At the outset, it is important to emphasize two things about this comparative survey. Many of the jurisdictions allowing general admissibility in civil proceedings do in fact limit admissibility in the criminal context. In the seven decades that have passed since Corfu Channel, old issues remained unresolved, and more challenging factual scenarios have been added to the discussion. There are many different types of evidence including the testimony from a witness given in The rule therefore also has a purpose of deterring such conduct in evidence collection,32 an objective that should arguably apply to inter-state proceedings too. 152(2) of the Civil Procedure Code). The relevance of the principle may, however, be weakened in cases where the unlawfully acquired evidence was obtained without the involvement of the party introducing it, as the right or advantage must be acquired by the wrongdoer himself in order to invoke these principles.92 Good faith, on the other hand, appears to be a potential catch-all basis for the many scenarios in which illegally obtained evidence can make its way to a court or tribunal. Mojtaba Kazazi, Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals (1996), 208; Malcolm N. Shaw, Rosennes Law and Practice of the International Court: 19202015 (Vol. Although a generally binding inadmissibility rule does not yet exist, practice demonstrates a tendency to consider such evidence in light of general principles of law. ); whether the evidence was obtained in the course of an unlawful act directed precisely at obtaining the evidence, or whether it was obtained incidental to an independent unlawful act (Corfu Channel, Methanex); whether the evidence was of marginal significance or could be substituted by other evidentiary material (Methanex); and whether the party putting forth the evidence in judicial proceedings was materially involved in the unlawful obtaining of the evidence (Methanex, Persia International Bank, Bancoult III). Brazils Constitution, for instance, stipulates in Article 5(56) that, to ensure fundamental rights, evidence obtained through illicit means [is] unacceptable in the process.118 Admissibility of such evidence is considered an exceptional occurrence and will only be allowed if certain criteria are met.119 Russia, too, regulates the issue in its Constitution, namely in Article 50(2), which prohibits, in administering justice, the use of evidence received through violating federal law.120 The provision has been subject to quite literal application in civil cases.121 France and Italy have also developed, through their jurisprudence, a practice of general inadmissibility: The former, through the principle of loyaut de la preuve or fairness of evidence,122 and the latter, through the judicial application of a deontological approach to admitting such evidence.123, The third approach to illegally obtained evidence can be distinguished from the fourth (see infra, 4.2.4) by the fact that, once a violation of constitutional provisions has occurred, the exclusion is automatic, and no further balancing of interests will be required. Christian Leu, Art. Evidence of whatever type must be both relevant and admissible. Rule 162 stipulates the same threshold for mandatory exclusion as that contained in the ICTY and ICTR Rules, and adds that in particular, evidence shall be excluded if it has been obtained in violation of international standards on human rights, including the prohibition of torture.28. 11 (While the veracity of this confessional statement and the means by which it was obtained are in dispute []). 50; ICJ Rules of Court, Art. 22, 24, 31. Discuss these two requirements in detail. Relevancy of facts had been provided from Section 5 to 55 of Evidence Act 1950. In accordance with its prior practice, the Court will explain what items it should eliminate from further consideration.19, Several scholars have suggested that this lack of evidentiary rules exists for good reason. 3. Rule 402. It is a narrative that radically confutes the one reconstructed by the Majority [].83. Statute of the International Court of Justice, Article 30(1); Elihu Lauterpacht, Principles of Procedure in International Litigation, 345 Recueil des Cours de lAcadmie de Droit International 387 (2011), 501502; Daniel Joyce, Fact-Finding and Evidence at the International Court of Justice: Systemic Crisis, Change or More of the Same, 18 Finnish Yearbook of International Law (2007), 283, 286. According to [the U.K.], the corpora delicti must be secured as quickly as possible, for fear they should be taken away, without leaving traces, by the authors of the minelaying or by the Albanian authorities. Reports 1988, para. Nigeria, Evidence Act 2011, 3 June 2011, available at: https://www.refworld.org/docid/54f86b844.html [accessed 28 November 2019]. ), Max Planck Encyclopedia of Public International Law (2012), 372; Shabtai Rosenne, The Law and Practice of the International Court (1985), 557 (stating that the restrictions upon admissibility of evidence sometimes encountered in national procedure have no place in international adjudication, where the relevance of facts and the value of evidence tending to establish facts are left to the entire appreciation of the court). 