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Rules of evidence are designed to facilitate trials by controlling what evidence may be presented at trial. Those rules came into being, and evolved over time, due to changes in trial process and structure – especially following the rise of adversarial procedure, whereby control over the marshaling and presentation of facts shifted from judges to lawyers. Refinements and reforms continue to be undertaken to try to improve the scope and clarity of the rules. Trial judges must not only apply the rules, they also have the discretion to make rulings in light of their expectations of the impact they think the evidence will have on jurors. This task involves metacognition: one human trying to estimate the thought processes of others. Thus, evidence rulemakers have been and are, effectively, applied psychologists. The rules of evidence reflect their understanding of the psychological processes affecting, and capabilities and limitations of witnesses, lawyers and jurors. Psychological research and methods provide an additional source of insight and assistance in that endeavor. Better psychological understanding should lead to more effective rules. Psychologists typically employ the scientific method: empirically testing hypotheses in an effort to discover which are valid understandings of how people perceive, store, and retrieve information. To evaluate evidence rules, one could conduct experiments directly on a rule, or borrow from existing knowledge developed in basic research and see whether those understandings support existing or proposed evidence rules.

Many rules of evidence employ balancing tests. The best known is Rule 403, requiring a judge to compare the probative value of evidence against (for example) its prejudicial effect. The problem of metacognition arises when a trial judge is making a decision in a specific case. The required balancing involves more than knowing a rule and the import of the evidence: it engages the judge’s beliefs about how jurors’ cognitive and emotional processes work, predicting how they will respond to the evidence, and comparing that to how the judge thinks the evidence ought best to be responded to. For some categories of evidence, the rulemakers have performed the metacognitive balancing for the judge, deciding that because jurors likely will over-value the evidence, it is best to prevent the jury from hearing those types of evidence. Sometimes the rules aim to encourage socially desirable behavior. For example, to promote repairs of dangerous situations, the rules bar using the fact that repairs were made to prove negligence. A well-established body of research on the “hindsight bias” supports the law’s suspicion that jurors will use evidence of the accident and the repair to answer the question of whether the risk should have been recognized ex ante, and conclude that the failure to correct the situation earlier was negligent. Balancing tests make good psychological sense in theory. Much remains to be learned, however, about whether they “work” (that is, are efficient, lead to good results, encourage socially-desirable behavior) in practice.

Jurisprudence is a theoretical part of law as a discipline and synonymous to legal theory but broader than legal philosophy. Legal theorizing is an activity directed to a variety of tasks all of which are directly concerned with understanding. This chapter discusses the problems of theorizing of evidence in relation to: intellectual history, high theory, middle-order theory, the conduit function, and the integrative or synthesizing function. Evidence is the means of proving or disproving facts, or of testing the truth of allegation of facts. This chapter argues that evidence is a piece of information from which further pieces of information are derived or inferred in a variety of contexts for a variety of purposes. Most legal discourse about the subject of evidence is centred on the rules of evidence.

This chapter deftly points out the differences between current rules of evidence and those that applied in 1865—suggesting that many facts remained undisclosed at the Lincoln assassination trial. It shows how the search for the truth after Lincoln's murder was frustratingly thwarted by a lack of discovery, by prejudicial rulings against the defense by the commission, and by rules that limited the testimony of witnesses favorable to the defense. To an audience that has grown up watching legal shows on television, the rules of evidence in effect in 1865 will come as a major surprise. Without doubt they affected the course of the proceedings, as well as the reputation of the commission's work in history.

This chapter examines the value of brain images as evidence in the criminal law, specifically of the US. Do they pass muster under the Federal Rules of Evidence? It concludes that brain images are as confusing and misleading in trials as in reported experiments, that their ‘moderate dangers’ outweigh their minimal probative value. Thus, they fail the balancing test in FRE 403 and should not be admitted into trials.

This chapter addresses the need to adopt a common-law approach to the handling and evaluation of evidence in international criminal law (ICL). It first explains the challenges inherent in international criminal trials and then describes the development of rules of evidence in ICL. It focuses on the International Criminal Tribunal for the former Yugoslavia (ICTY), the first modern day international criminal tribunal with the most elaborate codification of evidentiary rules. It shows that these rules have been interpreted in such a way that promotes the indiscriminate admission of any material cited as evidence in international criminal tribunals, under the guise of applying the inquisitorial principle of ‘free proof’. The harmonization of international criminal evidence should be based on the limited rules of evidence in the common law tradition, because such rules have a proven track record and are applied in criminal justice systems throughout the world.

