Redressing miscarriages of justice : practice and procedure in (international) criminal cases / by Geert-Jan Alexander Knoops.
2013
K5560 .K59 2013 (Map It)
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Details
Title
Redressing miscarriages of justice : practice and procedure in (international) criminal cases / by Geert-Jan Alexander Knoops.
Published
Leiden : Martinus Nijhoff Publishers, 2013.
Call Number
K5560 .K59 2013
Edition
Second revised edition.
ISBN
9789004252837 (hbk. : alk. paper)
9004252835 (hbk. : alk. paper)
9789004255746 (e-book)
9004255745 (e-book)
9004252835 (hbk. : alk. paper)
9789004255746 (e-book)
9004255745 (e-book)
Description
xvi, 229 pages ; 24 cm.
System Control No.
(OCoLC)843037560
Bibliography, etc. Note
Includes bibliographical references (pages [217]-222) and index.
Record Appears in
Table of Contents
Preface
xi
About the Author
xiii
List of Abbreviations
xv
1.
The Need for Effective Retrial Procedures in (International) Criminal Cases
1
A.
Wrongful Convictions and their Interrelationship with the Nature of the Criminal Justice System
1
B.
Effective Retrial or Review Procedures: Protection of the Integrity of Criminal Trials
2
2.
Protection Against Miscarriages of Justice Within (International) Criminal Law: An Erga Omnes Obligation
5
A.
Introduction: The Applicability of the Doctrine of State Responsibilities Erga Omnes
5
B.
The Genesis of the Erga Omnes Doctrine: The U.S. Innocence Protection Act
8
C.
State Responsibilities vis-à-vis the Protection against Miscarriage of Justice: The ILC Articles on State Responsibility
11
3.
Causes and Predisposing Factors of Miscarriages of Justice: A Legal Overview
15
A.
Clear and Present Dangers
15
4.
Miscarriages of Justice Originating from Disclosure Deficiencies in Criminal Cases
21
A.
Disclosure Failures as Ground for Retrials: Common Law Standards and Examples
21
1.
Disclosure Requirements Set Forth by the U.S. Supreme Court.
22
2.
Basic Disclosure Conditions Under U.K. Law
23
3.
The Legal Scope of Disclosure Obligations
25
B.
Legal Consequences of Errors in Disclosure Obligations in Criminal Cases: R. v. Ward
26
C.
Judicial Relationship between Disclosure of Evidence and Miscarriages of Justice
29
D.
Judicial and Legal-Ethical Implications of (Non-)Disclosure of Forensic Evidence for Miscarriages of Justice
30
E.
Practical Implications of (Non-)Disclosure of Forensic Evidence for Miscarriages of Justice: The Principle of Equality of Arms
32
F.
Disclosure Obligation Standards
33
1.
. General Guidelines
33
2.
Attribution of Non-Disclosure by Police and Scientists to the Crown
33
3.
"Reasonable Probability Test" as Ground for Retrial
34
G.
Disclosure Obligations Under ECHR Case Law Relevant to Protection Against Miscarriages of Justice
34
1.
Competing Interests: Protection of Society versus Protection of Individuals
34
2.
ECHR Disclosure Criteria and Their Transposition onto Retrial Proceedings in Criminal Cases
35
F.
Disclosure Obligations Under Case Law of International Criminal Tribunals
37
5.
Miscarriages of Justice Originating from False or Unreliable Confessions and Plea Agreements
41
A.
Introduction
41
B.
The Role of False Confessions in (International) Criminal Cases
42
1.
Procedural Issues Pertaining to False Confessions
42
2.
Predisposing Factors Pertaining to False Confessions
43
C.
Retrial Grounds Relative to False Confessions in Criminal Cases
46
1.
False Confessions: Basis for Retrial?
46
2.
The Importance of Disclosure of Forensic Evidence for the Determination of False Confessions: R. v. Ward.
49
3.
The Admissibility of Evidence of Psychiatrists and Psychologists as to an Accused's Reliability 5o
D.
Involuntary Statements Within International Criminal Proceedings: Retrial Consequences
52
1.
Judicial Supervision of (In)Voluntariness of Accused's Statements
52
2.
Procedural Safeguards to Prevent Involuntary Statements
55
E.
Unsafe Guilty Pleas in Criminal Cases: Retrial Ground on the Basis of Investigative Misconduct
58
F.
Alford Pleas Instead of Risking a New Trial
58
G.
Conclusion
59
6.
Miscarriages of Justice Originating from Unsafe Identification Evidence in Criminal Cases
61
A.
The Fallibility of 'Human Perception and Recollection': Identification Standards of International Tribunals
61
B.
Retrial Standards within Common Law
63
C.
Retrial Standards Based on Identification Evidence in (International) Criminal Cases
64
D.
Prevention of Unsafe Convictions Due to Identification Evidence in (International) Criminal Cases
66
E.
Prevention of Unsafe Convictions Due to Identification Evidence in the U.S
70
F.
Conclusions
76
7.
Retrial Standards and Procedures before National for a and Contemporary International Criminal Tribunals
79
A.
Introduction
79
B.