29(4) of the Constitution); Greece (Art. Similar fact evidence will be admissible provided two elements are satisfied, namely: 1. See Manfred Nowak and Elizabeth McArthur, The United Nations Convention Against Torture: A Commentary (2008), 503; Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, 17(2) European Journal of International Law (2006), 350. In the specific context of WikiLeaks documents, however, the doubts as to their probative value or veracity was to some extent contradicted by an arbitrator in ConocoPhillips v. Venezuela.82 After the tribunal issued its Decision on Jurisdiction and Merits in 2013, the respondent submitted a number of WikiLeaks cables describing how representatives of the investor briefed the U.S. ambassador in Caracas on compensation negotiations with Venezuela. Jadhav (India v. Pakistan), Judgment of 17 July 2019, I.C.J. Digital Forensics Investigation Jurisprudence: Issues of Admissibility Benzing, supra note 9, 1381; Wolfrum, supra note 6, at 563, para. Art. Although some consider this silence a necessary grant of evidentiary flexibility to judicial bodies, this article argues that it is rather a situation of risky non-regulation. A potential proposal could therefore use the categories established above (see supra, 4.2.5), complemented by criteria considered in international jurisprudence (see supra, 3.5). 64F. 2. A case in point, Spain, demonstrates a strong incorporation of exclusionary rules in its civil procedure. In light of the topic of evidence before international courts and tribunals having recently been added to the International Law Commissions (ILC) long-term working program,1 including the question whether there are rules of admissibility of evidence and, if so, which rules of admissibility could be applied,2 it appears timely to revisit the issue of illegally obtained evidence. 3839. Kotzur, supra note 56, at 514; Robert Kolb, Good Faith in International Law (2017), 23; see similarly in WTO dispute settlement: Michelle T. Grando, Evidence, Proof, and Fact-Finding in WTO Dispute Settlement (2009), 36. Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts Reports 2015, p. 572. 52; ICJ Rules of Court, Art. E.g. evidence, in law, any of the material items or assertions of fact that may be submitted to a competent tribunal as a means of ascertaining the truth of any alleged matter of fact under investigation before it. What are the Rules of Evidence? - FindLaw E.g. Even if not an obligation of result, the nature of good faith as an obligation of conduct seems to require at least in the eyes of investment tribunals some reflection in a rule on admissibility. The Admissibility of Evidence and the Exclusionary Rule. Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia), Application Instituting Proceedings by Timor-Leste, 17 December 2013. The Frye1 test originated from the District of Columbia Court of Appeals in a decision rejecting the admissibility of a blood pressure deception test. Anna Riddell and Brendan Plant, Evidence before the International Court of Justice (2016), 2; Rdiger Wolfrum, International Courts and Tribunals, Evidence, in R. Wolfrum (ed. An important conceptual question arising in some cases is whether it is relevant who obtained the evidence unlawfully and who is using it in court. Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Although the insufficient uniformity of national jurisdictions does not allow for an independent general principle of inadmissibility to be derived from national laws, one important inference is possible. 10 (A/72/10), pp. It considers the legal ramifications and the evolving nature of cyber technical and digital objects. ANNARI FAURIE MASTER OF LAWS - University of South Africa Evidence Law: The Rule of Relevance and Admissibility of - Lawshelf ICJ Statute, Art. Admissible evidence is evidence that may be presented before the trier of fact (i.e., the judge or jury) for them to consider in deciding the case. Each type of evidence has its own rules for establishing relevance and being authenticated, two requirements for admissibility. Wouter Le R De Vos, Illegally or unconstitutionally obtained evidence: a South African perspective, 2 Journal of South African Law (2011), 279280; Lotter v. Arlow, 92 2002 6 SA 60 (This Court has a discretion to exclude evidence in civil matters which has been obtained in violation of the Constitution or by a criminal act or otherwise improperly.). 