This chapter considers the evidence used to prove terrorism charges, with an initial look at evidence-gathering techniques, whether via eavesdropping under the Foreign Intelligence Surveillance Act (FISA) or through custodial interrogation. It then analyzes trends in the introduction of evidence within the courtroom. The government's wide construction of terrorism and association comes squarely into view, as courts in the main have allowed highly prejudicial and arguably irrelevant images, videos, and testimony that seek to link a defendant with terrorism-and wherever possible, al-Qaeda-without an adequate assessment of the evidence's probative value. Finally, this chapter concludes with a discussion of the individuals the government has employed as expert witnesses and finds a startlingly pronounced lack of qualifications and jumbled methodologies that courts have ignored in allowing those individuals to testify in an expert capacity.

This chapter examines the impact of government regulations on how organizations negotiate. It provides an overview of each of the bodies of law that affect most complex business negotiations and how these rules influence the conduct of negotiations. It begins with a discussion of the basic concepts of information disclosure, with particular reference to business information that is deemed confidential, including trade secrets and privileged information. It then turns to an organization's obligations/duties to its constituents as required by corporate law, such as the duty of care, along with the business judgment rule and lawyers' duty to clients. It also describes specific sets of laws that regulate the way a corporation can conduct its negotiations; what a written agreement looks like by focusing on contract law and rules of evidence; and areas of the law that govern specific aspects of any deal, ranging from taxation and trade regulation to intellectual property, employment contracts, and local operating requirements. The chapter concludes by offering practical advice on how companies can deal with the legal issues during a negotiation.

The Australian prosecutions were a difficult balance of several competing imperatives. The government, military, legal professionals and the public all, on balance, called for trials that were fair and upheld the highest standards of Western justice. The prosecutions needed to be effective though, and it was thought that justice out to be carried out swiftly. To maintain this balance, the Australian trials featured procedures that were uncommon in civilian courts and even in pre-war military courts. Cases could be built on affidavit evidence only, and accused war criminals could not avoid a guilty conviction by blaming their crimes on the military chain of command.

Trials are becoming increasingly complex. Much of this complexity is due to scientific or other technical evidence presented by expert witnesses, which is often hard for jurors to understand. By their very nature and role at trial, experts tend to be perceived as credible witnesses. Yet although expert witnesses start at a relatively high level of presumed credibility, many factors can raise or lower the impact of an expert witness’s testimony, and these factors are discussed in detail. This chapter shows that despite a widespread concern that jurors will overvalue expert testimony, empirical research indicates that this belief is yet another myth about jury behavior. In addition, some individuals deal with expert testimony better than others.

If Machiavelli is the founder of modern politics, Descartes is the founder of modern philosophy even though the nature of his modernity is often misunderstood. This chapter examines Descartes’s Discourse on Method as a model of exemplary history or moral autobiography. At the core of the Descartes’s exploration is not simply the standard philosophical question “What can I know?” but the moral question “What should I do with my life?” The chapter examines Descartes’s travels, his discovery of his rules of method, and his elaboration of a “provisional morality.” The chapter examines Descartes’s presentation of his search for a vocation culminating with his vision of a new kind of humanitarianism summed up in his plan to make us “masters and possessors of nature.” This ethic of generosité is intended to extend the benefits of health and worldly well-being on the basis of his new philosophy.

Article 21 of the Rome Statute sets out a complex system of sources of applicable law. In addition to the Statute itself, which contains a relatively detailed list of crimes, Articles 21 includes the Elements of Crimes, a very detailed document which unnecessarily limits the scope of the crimes listed in the Statute and reveals mistrust with regard to the Court, the Rules of Procedure and Evidence, and the case law of the Court, despite the absence of stare decisis. In order to avoid risks of non liquet, Article 21 also refers to other norms and rules of international law. Article 21 establishes a hierarchy between the sources of law it refers to. It combines a formal hierarchy, on top of which lays the Statute, with a substantial hierarchy dominated by ‘internationally recognized human rights’ (Article 21(3)).

In coordination with the other Allies in the Pacific, the Dutch decided to prosecute war criminals in their custody at military tribunals. These “temporary courts-martial” were created by the colonial authorities in 1946 and were located in twelve different cities and towns in the East Indies. This chapter explains how these temporary courts-martial were organized, and how the Dutch decided on the thirty-eight war crimes that could be prosecuted at these tribunals. The chapter looks at the rules of evidence created for use at the military tribunals, and examines defences available to those persons accused of committing war crimes. It also looks at how the war crimes tribunals operated in practice between 1946 and 1949.