This study investigates the interface between science and law with reference to models of science described by members of New Zealand's Environment Court. The aim of the research is to identify differences and consistencies between the members of the Court in the way that they articulate their understanding of science and of scientific evidence. This research also aims to locate those individual models of science within a wider philosophical discourse concerning the nature of science. The research adopts a qualitative and interpretive approach that focuses on understanding the detail of contextual interactions arising from interviews with eight Environment Judges and 13 Commissioners. The interview group comprised all of the judges of the Court during the research period (1999 - 2000) and all but one permanent Commissioner. The analysis of interviews show a wide range of views concerning the scope and nature of science. Criteria significant to each individual's model of science have been identified as a series of micro themes. Those micro themes differ between individuals as to the combinations of criteria significant when locating the boundary between science and non-science. The analysis of interviews also identifies three macro themes that describe whether and how individuals differentiate science, technology and expertise. That analysis identifies a group of interviewees, comprising both judges and commissioners, that equates science with expertise without distinction as to any knowledge component or process considerations. The analysis of interview responses adopts a boundary-work approach that identifies how individuals locate the boundary between science and non-science through their articulation of the micro themes significant to their model of science. The study contributes to the discourse concerning the relationship of science and law within modern society. That discourse commonly addresses the appropriate legal framework to assess questions involving scientific expertise and invariably describes the legal process and the role of expert and decision maker within that process. However, that discourse rarely articulates the meaning of the terms science, scientist, or technology, assuming that science is a self-evident concept, its meaning having universal application and acceptance. This research challenges that approach and identifies wide differences in the models of science held by individual decision makers and differences in their expectations of evidence from expert witnesses. Aside from the implications of the research results for the discourse concerning the relationship of science and law, this research also has practical implications for the evaluation of expert scientific evidence within an adversarial system of law, and for expert evidence before the Environment Court. Suggestions to improve communication both within the Court and between the Court and parties appearing before it are made with a view to identifying consistent and fair expectations of experts and their evidence.

A propriedade intelectual tem merecido destaque nas discussões atuais, trazendo à reflexão as considerações sobre o que efetivamente pode-se considerar propriedade intelectual e científica, pelo destacado valor que se dá ao texto como registro de idéias e de organização do pensamento, bem como meio de difusão dos saberes produzido. O que aqui se propõe é refletir, com base na legislação brasileira, sobre o que efetivamente pode-se considerar como resultado do esforço intelectual de um pesquisador ou produtor, na área da ciência, mais precisamente no âmbito da Odontologia e o que constitui dados do paciente. O prontuário odontológico tem o domínio pertencente ao paciente, como estabelece o Código de Ética Odontológica (2013). No entanto, por expressar o conhecimento do profissional, suas conclusões, e meio de prova em eventuais demandas judiciais, esse registro é fundamental para a construção de um diálogo entre os diversos produtores do conhecimento e seus destinatários. Por ter uma função social, como preconizado pela Constituição Federal do Brasil, é preciso que a Sociedade tenha acesso às descobertas científicas e à produção dos Cirurgiões-Dentistas, sem que suas idéias permaneçam trancadas em arquivos. Exige-se, na atualidade, que seja destacada a parte que compõe o registro de dados pessoais do paciente, e aquilo que é registro do profissional e construção intelectual deste, evitando-se assim que a criação e produção intelectiva do profissional estejam na propriedade de outrem e não do seu criador. / Intellectual property has been featured in the current discussions, bringing to reflection about what considerations effectively can be considered scientific and intellectual property, by the highlighted value that gives the text as a record of ideas and organization of thought as well as a means of disseminating the knowledge produced. What is proposed here is to reflect, on the basis of the Brazilian legislation, about what actually can be considered as a result of intellectual effort of a researcher or producer, in the area of science, more precisely in the context of dentistry and what constitutes patient data. However, by expressing the professional knowledge, their conclusions and evidence in any litigation, this record is fundamental to the construction of a dialogue between the various producers of knowledge and their recipients. To have a social function, as advocated by the Federal Constitution of Brazil, the society has access to scientific discoveries and the production of dentists, without which his ideas remain locked in archives. If required, at the present time, which highlighted the part that composes the personal data of the patient record, and that record of professional and intellectual construction of this to avoid that the creation and production of intellective property of others are professional and not its creator.