13; Prli et al., ICTY, Case No. ), International Encyclopaedia of Laws: Civil Procedure, 77. Reports 1986, p. 14, para. Failure to comply with the Daubert standard can result in exclusion of an expert's testimony. 135. ARB/07/30, Dissenting Opinion of Georges Abi-Saab (Decision on Jurisdiction and Merits dated 3 September 2013), p. 23. Corfu Channel, supra note 41, Annex I, List of Documents submitted to the Court, p. 133, points 1819, and p. 135, point 64; Annex 2, p. 144, Question 2. Reports 1974, para. Cyber jurisprudence is the science and philosophy or theory of Law [1]. Evidence: Admissibility of Evidence Criminal and - Academia.edu 210(f), findings of Secretary of Agriculture prima facie evidence in action for damages against stockyard owner; 7 U.S.C. Additionally, the ICTYs discretionary rule requires that decisions on exclusion be taken through a balancing test. A minority opinion in the debate was that the ICJ has, by holding that the minesweeping mission violated international law and was not justified by its purpose to secure evidence, established a rule on inadmissibility of illegally obtained evidence. The most prominently cited decision on the subject of unlawfully obtained evidence is the ICJs judgment in Corfu Channel. The first would be one where information was obtained illegally by someone, put into the public domain, and subsequently used by an uninvolved party in proceedings. Emily Sipiorski, Evidence and the Principle of Good Faith in Investment Arbitration: Finding Meaning in Public International Law, in D. Moura Vicente (ed. Each side should have the opportunity to review . ), International Encyclopaedia of Laws: Civil Procedure, 78. General Admissibility of Relevant Evidence. EDF (Services) Limited v. Romania, ICSID Case No. Discernible trends in admissibility will be a point of emphasis. One could also argue that the ICJ may well have considered inadmissibility, but decided against it by weighing the territorial intrusion against the clarification of exceptionally dangerous circumstances involving mines in international waters. The different variations of this balance of interests test share common criteria. The second track of this discussion on general principles examines whether a general principle of inadmissibility of illegally obtained evidence may be derived from domestic legislations. 152(2), available at: https://www.admin.ch/opc/en/classified-compilation/20061121/201801010000/272.pdf; Natalia Kisliakova, Using illegally obtained evidence in the Court of Arbitration for Sport, 16 February 2018, available at:http://www.cisarbitration.com/2018/02/16/using-illegally-obtained-evidence-in-the-court-of-arbitration-for-sport/. PDF The Admissibility in The Main Trial of Evidence Adduced During a Trial In the context of treaties, prohibitions of illegally obtained evidence also come within the realm of protecting individual rights, specifically the protection from the use of torture.29 Article 15 of the Convention against Torture (CAT) stipulates: Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.30, The inadmissibility of evidence obtained through the use of torture is, on the one hand, based on the conclusion that some degree of unreliability will always attach to such evidence.31 On the other hand, the prime purpose of torture is often to elicit information or confessions for use in judicial proceedings. If that were the legitimate motivation of the decision, mentioning these considerations would have furthered the development of a transparent balancing of interests test when dealing with such evidence. International courts, however, seem strikingly lenient towards evidence obtained by breaching the very law the proceedings seek to enforce. Discuss these two requirements in detail. 213 and 246. Both Article 11.1 of Law 1/1985 on the Organization of the Judiciary, and Article 287(2) of the Civil Procedure Act, regulate unlawfully obtained evidence.124 Article 287 grants the parties the right to challenge evidence obtained by a violation of a fundamental right,125 and depending on when the challenge has been brought, the evidence will be excluded or ruled to have no effect.126 Similarly, in Ireland, a breach of constitutional rights in the obtaining of evidence will lead to the inadmissibility of such evidence, although some requirements as to deliberateness must be fulfilled.127 Besides sound jurisprudence on the issue,128 Greece has a constitutional provision, Article 19(3), that explicitly prohibits the use of evidence acquired in violation of the present article and of articles 9 and 9A.129 The cited articles protect, inter alia, the right to secrecy of correspondence, the inviolability of private and family life, and personal data. