Trials, legal systems, governments, and market economies are all complex adaptive systems. Viewing them in that light opens up new avenues for research, and leads to a possibly unprovable supposition that human flourishing well be enhanced at the intersection of societies with a commitment to the rule of law that embrace free elections, market economies and responsive legal systems of which the common law is the paradigmatic example. These complex adaptive systems have the advantage of feedback mechanisms that may facilitate the intelligent exploitation of the vast amount of information contained in each of the systems.

Fact, as the logical starting point of evidence law, is empirical in nature. It is this very feature of fact that shapes the basic attribute of evidence, i.e., relevance, and determines that fact-finding is a process of empirical inference. Hence, the truth ascertained by the fact-finder through the “Mirror of Evidence” is probabilistic, characterized by the probability of standards of proof. The “objective fact theory”, which has enjoyed a dominant role in Chinese legal scholarship and judicial practice for a long time, confuses empirical fact with objective existence. As a result, the theory of “objective evidence” was established, and judicial notions such as “seeking truth from fact” and “the perpetrator of every murder case must be captured” are derived from this theory. They not only accounted for the deficiencies in Chinese evidence theories and system, but also led to judicial injustices. In recent years, the Chinese evidence theories and system have evinced a trend of transformation, nevertheless, this transformation is still unfinished.

Beyond any theoretical suppositions or assumptions regarding the greater reliability of court-appointed experts as opposed to expert witnesses, very few analyses have been conducted to test the hypothesis in current legal systems. And this is precisely the objective of this work: taking the current Spanish procedural system as my example, I will set out to question not only the necessary epistemic superiority of court-appointed expert opinions, but also the fact that the mere origin of the expert opinion is a relevant factor that should be considered. As we shall see, the selection, prepping and remuneration of the expert could be regulated in such a way that they do not even guarantee the impartiality of the court-appointed expert; however, in order to assess the reliability of an expert opinion we would have to evaluate what the expert did and asserted in the specific case, and this is independent of their origin.

This contribution discusses two theses on juridical evidence: the ostension thesis and the inference thesis. According to the former, the process of juridical proof typically requires some kind of ostensive act. In this sense, the evidence consists of some kind of element susceptible of being shown, or exhibited, or indicated to someone in a given context. According to the second thesis, the process of juridical proof necessarily requires inference. In this process, juridical evidence becomes the content of one or more inferences performed by the parties or by the fact-finders (judges or jurors). It can be the content of a premise which, together with other premises, leads to a conclusion about the disputed facts; or the content of a conclusion to which the premises lead. The two theses concern the process of juridical proof, but also the evidence involved in the process, since some characters of the process affect its content. Evidence is ostensively shown and inferentially processed.

This chapter offers a critical review of reported fingerprint cases in three common law jurisdictions covering the period from the beginning of the twentieth century until the time of publication. It considers how the tools of adversarialism were applied to the admissibility and use of fingerprint evidence in criminal proceedings. It provides a detailed survey of the manner in which defence and appellate counsel contested fingerprint evidence, how courts responded to these challenges in trials and appeals and, implicitly, how examiners testified and prosecutors presented this evidence. In order to facilitate the analysis, the chapter draws upon mainstream scientific research and recommendations. This scientific knowledge operates as a standard that can be used to evaluate legal representations and uses of fingerprint evidence, as well as the effectiveness of legal rules, procedures and personnel. The chapter concludes that legal institutions in each one of these jurisdictions were basically inattentive to the epistemological dimensions of latent fingerprint evidence. Adversarial trial safeguards, including appeals, did not bring the lack of testing and systematic over-claiming to the attention of the courts.

This paper examines the position taken and the discourse on the right of silence in Singapore. By position, I mean what the law is and how it got there. By discourse, I mean how officials talk when they go about defending legislative amendments or praising the current law. Does the experience in Singapore reveal a distinctly Asian perspective to the right of silence? The study of Singapore will be used as a springboard for theoretical reflections on the right in general. I hope to illustrate or instantiate this general point: while evidential reasoning is primarily theoretical; it is legally regulated by rules that are often shaped by practical – including political and ethical – considerations.