Legal rules and regulations, which are engaged in forensic engineering including expert evidence’s requirements, are because of the difference of this sphere very universal and common. Due to this situation, legal orders and regulations can not standardize and harmonize expert procedures for particular branches or their specific parts. The Dissertation thesis is focused on a elaboration of the methodology procedure for expert evidence’s elaborations, which analyze defects and imperfections in new-built flats.

This thesis deals with the issue of causation in disputes relating to compensation of damage to health. The aim of this work is to give a comprehensive interpretation of this issue. The work presents possible approaches of proving a causality between illegal misconduct during treatment and the damage caused to a patient. In medico-legal disputes patient must carry the burden of proof. It also compares the European legislation in relation to the necessary degree of proof with the main focus on German legislation and institutes created by the case law of German courts. Furthermore it presents the interpretation of causality in terms of the Principles of European Tort Law. The work deals marginally with certain aspects of proceedings concerning compensation of damage to health and expert assessment.

The ability of jurors and juries to comprehend and utilise scientific evidence in Australian criminal trials has been examined. From mock jury surveys relating to DNA profiling evidence, it was determined that most respondents were able to comprehend some basic and applied statistics, although their ability was in part related to their knowledge of English and their level of education. The point at which mock jurors were prepared to convict an accused solely on the basis of DNA profiling evidence was examined and found to be low compared with the strength of DNA profiling evidence commonly presented in Australian courts. Mock jurors also demonstrated the ability to process evidence that was presented in a Bayesian framework; commencing with prior odds, introducing new information and culminating in posterior odds. From a survey of Australian forensic scientists, including fraud investigators, it was found that most practitioners' concerns could be addressed by greater pre-trial consultation between experts and legal advocates. Improved knowledge within the legal profession concerning the jargon, principles, procedures, limitations and conclusions to be drawn from different scientific disciplines, prior to presenting this evidence in court, is recommended as the means by which complex evidence can be better adduced from expert witnesses and better presented to juries in criminal trials. Finally, from interviewing actual jurors in criminal trials in the Australian Capital Territory it was determined that where jurors' expectations of scientific evidence, particularly DNA profiling evidence, are not met, high levels of juror frustration and speculation may culminate in hung juries. The adversarial setting of criminal proceedings was also found to produce an environment in which jurors felt that information that would assist them in reaching a verdict was being deliberately withheld. The ability of the jury to ask questions and the allowed nature of those questions were also examined, with the resultant recommendation that juries be given more explicit information at the commencement of trials to inform them about their rights and obligations when asking questions.