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Ayyash et al., Case No. However, it is important to note that these specialized tribunals are confronted with a different set of parties: The admissibility of illegally obtained evidence in international human rights law (similar to criminal law), for instance, requires a balancing between the interests of an individual in the protection of his or her fundamental rights (e.g. Methanex Corporation v. United States of America, UNCITRAL, Final Award of 3 August 2005, Part II, Chapter I, para. See Answer. 1.2 WHAT IS EVIDENCE? 50(4) of the Constitution); Nigeria (Section 14 of the Evidence Act); Russia (Art. The most widespread approach among jurisdictions regulating illegally obtained evidence is to deem such evidence inadmissible if a balance of interests weighs in favor of exclusion. The cases have also elucidated that some sort of balancing of interests will be necessary within each of these potential legal bases to exclude such evidence. An excellent contribution on European countries that deserves mention is the piece by Nunner-Krautgasser and Anzenberger summarizing aspects of the broader research project Dimensions of Evidence in European Civil Procedure.100 The two authors categorized jurisdictions into three branches.101 These three approaches are also confirmed in the more global setting of the present survey, with one alteration in the form of a fourth category. 50; Practice Direction III. 44. Trust and confidence are inherent in international co-operation []). Admissibility of Evidence in Criminal Law Cases - Justia 95. Reports 1986, p. 14, para. Reports 2005, para. Although the ICJ has therefore taken a clear stance on unlawful obtaining of evidence in principle, it has not highlighted an appropriate procedural consequence. Corfu Channel, Methanex and EDF illustrate the significance of general principles of law for decisions on the admissibility of such evidence, particularly the principle of good faith. Nowak and McArthur, supra note 29, at 504. As explained above (see supra, 2), this version of the principle may not be appropriate for use in inter-state cases. Judge Schwebel ([] the Courts attitude towards evidence is demonstrably flexible.); Lauterpacht, supra note 4, at 431; Joyce, supra note 4, at 286. An international court or tribunal could therefore declare evidence as inadmissible if it was obtained in violation of rules of international law (or in a manner capable of seriously jeopardizing the integrity of the proceedings), if consideration of the following factors weighs in favor of discretionary exclusion: (1) factors related to the law breached: the rights violated in the process of obtaining the evidence (their rank and protective purpose); (2) factors related to the breach: whether the unlawful act of obtaining the evidence was deliberately directed at obtaining the evidence, or whether it was obtained incidental to an independent unlawful act; (3) factors related to the evidence: whether the evidence was obtained without involvement of the party introducing it; whether the evidence was publicly available prior to the proceedings; the relevance or significance of the evidence for the proceedings; the possibility to obtain the evidence without a violation, or the difficulty of proving the fact through other evidentiary material; the probative value of the evidence (reliability, authenticity and accuracy); (4) factors related to the proceedings: the nature and subject-matter of the proceedings, or cause of action; the gravity of the violation or antithetical nature of the act by which the evidence was obtained, compared to the seriousness of the alleged internationally wrongful act that the evidence is used to prove. other rules prescribed by the Supreme Court. