. It draws on a pilot study of interviews with prosecutors, defence practitioners, lawyers, and judges in the Chambers, who have experience of working in several tribunals. It argues that whilst a plurality of evidentiary practices has emerged to meet the particular challenges posed by mass atrocity cases, the fact that the procedural actors are familiar and have experience with other tribunals may be a harmonizing factor. The chapter concludes by considering how over time the experience that professional actors have built up across different tribunals may be used to develop a set of (relatively uniform) evidentiary practices that is sensitive to the peculiarities of prosecuting and adjudicating mass criminality.

This chapter details changes in American law from the eighteenth century onward, covering federal and state constitutions, judges, organization of courts, and civil procedure, and the law of evidence. The colonies declared themselves independent in 1776. However, American law continued to borrow from English law. English doctrines that were needed and appropriate were welcome. Between 1776, and the middle of the nineteenth century, there developed a true republic of bees; their flowers were the social and economic institutions that grew up in the United States. American conditions and ideas were the lawmakers that made American law a distinctive system: a separate language within the common-law family.

The Conclusion starts by summarizing the book's main arguments and analysis. The notion of ‘character’ in law is controversial and raises many difficult theoretical and empirical questions, some of which this book has attempted to answer. The text has looked in detail at the use of the defendant's character in evidence law and sentencing. It has also considered character theories of criminal liability. Finally, the Conclusion looks at the importance of the trend of a greater reliance on character in the criminal trial. While the book has been critical of policies which augment sentences for recidivists, it has argued that the increased use of bad character evidence in the guilt-determination stage of the trial is defensible.

To ensure that substantive criminal law achieves its intended objectives, it is necessary both to investigate alleged crimes and to prosecute the alleged offenders, and then to carry out any sentence imposed. However, in democratic societies committed to human rights, ensuring effective prosecutions cannot be the sole objective. As it is unacceptable to punish the innocent with the force of criminal sanctions such as imprisonment, the process of determining guilt or innocence needs to be fair. So the right to a fair trial carries a prominent place in any general international human rights treaty or national constitutional bill of rights, along with associated principles like the legality and non-retroactivity of criminal law. This chapter examines criminal law in detail, starting with the basic issues of the institutional framework, an overview of measures adopted, legal competence, territorial scope, human rights, and overlaps with other (non-JHA) EU law. It then examines the EU’s harmonization of domestic criminal procedure, in the specific fields referred to in the Treaty of Lisbon in turn: evidence law, suspects’ rights, and victims’ rights.

This chapter examines the sui generis nature of international crimes and the distinct goals typically associated with international criminal justice to see how they affect evidence law and practice. It first discusses the idiosyncrasies of international crimes and the special challenges of investigating, prosecuting, and adjudicating them, including the distinct goals typically associated with international criminal justice. The chapter then connects these characteristics to the debate on evidentiary hurdles intrinsic to the investigation and prosecution of international crimes. It examines how those hurdles affect evidentiary processes, regardless of the forum—whether national or international—in which the crimes are prosecuted.