This paper considers the impact which European human rights law has made upon the common law rules of evidence with reference to the approach the European Court of Human Rights (ECtHR) has adopted towards exclusionary rules. Particular attention will be given to rules that have been developed by the ECtHR in relation to the right to counsel during police questioning (the so-called ‘Salduz’ doctrine) and the right to examine witnesses (the so-called ‘sole or decisive’ evidence rule). It will be argued that the most recent decisions in these respects appear to dilute some of the impact that these rules appeared to have made to the common law and diminish the effectiveness of the Court as a setter of evidentiary standards for domestic jurisdictions.

In private international law, the traditional view has been that all aspects of the burden of proof are procedural. It is typically inferred that a forum court properly uses the law of the forum on such matters even when comity dictates the recognition and application of the substantive law of another jurisdiction to the matter in dispute. However, this characterization has never been entirely accurate, at least in American law. Moreover, there has been discernible movement toward the opposite conclusion over the last century. In order to make sense of this, it is necessary to recognize that the two components of the burden of proof, the burden of persuasion and the burden of production, have quite different functions in an adversary system. Once these functions are identified, it becomes clear that only the burden of production, in both its allocation and the severity of the burden that it imposes, should be governed by forum law, while the burden of persuasion, in both its allocation and the severity of the burden that it imposes, should be treated as part of the substantive law that the forum court chooses to apply.

My concern here is with articulating what Law as a discipline or the subject matters that it studies may have to offer to a distinct and semi-autonomous multi-disciplinary field. However, it is worth emphasising that throughout history, and especially in the twentieth century, our discipline has been quite open to outside influences in respect of evidence. I am personally interested in finding practical ways forward, although this paper addresses a more intellectual question: What might we as jurists, and our heritage of both theory and practical decision-making, contribute to an enterprise devoted to stimulating cross-fertilisation, co-operation and the search for a reasonably common core or family of cross-disciplinary relations for Evidence as a recognised multi-disciplinary field?

The purpose of this paper is not to suggest that there are no differences between the different legal systems, but rather to argue that these differences are not necessarily accurately reflected in the accusatorial - inquisitorial typology. By engaging more with the realities of criminal process, it should be possible to overcome the traditional adherence to the exclusionary rules versus free proof dogma and provide new insights into comparative criminal evidence. These arguments will be illustrated with reference to the evidential consequences of a violation of the right to counsel in Switzerland. This chapter will draw from data collected in the course of a large empirical study of criminal trials, the Trial Observation Project, funded by the Swiss National Science Foundation. The study set out to document the nature of the implementation of trial rights in practice in order to challenge some of the principal assumptions underlying normative theorising on trial rights. The chapter will begin by challenging the assumption that the Swiss criminal procedure system, which clearly falls within the ‘continental European’ tradition, gives the fact-finder total freedom of proof in considering the evidence.

The essay deals with certain problems concerning the logical structure of evidential inferences. First of all, certain premises are expounded, mainly about the nature and the function of evidence in connection with the theories of judicial decisions. The core of the essay is then devoted to the analysis of such inferences, based mainly upon the inferential model proposed by Toulmin. This model is used in order to examine the most important and frequent situations in which complex sets of inferences are necessary to achieve a rationally justified decision. The final part is devoted specifically to the problem of statistical evidence in general and in cases of toxic torts.

Collective agents play a critical role in the legal determination of facts. The jury continues to be the primary fact-finding institution in many legal cultures, and multi-member courts are also entrusted, in some legal systems, with the task of determining the facts at trial. Notwithstanding the relevance of group decision-making in evidential reasoning in law, legal epistemology for the most part embraces a highly individualistic perspective. A focus on the individual processes of legal decision-making is also a characteristic of attempts to address problems of legal epistemology by using the virtue theory framework. In this chapter, my aim is to contribute to the study of the social dimensions of deliberation about factual issues in law. More specifically, I will examine the relevance of group deliberative virtues, i.e., the character traits that enable sound group deliberation, to the epistemology of legal proof.

The First World Congress on Evidential Legal Reasoning, organised by the Legal Culture Chair of the University of Girona, was held between 6 and 8 June 2018. The Congress was attended by 350 participants and featured 18 speakers from 4 continents. The three days of formal and informal presentations and discussions yielded excellent results, strengthening the interrelation between the legal communities and specialists of different traditions. The eighteen papers from the Congress, reviewed by their authors based on the discussions and the suggestions made at the Congress, have been compiled in this book.