Normal view MARC view ISBD view

Evaluation of evidence : pre-modern and modern approaches / Mirjan Damaška, Yale University, Connecticut.

By: Damaška, Mirjan R, 1931- [author.].
Material type: materialTypeLabelBookSeries: ASCL studies in comparative law.Publisher: Cambridge, United Kingdom ; New York, NY, USA : Cambridge University Press, 2019Description: viii, 152 pages ; 24 cm.Content type: text Media type: unmediated Carrier type: volumeISBN: 9781108497282 (hardback).Subject(s): Evidence (Law)
Contents:
Machine generated contents note: Prologue; 1. The origin of Roman-canon legal proof for criminal cases; 2. Epistemic foundations; 3. Orientation in the labryinth; 4. The two-eyewitnesses rule; 5. The probative impact of confessions; 6. The negative impact of legal proof; 7. Roman-canon rejection of persuasive evidence; 8. Evading the Roman-canon full proof standard; 9. Recapitulation; 10. Continental successors to Roman-canon legal proof; 11. Roman-canon legal proof and common law evidence; Epilogue.
Summary: "Judges were never bound by law to convict a defendant unless they considered him guilty. Yet, they could be prohibited by law from convicting a person they consider guilty due to the absence of legally prescribed or the presence of legally prohibited evidence.Evaluation of Evidence addresses the question: should the law restrict the freedom of judges in assessing the probative value of evidence in the criminal process? Tracing the treatment of evidence from pre-modern to modern times, Mirjan Damaška argues that there has always been some understanding about rules regarding the use and treatment of evidence, and these rules should not be looked askance as a departure from ideal arrangements. In a time when science and technology have the ability to contribute to factual inquiry, there needs to be acceptance of rules that expand or corroborate evidence produced by our native sensory apparatus"-- Provided by publisher.Summary: "Should the law restrain the freedom of the trier of facts to determine the value of evidence in criminal cases? This question intensely preoccupied nineteenth-century lawyers. On the continent of Europe, the triggering event for mulling it over was the challenge which the French revolutionary idea of free evaluation of evidence presented to traditional legal proof rules of Roman-canon origin. In England, responsible for stirring the debate was Jeremy Bentham's scathing critique of the subjection of fact- finding activity to legal regulation. Although his primary target was rules on the admissibility of evidence, he also lambasted rules of weight. In the battle over the fate of the ancien regime's justice system, which relied on legal proof rules, the debate became politicized and acrimonious. As the conceptual scaffolding for this debate, continental legal theorists posited a stark contrast between two fact-finding schemes - one rejecting and the other adopting legal constraints on the fact-finders' assessment of the value of evidence. English jurors were placed in the former and continental professional judges in the latter scheme. In this Manichaean opposition, English jurors appeared completely free from legal constraints, while continental judges seemed like robotic implementers of Roman-canon rules on the quantity and quality of evidence, required to arrive at factual findings irrespective of their personal assessment of evidence. This opposition was accepted as true in common law countries and became the dominant account of how factual findings were made on the continent during the ancien regime"-- Provided by publisher.
Tags from this library: No tags from this library for this title. Log in to add tags.
    average rating: 0.0 (0 votes)
Item type Current location Call number Status Date due Barcode
Book Law Main Library
Open Shelf Collection
(D)11.7 K2261 .D36 2019 (Browse shelf) Available 1000100174

Includes bibliographical references and index.

Machine generated contents note: Prologue; 1. The origin of Roman-canon legal proof for criminal cases; 2. Epistemic foundations; 3. Orientation in the labryinth; 4. The two-eyewitnesses rule; 5. The probative impact of confessions; 6. The negative impact of legal proof; 7. Roman-canon rejection of persuasive evidence; 8. Evading the Roman-canon full proof standard; 9. Recapitulation; 10. Continental successors to Roman-canon legal proof; 11. Roman-canon legal proof and common law evidence; Epilogue.

"Judges were never bound by law to convict a defendant unless they considered him guilty. Yet, they could be prohibited by law from convicting a person they consider guilty due to the absence of legally prescribed or the presence of legally prohibited evidence.Evaluation of Evidence addresses the question: should the law restrict the freedom of judges in assessing the probative value of evidence in the criminal process? Tracing the treatment of evidence from pre-modern to modern times, Mirjan Damaška argues that there has always been some understanding about rules regarding the use and treatment of evidence, and these rules should not be looked askance as a departure from ideal arrangements. In a time when science and technology have the ability to contribute to factual inquiry, there needs to be acceptance of rules that expand or corroborate evidence produced by our native sensory apparatus"-- Provided by publisher.

"Should the law restrain the freedom of the trier of facts to determine the value of evidence in criminal cases? This question intensely preoccupied nineteenth-century lawyers. On the continent of Europe, the triggering event for mulling it over was the challenge which the French revolutionary idea of free evaluation of evidence presented to traditional legal proof rules of Roman-canon origin. In England, responsible for stirring the debate was Jeremy Bentham's scathing critique of the subjection of fact- finding activity to legal regulation. Although his primary target was rules on the admissibility of evidence, he also lambasted rules of weight. In the battle over the fate of the ancien regime's justice system, which relied on legal proof rules, the debate became politicized and acrimonious. As the conceptual scaffolding for this debate, continental legal theorists posited a stark contrast between two fact-finding schemes - one rejecting and the other adopting legal constraints on the fact-finders' assessment of the value of evidence. English jurors were placed in the former and continental professional judges in the latter scheme. In this Manichaean opposition, English jurors appeared completely free from legal constraints, while continental judges seemed like robotic implementers of Roman-canon rules on the quantity and quality of evidence, required to arrive at factual findings irrespective of their personal assessment of evidence. This opposition was accepted as true in common law countries and became the dominant account of how factual findings were made on the continent during the ancien regime"-- Provided by publisher.

There are no comments for this item.

Log in to your account to post a comment.