Fact-finding Flashcards
(39 cards)
What is Scottish legal system tradition
Rationalist
What is the rationalist tradition
Enlightenment theory that everyone can understand the world by employing human reason
How has the rationalist tradition developed in Scotland
Adversarial system
Features of an adversarial system
Two competing parties who present evidence to a trier of law and a trier of fact, who use their reason to come to an appropriate conclusion
Adversarial model
Witness observes event
Court observes witness
Public observes court decision
Two barriers to reliable and accurate fact-finding
Witness testimony
ToF ability to fairly evaluate the witness
Role of a witness in adversarial system
Give oral evidence of what they observed. Gold standard of evidence in Scots law
What does their oral testimony rely on
Memory of the event
Short-term, but more often long-term
Two elements of long-term memory
Episode and semantics
What is episodic memory
The picture of what actually happened
What is semantic memory
Memory of how the world works e.g., myths and societal beliefs
How does semantic memory inhibit witness testimony
Long term memory fades
Therefore, when the episodic memory is blurry, the witness subconsciously replaces it with semantics and makes assumptions
What else impacts the reliability of witness testimony
Cognitive biases
Emotional factors
Commitment effect
What are cognitive biases
Bias held by the witness that impacts how they process information - this is an immediate interpretation issue
Cognitive bias example
Cultural bias
Allport and Postman 1947 study - white people shown situation where white man holding knife to black man. Still identified black man as the aggressor
What are emotional factors
Trauma from the event and condition during the trial
How do emotional factors impact memory
Trauma can affect memory retrieval and encoding, as witnesses are reluctant to keep re-living the horrible moment
Trial condition - anxious witnesses are more likely to remember the situation in a bad light
What is commitment effect
Whatever version of the story the witness attests to first, regardless of its truth, becomes absolute in their mind
Effect of commitment effect
Witness becomes less reliable, as they stick to fallacious beliefs
How are psychological witness factors countered
Opinion evidence prohibition
Corroboration
Opinion evidence prohibition
General prohibition on the admissibility of opinion evidence, except experts. Means that witnesses must attest to facts only, not their opinion. Cognitive biases can still skew these facts, but has some effect.
Corroboration
Every crucial fact must be proved by two separate pieces of evidence. Means that one witnesses interpretation is not enough, and their personal biases do not decide the entire trial
However, Little v HMA and LAR have made this less of a requirement. Similarly, widespread call for reform - such as Carloway report 2011
How else could psychological factors be countered
Pre-recorded evidence
Witness education
What is the role of the ToF
To hear presented evidence and come to a rational conclusion based on it