The current study addresses the fundamental role of expert evidence advanced in support of the defence of criminal incapacity. It was endeavoured to illustrate that the scientific entities of forensic psychiatry and psychology fulfil an essential and pivotal role in establishing and assessing the defence of criminal incapacity. The study proposed to illustrate the interaction between the professions of law and medicine on the backdrop of the defence of criminal incapacity. Recommendations were provided with the aim of enhancing the dialogue between the professions of law and medicine when the defence of criminal incapacity falls to be assessed. The study was approached from a dual dimensional perspective illustrating both the need for mental health experts as well as the need for adequately trained and experienced mental health experts to provide expert testimony as to an accused’s mental state when the defence of criminal incapacity is raised. The motivation for the current study is enumerated and the concepts of “criminal capacity”, “non-pathological criminal incapacity”, “pathological criminal incapacity” and “expert evidence” are, amongst others, conceptualized. It is indicated that expert evidence plays an essential role not only in cases where pathological criminal incapacity, or put differently, criminal incapacity attributable to mental illness or mental defect is raised, but also in instances where non-pathological criminal incapacity is raised as a defence. The role of the mental health expert is addressed with reference to battered woman syndrome evidence advanced in support of the defence of non-pathological criminal incapacity. It is illustrated that the defence of non-pathological criminal incapacity is in need of reform. It is in addition illustrated that legislative reform is essential to establish the defence of non-pathological criminal incapacity and to create legal certainty. The inconsistent approach in the application of expert evidence to the defence of criminal incapacity is emphasized with specific focus on the semantic distinction between the defences of non-pathological criminal incapacity and pathological criminal incapacity. The role and application of the DSM-IV in the definition and assessment of mental disorders is addressed in conjunction with the various obstacles associated with the application of the DSM-IV to the defence of criminal incapacity. The nature and scope of the basic rules of expert evidence as they would apply to mental health professionals acting as expert witnesses in support of the defence of criminal incapacity are addressed. The assessment of the probative value of expert evidence is addressed and the complexities associated therewith are espoused. The numerous ethical dilemmas faced by mental health experts are illustrated and recommendations are provided aimed at eliminating these dilemmas. A comparative study of selected principles pertaining to expert evidence in the United States of America is embarked upon to illustrate the need for a codification of the rules of expert evidence as well as effective guidelines aimed at enhancing the scientific reliability and validity of expert evidence advanced in support of the defence of criminal incapacity. Finally, conclusions are drawn and motivated recommendations are made. Law reform is proposed in the form of draft proposals for legislative reform in respect of the defence of criminal incapacity as well as a draft ethical code of conduct for mental health experts providing expert testimony in cases where the defence of criminal incapacity is raised. / Thesis (LLD)--University of Pretoria, 2011. / Public Law / unrestricted

The purpose of this thesis is to map the situation in the field of business and property valuation in the Czech Republic. The goal is to detect the most common deficiencies in processing of expert evidence. By analyzing sufficient amounts of expert evidence, the quality is evaluated by using appropriate criteria in context with the valuation regulations and national and international standards. Evaluation criterias are focused mainly on those parts of the evidence, which are crucial for the outcome of the expert evidence.

The South Africa criminal law allows the battered woman to raise a battered woman syndrome defence in the context of non-pathological criminal incapacity. However, there is a need of expert evidence to support such defence for it to succeed in the court of law. Hence, this paper scrutinizes the task of expert evidence in support of the battered woman syndrome in order to reach the extent of its effectiveness. Nevertheless, such evidence is not indispensable but without it, the court hardly gets persuaded resulting into the failure of the defence. The meaning of battered woman syndrome is articulated in the paper as well as the fact that battered woman syndrome defence falls under the defence of non-pathological criminal incapacity. The origin and development of the non-pathological criminal incapacity has also been discussed by comparing it with pathological criminal incapacity which emanates from mental illness while the former does not originate from a mental illness. Psychiatrist are in a better position to understand the latter while psychologists are in a better position to understand the former, hence it is advisable if the court pays more attention or attach more weight to the evidence given by the psychologists if this defence is to succeed and have a brilliant future. Moreover, the possible defences available to the battered woman have been mentioned as well as the cases that used non-pathological criminal incapacity as a defence particularly with regard to the battered woman syndrome defence. Both cases that were successful and unsuccessful have been elaborated. However, the cases that failed with the defence are in large numbers than the successful ones. Although expert evidence is essential to support the battered woman syndrome defence, it is unjustly and unfairly applied on the battered woman who is an accused person in the court leading to the failure of the defence .In short the use of expert evidence has failed in its application as the two professions, law and medicine has failed to make this defence work as they have not reached an agreement concerning the battered woman syndrome defence. In addition, the paper looks at the obstacles linked with the battered woman syndrome defence as well as offering suggestions to be put in place in order to make the use of expert evidence achievable. This can only be done if both the lawyers and mental health professionals come to terms with each other where they are able to understand the battered woman syndrome and the actions which led to the situation where battered woman finds herself as an accused person. Finally, the paper concludes that expert evidence has failed tremendously in its application leading to the failure of the battered woman syndrome defence in the context of non-pathological criminal incapacity. Consequently a lot still needs to be done to protect the women who face numerous obstacles; both personal and legal as they do not face justice in court and everyone must take part to put an end to battering of women which is inhuman and morally wrong. / Dissertation (LLM)--University of Pretoria, 2012. / Public Law / unrestricted

