Aboriginal oral testimony,hearsay rule and the reception theory of admissibility

Aboriginal peoples title claims are presumed upon spatial and time connections to the lands of their ancestors. In making their submissions, litigants have to circumvent the rule against hearsay and rely upon oral narratives to substantiate their claims of customary ties to land. The obstacles they face is that evidence based on informal anecdotes can cause problems in common law courts, which have long been dependent on textual evidence for probative value. In many Native cultures the idea of time is cyclical, while in the Judeo-Christian calendar time is linear. There is also the fact that oral narratives cannot be viewed in the abstract and the histories are closely linked to inter-generational continuity. The perspective of a narrator is relevant as the sources are often repositories of observation, knowledge and personal belief rather than clear factual understanding of the issue involved. This paper argues for the receptive theory of oral evidence to be adopted in common law courts, which would lead to a fair hearing of Aboriginal claims to land title in Australian and Canadian courts. The paper will distinguish the courts’ current approach to oral testimony submitted by aboriginal people and raise the possibility of an integrated approach based on the recourse to ‘episteme’, which is the appreciation derived from synthesis that accepts that several methodologies may exist and interact at the same time by being parts of various knowledge systems.     

Expert evidence and hearsay

In upholding the admission of expert evidence, some courts have held that hearsay information conveyed via an expert may be admitted as long as the jury is instructed to ignore the facts asserted in the hearsay statements and to use the information only for determining the weight to attribute to the expert's opinion. Results of a mock juror simulation indicated that although hearsay elements conveyed via an expert were perceived as less likely compared to a condition in which the information was independently admitted at trial, it was not completely ignored by the jurors. Further, the findings tended to suggest that the impact of the hearsay on verdict decisions operated primarily by influencing evaluations regarding the likelihood of the hearsay events as opposed to judgments regarding the expert testimony.     

The effects of judicial admonitions on hearsay evidence

Using a simulated civil case, this experiment investigated whether mock jurors: (a) are able to disregard hearsay evidence when admonished to do so, (b) experience psychological reactance and "backfire effects" in proportion to the strength of judicial admonition instructing them to disregard hearsay evidence, and (c) are able to recognize and disregard hearsay evidence without judicial instructions. Results indicate that jurors were unable to disregard inadmissible hearsay testimony in some legal decisions regardless of whether there were judicial instructions to do so. Jurors exhibited backfire effects paying more attention to inadmissible hearsay evidence when they were strongly instructed to disregard it. More specifically, juror backfire effects were evident in both their confidence in their liability verdicts and in their punitive damage awards. The legal and policy implications of these findings are discussed.     

Electronic evidence: A proposal to reform the presumption of reliability and hearsay

There is a general concern amongst judges, lawyers and legal scholars that evidence in digital format is not to be trusted, given that it can be altered and manipulated with ease. Some jurists have called for a UN Convention on matters relating to the authentication and admissibility of electronic evidence. It is debatable whether such a Convention is necessary, but guidance of an international nature might be welcome, providing that any such guidance remains guidance, and does not ossify into legal requirements that fail to take into account the dynamic and constantly developing changes in information technology. In any event, the accuracy of the presumption in England & Wales that a computer is in order at the material time is highly debatable, and it is suggested that this presumption ought to be reformed.     

A theory of identification

This paper analyzes the phenomenon of “identification” by an individual with actors in his environment. It argues that individuals interpret their environment according to “frames,” which they, as recipients of a message, derive by a complex process of interpretation of the communication setting. The paper also argues that individuals identify with actors in their environment, because this identification increases their utility vis-à-vis a “neutral” watching of their environment. The paper applies this approach to a variety of real life examples, in particular to voting.     

A conflict theory of family violence

This paper makes a theoretical accounting of family violence in terms of the antagonistic elements in our culture and society that serve to irritate family relationships. Using conflict theory as the interpretive tool, the existence of family violence is explained as a direct effect of the economic values of the culture. To further strengthen this theoretical position, portions of other theories are included, such as some of the Feminist arguments dealing with the historical development of patriarchy and a symbolic interaction perspective on the process of socialization for the use of violence in stressful situations.     