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. See David Caruso, Public Policy and Private Illegality in the Pursuit of Evidence, 21 The International Journal of Evidence & Proof (2017), 87, 101; Uniform Evidence Manual, Published in Melbourne by the Judicial College of Victoria, available at: http://www.judicialcollege.vic.edu.au/eManuals/UEM/28738.htm. Minimum entry requirements. In a subsequent Interim Decision of 2017, the tribunal rejected the view that the WikiLeaks cables were sufficient proof for Venezuelas allegation that it did make an offer for compensation based on fair market value.84 However, the tribunal did not address the nature or origin of the WikiLeaks cables in its reasoning, and simply appeared to argue that Venezuela neither proffered witness statements nor documentary evidence capable of proving the alleged fact. The approach of general admissibility to such evidence neither seemed to bear scrutiny in the past, nor does it stand the modern-day pace of cyberattacks, leaks, and other intrusions into sovereign spheres. Undergraduate - Study - Trinity College Dublin ), ZPO Schweizerische Zivilprozessordnung: Kommentar (2nd edition, 2016), 1153. Character questions arise in two fundamentally different ways. Ayyash et al., supra note 75, para. Javier Villa Garcaio, La Prueba Prohibida en el Proceso Civil, Proceso y Constitucin: Las Garantas del Justo Proceso, Palestra Editores (2013), 385. 16.77. An elaborate example of a balancing test for unlawfully acquired evidence is found in Australias National Uniform Legislation Evidence Act. 62(2). Accordingly, it could be argued that evidence obtained through breaches of international law constitutes a wrong-doing from which the responsible party should not be able to take advantage or receive rights.90 Amerasinghe already argued that: The answer perhaps lies in approaching each case on its merits with a possible presumption, based on the general principles that no one should benefit from his own wrong-doing and that no right can arise from a wrong, that evidence obtained in violation of international law is in principle inadmissible.91. Evidence must be legally admissible in order to be considered at all by the court. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. The Constitution of Kenya, 2010, National Council for Law Reporting, available at: https://www.wipo.int/edocs/lexdocs/laws/en/ke/ke019en.pdf; Jamil Ddamulira Mujuzi, The Admissibility of Evidence Obtained in a Manner that Violates Human Rights under the 2010 Kenyan Constitution: How Courts Could Interpret Article 50(4), 2 International Human Rights Law Review (2013), 151, 152. 3.3.2 The admissibility of polygraph evidence in various jurisdictions 73 3.3.2.1 The admissibility of polygraph evidence in the United States 74 3.3.2.2 Polygraph evidence in South Africa 78 3.4 Bite mark evidence 79 3.4.1 The analysis of bite marks 80 3.4.2 Challenges to the admissibility ofbite mark evidence 81 One admissible evidence definition is that admissible evidence is any document, testimony, or tangible, physical item, e.g. For the UN Regional Groups, see UN Department for General Assembly and Conference Management, United Nations Regional Groups of Member States, available at https://www.un.org/depts/DGACM/RegionalGroups.shtml. Even if general principles exist in national systems, they may not automatically translate into principles applicable in international law due to structural differences between the systems.152 It is indeed true that the issues faced in international disputes are distinct, not only due to the sovereignty of the parties, but also since courts face more problems in obtaining evidence and are greatly reliant on the evidence provided to them.153 This article therefore argues for a solution that meets the special needs of the international legal system by providing the necessary flexibility, while setting clear standards that enhance transparency for states. Preserving the integrity of judicial proceedings and achieving a factually correct outcome are sometimes directly opposed objectives. Compare inadmissible evidence . Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia (Revision 50), 8 July 2015, Rule 95. This is the most basic rule and a measure of evidence validity and importance. admissible evidence | Wex | US Law | LII / Legal Information Institute Various kinds of evaluative reports are admissible under federal statutes: 7 U.S.C. Similar fact evidence is generally inadmissible because it is irrelevant and can be potentially prejudicial to an accused in that he can be convicted, not because the crime in dispute has been proved, but because of his criminal propensity or bad character. In EDF v. Romania, the tribunal excluded an audio-tape, meant to prove an allegation of corruption, primarily on the basis of a lack of authenticity (see also infra, 3.3).68 However, it also appeared to have considered the unlawful creation of the evidence in its decision to exclude it. In November 2010, the online platform WikiLeaks published around 250,000 confidential diplomatic cables from 274 embassies, consulates and missions of the United States, which were leaked by a member of the United States Army.70 Leaked documents may per se not be considered evidence obtained in violation of international law, as there is no rule of international law prohibiting acts of