We are thrilled to introduce our performers for the future seminar entitled 'Evidentiary Procedure in Civil Law and Common Law Systems – Challenges and Pitfalls' which will take place on September 27th.
The upcoming Seminar on the 27th of September will discuss the evidentiary procedure in Civil Law and Common Law systems, their challenges and pitfalls. Although the evidentiary procedures constitute a broad research topic, our Performers have selected four intriguing subjects. The first presentation by Dr. Łukasz Cora will focus on the mechanism for the verification of evidentiary actions. Then, Ph.D. Candidate Toma will present the Italian approaches to the evidentiary system and its borders in connection with the declaration of the most suitable approach towards the inadmissibility of illegally collected evidence in criminal proceedings. The third presentation by Ph.D. Candidate Marcin Galiński will refer to the important – yet not widely discussed – the issue of the usage of deepfake technology. Finally, Ph.D. Candidate Eduardo Bolsoni Riboli will present an analysis of the Portuguese use of spy software in criminal investigations. We would like to encourage you to read the Performers’ abstracts provided below and prepare the questions referring to the papers.
Łukasz Cora, Ph.D., University of Gdańsk
The Mechanism for the Verification of Evidentiary Actions. Towards Enhancing the Fairness of Evidentiary Proceedings?
This paper undertakes an analysis of the verification of evidentiary acts carried out in a criminal trial in the aspect of their: purposefulness, legitimacy, proportionality, and correctness. It aims to determine which elements are subject to gradation from the point of view of procedural values, the assessment of their influence on the fairness of evidentiary proceedings, and the possibility of adopting given solutions from the legal culture of common law countries to increase the efficiency and guarantees of the assessment of the evidence in the Polish criminal trial. Dr. Cora will discuss crucial elements of verification of evidentiary acts as a mechanism aimed at reducing the threats to the fairness of evidentiary proceedings - e.g., the abuse of the evidence law or illegal obtaining of evidence at the pre-trial stage. Finally, the Author will attempt to define rational and fair criteria for evaluating evidentiary actions and the evidence obtained from them, as well as the procedure for deciding on the admissibility of the use of evidence in a criminal trial. What is crucial for the analyzed mechanism of verification of evidentiary actions is not only why - but most importantly - how it is declared inadmissible, i.e., upon which procedural and axio-normative criteria such decision is made.
Emanuele Toma, Ph.D. Candidate, Sapienza University of Rome
The Evidence and its Pathologies: New Approaches in the Italian Legal System?
This presentation will focus on evidentiary rules and defects in a civil law system (specifically the Italian one). The paper will highlight how the absence of relevant legislation affects evidence pathology compared to the common law systems.
The author will shortly analyze how the evidence works in Italian criminal proceedings. Then, the presentation will tackle the notion of “inutilizzabilità” - a very peculiar form of a flaw that can affect the evidence in Italian criminal proceedings and occurs when a specific prohibition is not complied with. That is, under Article 191 of the Italian Code of Criminal Procedure, a piece of evidence is null when it is obtained in violation of an evidentiary prohibition stated by the law. These legal shapes led to establishing the “male captum bene retentum” principle - a very strict way to assess the “non-usability”. Because of this, it is very difficult to protect fundamental rights when there is no specific procedure for evidence collection, which often happens with the progress of technology since Italy does not apply a principle of legal certainty to evidence. On the other hand, the “fruit of the poisonous tree” doctrine rules followed by most of the common law systems nowadays gain more and more supporters in Italy due to its more flexible approach.
Marcin Galiński, Ph.D. Candidate, University of Szczecin
Deepfake Technology as a Threat and Challenge to Evidentiary Proceedings.
Deepfake technology is a set of algorithms allowing the creation of ultra-realistic fake films in which people talk and do things that have not happened in objective reality. So, deepfake leads to blurring the lines between truth and lie because that makes it difficult to distinguish what is true, and what is a lie. Mentioned technology has an impact on legal proceedings as well (especially on evidentiary proceedings). Deepfakes are questioning the assumption of video recordings' full credibility as a means of proof. Because of using a technology such as deepfake, video recording becomes fabricated, so they cannot fully illustrate a past occurrence which is the issue of the proceedings. Parties, other participants, or even another person prima facie not connected with a particular case can use deepfakes to create a false picture of reality in the minds of judges, juries, or other competent organs, which will lead to passing an injustice and counter-factual verdict. Thus, a deepfake creates a real danger to the credibility of legal proceedings and is a challenge for judges, other lawyers, officials or scientists, and researchers. This paper aims to begin a discussion regarding deepfake’s impact on legal procedures by indicating possible ways and reasons for using that technology in evidentiary proceedings and the possible forms of counteractions.
Eduardo Bolsoni Riboli, Ph.D. Candidate, University of Lisbon
The Use of Spy Software as a Method of Criminal Investigation in Portugal.
This paper refers to the new challenges imposed by anti-forensic measures on law enforcement and other legal authorities during criminal investigations. As a means to circumvent these difficulties, Portugal (and many countries around the world) are starting to use/increase the usage of spy software as a means of obtaining evidence in criminal procedures. The use of spy software constitutes a hidden method of investigation in Portuguese law, which is the most severe method of investigating in its legal system. The wide range of functions it can perform makes the spy software one of the most damaging investigation methods currently available in Portugal since it can violate multiple fundamental rights of the person under investigation (in real time, event) - a characteristic that demands detailed regulation. Portugal has legislation on the matter, but it comes short in many ways, especially when it comes to the protection of the fundamental/human rights of the person(s) under investigation (and of others in contact with them). This poses serious threats and raises many issues with fundamental/human rights, the integrity of the investigation and the criminal proceeding, and the Portuguese legal system.
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