Unconstitutionally Obtained Evidence in Ireland: Protectionism, Deterrence and the Winds of Change
In: (2009) 19(2) Irish Criminal Law Journal 40
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In: (2009) 19(2) Irish Criminal Law Journal 40
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In: (2015) Berkeley Journal of International Law, 33:2, 442-488.
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In: Potchefstroom Electronic Law Journal, Band 15, Heft 5
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In: (2015) 19(4) International Journal of Evidence and Proof 270-280
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In: Law & Society
Ireland as a common law jurisdiction operates an adversarial system. Ireland has a written Constitution, Bunreacht na h-Éireann. Other sources of law include legislation and European Union Law and a doctrine of precedent operates. This paper comprises a discussion of the law of evidence in Irish Civil Procedure. It follows the structure of a questionnaire circulated for the purposes of a comparative study as part of an EU wide project and is repetitive in parts. It was completed between November 2013 and August 2014 and in the interim there have been significant developments in the Irish legal system, most notably the establishment of the Court of Appeal and the Supreme Court decision in D.P.P. v. J.C. [2015] IESC 31, which modified the exclusionary rule concerning unconstitutionally obtained evidence. The primary form of proof in Irish courts is oral evidence. Competent witnesses are generally compellable. Usually testimony, on oath or affirmation, is given viva voce in open court before the Judge and where necessary a jury, and in the presence of the parties. The right to cross-examine is constitutionally guaranteed. In civil cases, the standard of proof is the balance of probabilities. The burden of proof rests on the party which asserts. The principle of audi alteram partem applies. A distinction is drawn between unconstitutionally obtained evidence and illegally obtained evidence. There is pre-trial discovery. Evidence taking by and for foreign courts is discussed.
Ireland as a common law jurisdiction operates an adversarial system. Ireland has a written Constitution, Bunreacht na h-Éireann. Other sources of law include legislation and European Union Law and a doctrine of precedent operates. This paper comprises a discussion of the law of evidence in Irish Civil Procedure. It follows the structure of a questionnaire circulated for the purposes of a comparative study as part of an EU wide project and is repetitive in parts. It was completed between November 2013 and August 2014 and in the interim there have been significant developments in the Irish legal system, most notably the establishment of the Court of Appeal and the Supreme Court decision in D.P.P. v. J.C. [2015] IESC 31, which modified the exclusionary rule concerning unconstitutionally obtained evidence. The primary form of proof in Irish courts is oral evidence. Competent witnesses are generally compellable. Usually testimony, on oath or affirmation, is given viva voce in open court before the Judge and where necessary a jury, and in the presence of the parties. The right to cross-examine is constitutionally guaranteed. In civil cases, the standard of proof is the balance of probabilities. The burden of proof rests on the party which asserts. The principle of audi alteram partem applies. A distinction is drawn between unconstitutionally obtained evidence and illegally obtained evidence. There is pre-trial discovery. Evidence taking by and for foreign courts is discussed.
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In: Virginia Law Review, Band 105, Heft 2019
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Working paper
In: The international & comparative law quarterly: ICLQ, Band 31, Heft 2, S. 392-395
ISSN: 1471-6895
In: SAA (Swiss Arbitration Academy) CAS in arbitration essays series
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In: International & comparative law quarterly: ICLQ, Band 36, Heft 4, S. 680
ISSN: 0020-5893
In: International & comparative law quarterly: ICLQ, Band 43, Heft 2, S. 379
ISSN: 0020-5893
In: International Criminal Justice Series 4
This work deals with the exclusion of illicitly obtained evidence at the International Criminal Court. At the level of domestic law, the so-called exclusionary rule has always been a very prominent topic. The reason for this is that the way a court of law deals with tainted evidence pertains to a key aspect of procedural fairness. It concerns the balancing of the right to a fair trial with the interest of society in effective law enforcement. At the international level, however, the subject has not yet been discussed in detail. The present research intends to fill this gap. It provides an overview of the approaches of a number of domestic legal systems as well as of the approaches of the UN ad hoc tribunals and the European Court of Human Rights and uses the different perspectives to develop a version of the exclusionary rule which fits the International Criminal Court
In: The international & comparative law quarterly: ICLQ, Band 43, Heft 2, S. 379-391
ISSN: 1471-6895
In: The international & comparative law quarterly: ICLQ, Band 36, Heft 3, S. 680-683
ISSN: 1471-6895
In: The Western political quarterly, Band 31, Heft 1, S. 146-146
ISSN: 1938-274X