whistle-blowing.71 The dissemination of such classified information may violate national laws, such as, in the case of the United States, the Espionage Act of 1917 or possibly also U.S. criminal law.72 As is well-known, illegality under national laws will not automatically translate into an international wrong,73 although some appear to suggest otherwise in relation to investment arbitration.74 In any case, the use of WikiLeaks evidence in international judicial proceedings is on the rise, as a recent decision of the Special Tribunal for Lebanon demonstrates.75, In Ayyash et al., four individuals faced trial in relation to the 2005 attack in Beirut that killed former Lebanese Prime Minister Rafik Hariri and 21 others. Your current browser may not support copying via this button. For this purpose, the article will first examine procedural frameworks of international courts and tribunals and treaty provisions that regulate the admission of unlawfully acquired evidence (see infra, 2), as well as how and under which guiding principles international courts and tribunals have dealt with such evidence (see infra, 3). William T. Worster, The Effect of Leaked Information on the Rules of International Law, 28(2) American University International Law Review (2013), 447. Despite the Courts strong rejection of violations of law for the purpose of obtaining evidence, and the reference to a legal standard applicable to international proceedings, the ICJ was not as clear on the consequences that should apply to the evidence itself. Firstly, it has to be legally admissible and, secondly, it has to be epistemologically reliable. The (unconvincing) argument finds that Corfu Channel both establishes a rule of inadmissibility, and against the background that the evidence was still admitted in this case, represents an exception to the rule at the same time. These are: Brazil, Croatia, France, Italy, Russia and Slovakia. [2/2] This program will discuss decisions from NY appellate/trial courts that involved evidence and related trial practice issues. The present comparative study examines 27 national jurisdictions representing all five U.N. Establishing causation in climate litigation: admissibility and For some it is the diplomatic sensitivity of having to reject evidence proffered by a sovereign that warrants evidentiary freedom for courts,20 while others argue that, in international adjudication, the free appreciation of evidence used to establish a fact plays a crucial role more than in the national context.21. Admissibility of digital evidence in court - Lexology Although already in 1949, through its judgment in Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), the International Court of Justice (ICJ) triggered debates on the existence of an exclusionary rule in international law, not much has happened in terms of clarifying applicable rules and principles ever since. California Evidence Code 210, defining relevant evidence in terms of tendency to prove a disputed fact. See Codigo Procesal Civil, Ministerial Resolution No. One that merits special attention is the problem of WikiLeaks documents. 3334. Digital forensic investigation jurisprudence considers the legal system used in a court of law to administer justice in the event of cyber-attacks and cybercrimes. Corte Suprema de Justicia, Recurso de Nulidad No. 257. In my opinion, the cable has as a result lost its inviolability [].88. Eduardo Valencia-Ospina, Evidence before the International Court of Justice, 1 International Law Forum Du Droit International (1999), 205. In countries where remnants of the medieval formal theory of evidence are still preserved, the principle of free evaluation of the evidence by the judge generally dates from the French Revolution. Evidence - Relevance, Admissibility, Proof | Britannica A clear test on unlawfully acquired evidence would signal to states susceptible to abusing their freedom in collecting evidence that as Judge Rosalyn Higgins has emphasized it is time to move away from undue deference to the litigants by virtue of their rank as sovereign states.158. Jingkun Liu, The Exclusionary Rule of Illegal Evidence in China: Theory, Case, Application (2019), 116; Mou Luye, Atomism or Holism: Evidential Evaluation in Chinas Exclusionary Rule of Illegally Obtained Evidence, 5(2) Peking University Law Journal (2017), 361, 362. These factors, in part, also correspond to what international courts and tribunals have considered in their jurisprudence. This article proposes handling unlawfully acquired evidence by applying a defined, yet flexible balancing test using criteria commonly applied in international and national practice.
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