Guest Blogger: Jacqueline Ross

It's IntLawGrrls' great pleasure to welcome Jacqueline Ross (left) as today's guest blogger.
Professor of Law at the University of Illinois College of Law, Urbana-Champaign, Jacqueline is an internationally noted comparatist in the fields of evidence and criminal law and procedure. Her scholarship -- published in journals in the United States and elsewhere -- includes "Impediments to Transnational Cooperation in Undercover Operations: A Comparative Study of the United States and Italy," 52 American Journal of Comparative Law 569 (2004), winner of the Edward Wise Senior Scholar Prize from the American Society of Comparative Law for best article in comparative criminal procedure.
Jacqueline's a co-founder and co-director of the Michigan-Illinois-Princeton Workshop on Comparative Law Works in Progress, and also the co-organizer of a seminar series on Transnational Intelligence and Policing in Immigrant Communities that alternates between Institut D'Études Politiques de Paris and the University of Illinois College of Law. Her research projects include comparative studies of undercover policing in the United States, Italy, Germany, and France; and of policing in the immigrant communities of the United States and France, for which she's received a Fulbright Research Fellowship and a grant from France's Agence Nationale de Recherche.
An honors graduate of the University of Chicago Law School, Jacqueline clerked for Judge Douglas H. Ginsburg, U.S. Court of Appeals for the District of Columbia Circuit, then practiced as an Assistant U.S. Attorney in Chicago and Boston before entering academia.
In her guest post below, Jacqueline applies comparative analysis to undercut the claim, made by many a common law expert, that evidence admitted in civil law trials without any form of prior screening.
Heartfelt welcome!

Deception, interrogation & evidence

(My thanks to IntLawGrrls for the opportunity to contribute this guest post on an article I published at 28 Oxford Journal of Legal Studies 443 (2008), downloadable by subscription at the hyperlinked site; earlier, bepress.com version available here)

In my recent article, Do Rules of Evidence Apply (Only) in the Courtroom? Deceptive Interrogation in the United States and Germany, I challenged the commonly held view that civil law legal systems such as Germany do not employ formal rules of evidence comparable to those that govern American courtrooms.

Civil law systems, which commit factfinding to mixed panels of lay and professional judges, are said to have less need for formal rules of evidence that withhold information from decisionmakers. In my article, I argued that scholars have failed to recognize that evidentiary rules can restrict not only the presentation of of evidence at trial, but also the manner of its acquisition during the pretrial investigation. For this reason, existing scholarship overlooks a rich source of German evidentiary norms designed to shore up a German prohibition against deceptive interrogation. (By contrast, of course, the United States permits the police to obtain confessions through investigative lies.)

I argue that German regulation of police interrogation -- particularly its prohibition of deceptive stratagems -- plays an important role in shaping the factual record on which the legal systems assess guilt or innocence. The article identifies a number of institutional factors on which this system of pre-trial evidentiary regulation depends:

► the existence of a case file documenting all investigative acts;

► the accessibility of this case file to defense counsel and judges;

► the fact that information obtained during investigations becomes evidence as soon as it is acquired, rather than when it is presented at trial;

► verbatim transcriptions of all interrogation questions and answers, allowing prohibited investigation methods to become known;

► a more neutral investigative role assigned to police and prosecutors, who must investigate exculpatory as well as inculpatory circumstances;the requirement that convictions be justified in writing, so that appellate judges may more easily determine whether trial judges relied on confessions that should have been suppressed; and

► the fact that German evidentiary regulation centers at least as much if not more on the investigative process than on trial procedure.

(Credit for photo of German courtroom. An earlier IntLawGrrls post, challenging another assumption about civil law systems, is here.)

The (In)Effectiveness of Torture

Grateful thanks to IntLawGrrls for inviting this guest post on my recently published essay, entitled 'Behind this Mortal Bone': The (In)Effectiveness of Torture, 83 Indiana Law Journal 3493 (2008).

The essay isolates our assumptions about torture and provides a bit empirical grounding for a debate that has been largely theoretical.

I begin the piece by identifying widespread belief in what I have the termed the “torture myth” — the idea that torture is the most effective interrogation practice. Rather than continuing to believe in the torture myth, I argue that as part of our evaluation of the merits of torture, we should take a shrewd look at the quality of information brutal interrogations produce. In reality, as I describe in the essay, in addition to its oft-acknowledged moral and legal problems, the use of torture carries with it a host of practical problems which seriously blunt its effectiveness. The essay demonstrates that contrary to the myth, torture, and the closely related practice of torture “lite,” do not always produce the desired information. Moreover, in the cases in which they do produce such information, these practices may not produce it in a timely fashion.

In the end, the essay concludes, any marginal benefit these practices offer is low, because traditional techniques of interrogation may be as good, and possibly even better, at producing valuable intelligence.