A cross-cultural validation of self-control theory

Several core propositions of self-control theory were tested utilizing self-reported data gathered from university students in Malta, Trinidad and Tobago, and the United States. The results provide some support for the claim that ineffective parenting decreases self-control and strong support for the proposition that self-control increases deviant behavior. Additionally, tests of slope differences for key theoretical variables across samples generated findings that are largely consistent with the theory's cultural invariance thesis. Implications of the findings from this multinational test are discussed.     

A normative theory of criminal procedure

Criminal Law Forum -     

Toward a comprehensive theory of child sexual abuse: A theory knitting perspective

Abstract

In recent years a number of multifactorial theories of child sexual abuse have been developed. The most influential are Finkelhor's (1984) Precondition Model of child sexual abuse; Hall and Hirschman's (1992) Quadripartite Model; and Marshall and Barbaree's Integrated Theory (1990). While all three of these important theories have a number of strengths, each has serious weaknesses that limit its ability to provide a satisfactory explanation of child sexual abuse. In this paper we attempt to integrate the best elements of the three theories into a comprehensive etiological theory, or at least the beginnings of such a theory. After outlining the concept of theory knitting we briefly summarise each of the multifactorial theories and their major strengths and weaknesses. We then develop a comprehensive theoretical framework (the Pathways Model) integrating both the overlapping and unique elements of these broad perspectives with some additional concepts derived from various psychological domains. In the final section of the paper we consider the adequacy of the Pathways Model.     

A comparative analysis of general strain theory

Purpose

Since its introduction in 1992, general strain theory (GST) has garnered much empirical support. The large share of this support, however, derives from studies conducted in the United States. There is little comparative research on GST, particularly research that examines the effect of the same or similar strains on crime across countries. Thus, we know little about the generalizability of GST. This study attempts to fill this gap by testing GST in five different cities across Europe: Bucharest in Romania, Sofia in Bulgaria, Riga in Latvia, Kaunas in Lithuania and Reykjavik in Iceland.

Methods

We examine the relationship between five strain measures and violent- and property crime among samples of adolescents in each city using regression techniques.

Results

The data are generally supportive of GST, with most of the strains having significant associations with property and violent crime in all or most of the cities.

Conclusion

GST is generalizable to a range of European cities. Implications and examples for future comparative research on GST are discussed.     

A longitudinal test of the revised strain theory

Agnew's (1985) revised strain theory argues that delinquency results from the inability to escape legally from painful or aversive situations. There is much indirect support for the theory, with experimental and survey data indicating that delinquency is associated with a wide variety of aversive situations. The experimental data, however, are of questionable generalizability and the survey data are primarily cross sectional in nature, leaving unresolved the issue of causal direction. This study examines the relationship between environmental adversity and delinquency using longitudinal data from a nationally representative sample of adolescent boys. A distribution-free method (arbitrary generalized least squares) is used to estimate a covariance structure model depicting a reciprocal relationship between adversity and delinquency. The results support the revised strain theory: environmental adversity has a causal effect on delinquency, but delinquency does not have an effect on adversity.     

The will theory of rights: A defence

Hart's will theory of rights has been subjected to at least three significant criticisms. First, it is thought unable to account for the full range of legal rights. Second, it is incoherent, for it values freedom while permitting an agent the option of alienating his or her capacity for choice. Third, any attempt to remedy the first two problems renders the theory reducible to the rival benefit theory. My aim is to address these objections. I argue that will theory has been made vulnerable due to misinterpretation. The theory has been characterized as placing great stress on liberty rights (or claim-protected liberties), whereas it is powers that are central, and hence not choice but control. My argument does, however, depend upon appealing to an extra-legal notion — the hypothetical contract — but I argue that this is consistent with the main aim of a theory of rights.     

Review essay / A theory of criminal justice

Hyman Gross, A Theory of Criminal Justice New York: Oxford University Press, 1979, xviii + 521 pp.     

期待可能性原理研究

期待可能性原理起源于19世纪的德国。其理论在大陆法系国家和地区的刑法理论中占了重要的地位，并影响刑事立法和司法实践。我国刑法理论对期待可能性原理的研究并不很多，期待可能性仍是我国刑法理论的一个较为陌生的概念。