Judicial Review Based on 'New' Evidence
79
1.
The Approach of the U.S. Supreme Court
79
2.
The Approach of U.K. Courts and the British Criminal Cases Review Commission (CCRC)
80
3.
The Approach of the Dutch Supreme Court
89
4.
Retrial Standards before the International Criminal Tribunals
91
C.
The Determination and Standard of 'New Evidence' in Criminal Cases: Toward a Uniform Model
96
D.
Judicial Review Based on 'New' Defenses or Arguments
97
8.
Forensic Sciences: Trial and Retrial Standards to Protect Against and Remedy Miscarriages of Justice
103
A.
Introduction: The Evolution of Forensic Genetics in Criminal Cases
103
B.
The Advent of Forensic Genetics in the Context of Reopening (International) Criminal Cases
104
1.
Increasing DNA Exonerations
104
2.
Technical Evolution of Forensic Genetics
105
3.
Practical Problems and Complications of Assessing the Evidentiary Weight of DNA Evidence
111
C.
Forensic Evidence Standards to Prevent Miscarriages of Justice in Criminal Trials
114
1.
Introduction
114
2.
Forensic Science Errors in the Diagnosis of Guilt or Innocence in Criminal Cases
114
D.
Scientific Error: A Potential Retrial Argument
119
E.
Forensic Standards and Principles to be Applied by National and International Criminal Courts: The Approach of the U.S. Supreme Court
124
F.
New and Changing Expert Evidence: Basis for Retrials in (International) Criminal Cases?
129
G.
The Right to Hear and Challenge Defense Expert Witnesses under the ECHR
130
H.
Toward a Legal Standard to Review Forensic or Expert Witness Evidence in Criminal Cases
132
9.
Expert Evidence Requirements and Standards within (International) Criminal Cases
135
A.
Introduction
135
B.
General Principles Pertaining to Adducing Expert Witness Evidence
136
1.
Purpose of and Requirements as to Expert Witness Qualifications
136
2.
The 'Ultimate Issue' Rule Within the Practice of International Criminal Tribunals
139
3.
The Applicability Scope of the Ultimate Issue Rule Under International Criminal Law: Individual Criminal Responsibility
145
C.
Conclusion: The Ultimate Issue as an Instrument in the Protection against Miscarriages of Justice
148
10.
Procedural Mechanisms Sui Generis Against Miscarriages of Justice
151
A.
Balancing the Prevention of Wrongful Conviction: Judicial Economy and Equality of Arms within International and Internationalized Criminal Trials
151
1.
Introduction: Converging Objectives before International Criminal Tribunals
151
2.
Ensuring Equality of Arms on The International Plane: Defense Scope and Limitations
152
3.
Concurrence of Equality of Arms and Judicial Economy in the Law Practice of the International Criminal Tribunals
154
4.
Equality of Arms vis-a-vis Investigation and Documentary Evidence
164
5.
Pitfalls and Dangers of Judicial Economy within International Trials
170
6.
Equality of Arms before International and Internationalized Courts: A Structural Inequality?
171
7.
Conclusions: Safeguard against Politically Motivated Application of Judicial Economy and Wrongful Convictions
172
B.
The Abuse of Process Doctrine in International Law: A Prospective Remedy to Protect Against Miscarriages of Justice
173
1.
Introduction
173
2.
The Abuse of Process in the Practice of International Criminal Courts and Tribunals
174
3.
The Abuse of Process Doctrine in Relation to Miscarriages of Justice in (International) Criminal Law Practice
180
4.
Conclusions
182
C.
Cross-Examination Instead of Written Evidence in International Criminal Cases as Protection Against Miscarriages of Justice: The ICTY Example
183
D.
The Admissibility of Hearsay Evidence
185
E.
Contemporary International Law Developments on Redressing Miscarriages of Justice
186
11.
Defence Strategies to Prevent and Remedy Miscarriages of Justice
191
A.
Introduction
191
B.
Recent Developments in Science and Defense Strategies
193
1.
Introduction
193
2.
Examining the Totality of Evidence
193
3.
Conclusions
202
C.
Retrial: Challenging Forensic Reports in the Deventer Murder Case
203
D.
Conclusion
204
12.
Recommendations and Future Guidelines as to the Protection against Miscarriages of Justice
205
A.
Toward a Uniform System of Judicial Supervision of Miscarriages of Justice
205
1.
Disclosure as Principal Procedural Remedy
205
2.
Future Protection against Miscarriages of Justice: Enhancing Judicial Supervision on Prosecutorial Conduct
206
3.
Proper and Timely Engagement of Expert Witnesses
209
4.
Minimizing the Inherent Risks in Forensic Evidence: Proactive Tasks for Defense Lawyers
211
5.
Statutory Obligation to Preserve Forensic Data
211
6.
Statutory Obligation as to Recording Police Interviews
212
7.
Improvement in Police Training and Awareness
213
8.
Refining the Laws on Review of (International) Criminal Cases: A Uniform Provision
214
B.
Concluding Recommendation: The Protection against Miscarriages of Justice as an Erga Omnes Obligation
215
Table of Authorities
217
Table of Cases
223
Index
227