Challenges in developing this Case Digest on evidential matters

civil law systems, evidence gathering can extend to the period during the trial process, as the judge is the main evidence gatherer; and whereas common law systems rely on a system of precedents to maintain uniformity, civil law jurisdictions do not view precedents as conclusive. 12 This complexity is heightened by the existence of mixed systems, which espouse elements of common law and civil law, as, for example, those in Finland, Japan or the Philippines. These differences may limit what one system can learn from another. Thus, if a victim is too fearful to testify, a solution espoused by a civil law jurisdiction, whereby written statements are admissible instead of testimony, might be unacceptable in a common law system unless it conforms to an accepted evidentiary exception. 13 By the same token, a solution adopted by a civil law system, whereby the judge may undertake the questioning of a fearful witness himself in order to encourage him or her to be more cooperative—might be unacceptable in a common law system. On the other hand, the creative solution of a common law court in order to admit hearsay evidence may be wholly unnecessary in a civil law court in which the judge may freely evaluate evidence. Common law and civil law systems are not the only cohesive systems of law worldwide. Further examples can be found in countries which adopt religious laws or recognize certain forms of customary law. 14 National systems may also differ in the adjudicative apparatus they choose, with some jurisdictions relegating this to a judge, whereas others rely upon a jury to rule on facts while the judge gives the jury instructions on law. This too may impact upon evidential issues and especially in jurisdictions which require the jury verdict to be unanimous. Juries may also be more reluctant to convict in cases where victims do not testify, even if the relevant law allows this. National systems may also vary in their approaches towards international conventions, with “monistic systems” incorporating provisions of ratiied conventions directly without the need for further national legislation and “dualistic systems” necessitating further national legislation even after ratiication. 15 Despite these obstacles, as mentioned before, the common normative framework provided by the Traficking i n P ersons P rotocol a ims t o a ssist S tates t o b ridge a t l east s ome o f t he gaps among them by providing uniied t erminology a nd c oncepts. I n a ddition, a t l east i n regard to civil and common law systems, there seems to be a broad consensus that with time, there has been a convergence between them, along with the development of mixed systems with elements of each. 16 Thus, a hermetically sealed distinction between the systems is not grounded in reality. For example, while civil law systems do not ascribe conclusive force to precedent, judges and lawyers still use other cases in order to support their claims; while civil law systems do not exclude hearsay testimony, its weaknesses may be taken into account by the judge in evaluating its weight. In addition, clearly, learning can take place 12 See Lundmark, Charting the Divide between Common and Civil Law Oxford University Press, 2012 and Capowski, “China’s Evidentiary and Procedural Reforms, the Federal Rules of Evidence and the Harmonization of Civil and Common Law”, 47 Texas International Law Journal 2012, 455, 459-466. 13 Mixed systems like Kenya may allow admission of witness statements according to the Kenyan Criminal Procedure Code sections 154 and 156, in conjunction with section 34 of the Evidence Act. 14 An example is Nigeria, which in addition to common law, civil law and sharia law, includes as a source, customary law, which is derived from indigenous traditional norms and practice, including dispute resolution meetings. See: http:elearning.trree.orgmodpageview.php?id=142. 15 This contrast is less clear than it appears to be, as even in monistic systems details may need to be illed in by legislation. 16 See Lundmark, ibid. p. 37. regarding patterns found in certain kinds of evidence across jurisdictions. Finally, some of the solutions courts have found to address weaknesses in the evidentiary foundation of a case can conform to different legal systems. Another limitation sometimes found, is that in many court systems evidentiary issues and decisions are not part of the written decision of the court. Moreover, even when cases do mention evidential matters, the analysis may be short, without an extensive discussion of evidential issues. In addition, in States with a jury system, there may be no recorded judg- ments in courts of irst instance, so that only if the case is appealed, will there be a written and publicized judgment. In these cases, the appeal may be on a narrow issue, so that while certain evidence may be mentioned, we do not always know how important it was in the irst instance’s original ruling. Nor do we always know the full array of evidence in the case. However, even in cases that do not have formal and direct evidential rulings, a description of the kinds of evidence submitted and the types of issues addressed may give valuable information to practitioners. Complete case decisions were not always available for the cases discussed in this Case Digest. Thus while analysis is based on full decisions when available, in some cases we relied on entries in the UNODC Human Traficking Case Law Database and expert summaries and analysis provided for the purposes of this Case Digest, though an attempt was made to focus on full cases. In order to appraise practitioners of the nature of the source material, when it is not a full decision this is mentioned in a footnote. In addition, we are careful to mention how the court used certain pieces of evidence and when there is a doubt, we note it.