Made available in DSpace on 2016-04-26T20:21:07Z (GMT). No. of bitstreams: 1 Maira Ceschin Nicolau.pdf: 651901 bytes, checksum: 0b5d59c4aa7d6d40dbb603c6561cd398 (MD5) Previous issue date: 2012-08-24 / The present study aims to analyze aspects of expert evidence and its peculiarities in the process of work, especially when it comes to production and value. In general, all chapters tackle the idea of the research developed over the work. The first chapter discusses the concept and development of systems of evaluation of evidence, particularly the current ruling system: a system of rational persuasion or conviction self motivated. In the second chapter, before entering the concepts inherent in the expert evidence, attempts to trace the concepts of the general theory of testing (concept, object, purpose), to later study of expert evidence, with its concepts and meanings. Species and classification of expert evidence are discussed in chapter three and four, respectively. The fifth chapter examines the actions and procedures involving the execution of a skill, with emphasis on issues related to the time of production of expert evidence, denial and rejection of expert evidence and the expert report. In the sixth chapter, we discuss the question of determinant power experts evidence in court. The seventh and final chapter, on the basis of the entire approach taken in the previous chapters and regulation based on legal, doctrinal teachings and jurisprudence, is exactly the problems and situations involving the need or no experience and also transported, faces questioning over whether or not the judge bound by its outcome, concluding at the end that in the case of the technical evidence, the conclusion obtained by performing the same force the judge / O presente estudo tem por objetivo analisar os aspectos inerentes à prova pericial e suas peculiaridades no processo do trabalho, principalmente quando se trata de sua produção e valoração. De modo geral, todos os capítulos buscam sedimentar a ideia central da pesquisa desenvolvida ao longo do trabalho. O primeiro capítulo aborda a noção e evolução dos sistemas de apreciação da prova, com destaque para o sistema atual vigente: sistema da persuasão racional ou do livre convencimento motivado. O segundo capítulo, antes de adentrar aos conceitos inerentes à prova pericial, busca traçar noções sobre a teoria geral da prova (conceito, objeto, finalidade), para após se aprofundar no estudo da prova pericial, com seus conceitos e significados. As espécies e classificação da prova pericial são analisadas no terceiro e quarto capítulo, respectivamente. O quinto capítulo estuda os atos e procedimentos que envolvem a realização de uma perícia, com destaque para questões que envolvem o momento da produção da prova pericial, o indeferimento e dispensa da prova pericial e, ainda, o laudo pericial. No sexto capítulo, é abordada a questão do poder instrutório do juiz na prova pericial. O sétimo e último capítulo, com base em toda a abordagem feita nos capítulos anteriores, bem como com base no regramento legal, nos ensinamentos doutrinários e na jurisprudência, trata exatamente das questões e situações que envolvem a necessidade ou não da perícia e, ainda, em sendo esta realizada, enfrenta o questionamento relativo a estar ou não o julgador vinculado ao seu resultado, concluindo, ao final, que, por se tratar de prova técnica, à conclusão obtida através da realização da mesma deve o juiz se vincular

Este trabalho aborda a utilização da prova pericial no DNA para fins de tutela do direito à identidade genética e identifica a possibilidade de determjnação da condução coercitiva do réu na hipótese de recusa deste em se submeter à prova pericial no DNA, quando o objeto desta prova é a determinação do vínculo biológico, a partir da aplicação do princípio da dignidade da pessoa humana, do critério da ponderação de interesses em face de colisão de direitos fundamentais, do princípio da proporcionalidade, do abuso de direito, do princípio da colaboração e do dever de verdade, como fundamentos do direito processual civil contemporâneo. A metodologia adotada é a explicativa, com base em levantamento bibliográfico, jurisprudencial e da legislação vigente. A conclusão aponta para a possibilidade de realização da prova pericial no DNA independentemente da anuência do réu, quando o objeto da prova é a determinação do vínculo biológico entre as partes, reconhecendo o direito à identidade genética corno um direito fundamental implícito