RETHINKING CHINESE EVIDENCE THEORIES AND RECONSTRUCTING SYSTEM OF EVIDENCE: “A THREAD FOR THE PEARLS OF CHINESE EVIDENCE”

This article analyses Chinese traditional evidence theories that have evolved over a long period of time, to explore which theory, between objectivity and relevancy, best represents the basic attribute and logical thread of evidence. These theories are considered in the context of issues arising in evidential adjudication, including: the “Mirror of Evidence,” truth, the probability of proof standard, the choice between a notion of pursuing 100-percent certainty in adjudication and that wrongful acquittals are better than wrongful convictions, and the statutory proof doctrine comparedwith the system of free proof. Finally, the article presents the framework of and methods for drafting provisions of procedural evidence of the People’s Court.     

Opinion 1/15 of the Grand Chamber dated 26 July 2017 about the agreement on Passenger Name Record data between the EU and Canada

On 26 July 2017, the Grand Chamber of the European Court of Justice rendered its seminal Opinion 1/15 about the agreement on Passenger Name Record data between the EU and Canada. The Grand Chamber considered that the decision of the Council about the conclusion, on behalf of the Union, of the agreement between the EU and Canada about the transfer and processing of PNR data must be based jointly on Article 16(2) about the protection of personal data and Article 87(2)(a) about police co-operation among member states in criminal matters, but not on Article 82(1)(d) about judicial co-operation in criminal matters in the EU of the Treaty on the Functioning of the EU. The Grand Chamber also considered that the agreement is incompatible with Article 7 on the right to respect for private life, Article 8 on the right to the protection of personal data, Article 21 on non-discrimination and Article 52(1) on the principle of proportionality of the Charter of Fundamental Rights of the EU since it does not preclude the transfer, use and retention of sensitive data. In addition to the requirement to exclude such data, the Grand Chamber listed seven requirements that the agreement must include, specify, limit or guarantee to be compatible with the Charter.The opinion of the Grand Chamber has far-reaching implications for the agreement on PNR data between the EU and Canada. It has also far-reaching implications for international agreements on PNR data between the EU and other third states. Last, it has far-reaching implications for Directive 681 of 27 April 2016 on PNR data.     

Digital justice

In a period of growing suspicion about the power of digital technology and ‘tech companies’, this short comment aspires to argue that the conditions for the functioning of the constitutional state contain an inherent obligation for the state not only to be sufficiently sensitive to the changes brought about by digitisation, but also to make use of digitisation. A key condition for the functioning of the constitutional state is e.g. that the judiciary is capable of fully implementing its task of affording legal protection. Reinterpreting this condition in the modern age implies that courts should remain explicitly vigilant when it comes to digitisation. Hence, affording protection is not only a question of what makes formal regulation in a digital world different from regulation in the well-known offline world. If the constitutional state is to be ‘capable’ of implementing its task of affording legal protection, it must also be sufficiently sensitive to the changes brought about by digitisation, as well as deploy the potential that digitisation offers.     

中国行政诉讼制度发展的新路向

我国现行的行政诉讼制度存在诸多缺陷,导致行政诉讼的功能未能充分发挥,有必要通过制度变革加以完善。应该设立行政法院,切实保证行政审判的独立公正;将行政机关之外行政诉讼被告的表述,从"法律、法规授权的组织"变更为"其他承担行政任务的主体";将部分行政规范纳入行政诉讼的受案范围;强化法院对行政裁量与行政解释的审查力度。     

Offenders' lies and truths: an evaluation of the Supreme Court of Sweden's criteria for credibility assessment

Abstract

The criteria used by Swedish courts for assessing credibility of plaintiffs' accounts were for the first time scientifically evaluated. Furthermore, unlike much previous deception detection research, we used offenders as participants instead of college students. False and truthful confessions by 30 offenders were analysed, and few significant effects were obtained. Truthful confessions were rated as having a higher degree of clarity than false confessions. Women's truthful confessions were rated as more credible than their false confessions. The offenders who were most experienced in being interviewed by the police gave a stronger impression of talking about something self-experienced in their false than in their truthful confessions; hence, it seems that offenders with more police interview experience have developed a kind of expertise in telling a convincing lie about crime. Overall, the criteria for credibility assessment used by Swedish courts had very limited usefulness in discriminating truthful and false confessions. A critique of the current status of evaluating statements in Swedish courts is provided.     

‘Done to death by father or relatives’: Irish families and infanticide cases, 1922–1950

In February 1929 the Bishop of Ossory commented on the fact that in Ireland illegitimate infants were often ‘done to death by father or relatives’ (Irish Catholic, 16 February 1929). There were many instances where family members of unmarried women who gave birth were the sole defendants or co-defendants in infanticide cases in post-independent Ireland. Although illegitimate infants were ‘done to death’ by their fathers in a number of cases that were tried at the Central Criminal Court in Dublin between 1922 and 1950, this article will focus on cases where infants were murdered or suspected of having been murdered by relatives of the birth mother both in the Twenty-Six Counties and in Northern Ireland (Irish Catholic, 16 February 1929). For the purposes of this article I have referred to the murder of illegitimate infants as ‘infanticide’ even though there was no separate charge of infanticide in the Irish Free State until 1949. The English infanticide acts of 1922 and 1938 also applied to Northern Ireland. This article discusses the motives of the relatives of single mothers who played a part in the deaths of illegitimate infants. Unmarried motherhood was severely frowned upon in Ireland and the relatives of single pregnant women assisted their female kin in destroying the evidence of extra-marital conception in order to protect the family's honour and moral reputation in the wider community. The records of infanticide trials provide a great deal of insight into the ways in which mainly working-class families dealt with the strain of pregnancy outside wedlock in Ireland between 1922 and 1950.     

The Child's Attorney and the Alienated Child: Approaches to Resolving the Ethical Dilemma of Diminished Capacity

Increasingly lawyers for children follow a model of “client centered” (as opposed to “best interests”) representation in child custody disputes in which the child client defines the objectives of the representation. The client‐centered model, while appropriate in most cases to give voice to the child's preferences in a process that deeply impacts him or her, can create an ethical dilemma for the child's lawyer in cases where a child is truly alienated from the other parent by the actions of the alienating parent. Alienated children strongly and unreasonably express a preference for objectives of representation that might further damage the alienated parent's relationship with the child. The alienated child's objectives may be the result of a campaign of denigration and “brainwashing” by the alienating parent. This Note suggests that when a child is truly alienated from a parent, as diagnosed by a mental health expert, the child may have “diminished capacity” and therefore, the client‐directed model of representation is not adequate. This Note proposes that the Child's Attorney must determine whether the child is of diminished capacity under the Model Rules of Professional Conduct and, if so, must treat the client accordingly under Rule 1.14. Specifically, the attorney may, if all other remedial measures are inadequate, override the child's wishes and advocate a position that the child would take, but for the brainwashing of the child used to alienate him or her from a parent.     

The 2000 American Presidential Election

Abstract

The 2000 Presidential election was one of the longest, most expensive and closest in American history. It was the Presidential election that exposed the flaws (or genius) of the electoral college system, demonstrated the imperfections of media dependency on exit polls and quick election calling, and showed how a third party candidate with just two percent of the popular vote could make the difference in the crucial state of Florida. Democrats lost states they should have won; Republicans lost every big city and most of their suburbs; and the Florida election came down to a five-to-four muddled decision by the Supreme Court. Americans collectively learned a great civics lesson: that even in a bitter, controversial contest, our candidates accept defeat graciously; the simple act of voting is not so simple; and that for all its shortcomings, the electoral college did work.