1.4 The methodology of case analysis

Analysis of evidential issues in case law is characterized by complexity. Explicit rulings on evidential issues are usually handed down in courts of irst instance, rather than courts of appeals whose holdings are more commonly published. The limited accessibility to holdings of courts of irst instance impacts on the breadth of court rulings upon which we can rely. In addition, some of the verdicts in the cases were terse and did not include an explicit analysis of evidential issues or even an explicit reliance on the various pieces of evidence mentioned. However, it was felt that even these cases may still be of value to practitioners if they include descriptions of typical forms of evidence, evidential problems and the solutions courts of law posed to these problems. In view of this reality, the case analysis in this Case Digest is not limited to direct court rulings on evidential issues, but also encompasses descriptions of the mosaic of evidence which led to convictions, along with evidential problems which arose and the solutions courts posed to them. The reasoning behind this is that the mosaic of evidence in traficking cases tends to repeat itself, so that pointing out certain types of evidence, the problems they raise, and solutions found, may in itself be of value to practitioners from other countries who may have experienced similar scenarios in their jurisdictions, but never realized they were part of a worldwide pattern, typical to traficking cases. Thus, the Case Digest analyses cases in the following contexts: 1. The evidential issue is raised and discussed explicitly. Examples can be questions such as when and for what purposes expert opinions can be used; when the past sexual history of a victim can be submitted in evidence; when a case will not be closed though the main victim is not a witness. Within this category there may be rulings directly relevant to the case or those mentioned incidentally. 2. A piece of evidence is mentioned, but there is no explicit discussion of a legal issue in regard to it. Sometimes it appears as part of the mosaic of evidence, without an explicit comment, thus suggesting that it was viewed as relevant to the conviction; sometimes it appears in conjunction with a brief statement by the court that it is admissible or relevant, or admissible despite laws or did not detract from the credibil- ity of a witness or of another piece of evidence. 17 3. Sometimes a piece of evidence may be mentioned by the court as a tangential fact, where it is unclear if it was used as part of the mosaic of evidence to attain a conviction or lead to an exoneration. In view of this array of possibilities, an effort was made to analyse each case painstakingly and to note how each piece of evidence was addressed by the court: as part of an explicit and direct ruling germane to the case; as an incidental comment; as part of the mosaic of evidence mentioned by the court as relevant to the conviction or exoneration; as a tangential fact not clearly relevant to the decision. The Case Digest also attempts to analyse for what purpose a piece of evidence was considered relevant. When a piece of evidence relates to a particular element of the crime, this is mentioned; when it is connected to the conviction in general, this is noted; when it is relevant to the sentence, this is stressed. While the Case Digest focuses on convictions, where deemed relevant and in as far as available to the authors, it also seeks to cite cases resulting in exonerations and cases where the prosecution or police decided not to pursue a case. There is also an attempt to enrich the Case Digest by highlighting cases in which different judges on one bench disagreed or cases in which there are disagreements between trial and appeals courts.

1.5 Structure of the Case Digest

As can be seen from the table of contents, the Case Digest will irst discuss the kinds of evidence that can be used in the context of bringing to court a traficking in persons or allied crime case, whether testimonial, documentary or “real evidence”. It will then present what we have called a ”mosaic of evidence”, including a discussion of circumstances that can contribute to a conviction if established by the court such as violence, vulnerabilities, or restrictions of freedom; a discussion of circumstances that may potentially weaken the case, e.g., the victim’s apparent freedom of movement. The next section of the Digest addresses particularly dificult evidential challenges such as investigating the full chain of traficking; cases where exploitation never transpired; and inally, because it deserves particular attention, 17 Examples of such treatment by courts might be mentioning contradictory statements by victims without ruling expressly on their impact on credibility or mentioning the submission of an expert opinion from an anthropologist or psychologist, without a ruling expressly on its admissibility or weight.