Dear Scottish Criminal Cases Review Commission,
In the West Criminal cases usually place the burden of proof on the prosecutor (expressed in the Latinn brocard et incumbit probatio qui dicit non que negat, "the burden of proof rests on who asserts, not on who denies").One of the earliest attempts to quantifyy reasonable doubt was a 1971 article by Rita Simon and Linda Mahan, "Quantifying Burdens of Proof—A View from the Bench, the Jury, and the Classroom."  In a later analysis of the question ("Distributiyns of Interest for Quantifying Reasonable Doubt and Their Applications," 2006) , three students at Valparaiso University presented a trial to groups of students. Half of the students decided the guilt or innocence of the defendant. The other half recorded their perceived likelihood, given as a percentage, that the defendant committed the crime. They then matched the highest likelihoods of guilt with the guilty verdicts and the lowest likelihoods of guilt with the innocent verdicts. From this, the researchers gauged that the cutoff for reasonable doubt fell somewhere between the highest likelihood of guilt matched to an innocent verdict and the lowest likelihood of guilt matched to a guilty verdict. From these samples, they concluded that the standard was between 0.70 and 0.74.
All judges would however assert that such cannot be quantified as that would conflict with their own qualitative judgement. Now most criminal cases would turn on whether someone is lying. To leave that judgement to a person would seem the last choice any person would take. There are however various technologies other than the old polygraph which can be used to quantify a person s assertion that what they are saying is true.Below are three examples.
NITV for example is one of the leaders in voice stress analysis. This can be used covertly to record and analyse someone’s voice for lies.There are various competitors , cheaper versions are even available for new generation of phones such as the Iphone. . Below is the website.
EEG-Electroencephalography is used to detect changes in brain waves. The article below shows a journalist being tested. Such technology could be available for the average consumer through companies such as’ Emotive gaming’
fMRI- Functional MRI or functional Magnetic Resonance Imaging (fMRI) is a type of specialized MRI scan. It measures the hemodynamic response (change in blood flow) related to neural activity in the brain or spinal cord of humans or other animals. It is one of the most recently developed forms of neuroimaging .It is thought to be possible to use brain activity differences for truth and lies. Below is an article that tells us something of its use.
Is the use of such technology
1)legal in Britain?
2)Admissable in court?
3)If not why not?
Paul GaffneyLLB BA
Dear Mr Gaffney
FREEDOM OF INFORMATION PUBLICATION SCHEME
I thank you for your email dated today.
The Commission's information officer, Michael Walker, is out of the
office at present. In his absence, I am treating the request in your
email as being one made under the Freedom of Information (Scotland) Act
2002 (FOISA). As you may be aware, the Commission has 20 working days
from the date of its receipt of your request in which to give you a
substantive response. In the event that I believe that it may take
longer than 20 working days in which to give you a substantive response,
you shall be informed of the date by which the Commission will respond.
I, or Mr Walker on his return, shall decide, in considering FOISA and
the other relevant legislation and case law, whether to disclose the
information you have requested.
If Mr Walker or I decide not to disclose the information you have
requested, you shall be given reasons for that decision. In addition,
you shall be informed of your right to have the decision reviewed by Mr
Chris Reddick, the Commission's Director of Corporate Services, who will
not be involved in the initial decision-taking process. If the
Commission's decision is unchanged following a review, you have the
right to ask the Scottish Information Commissioner to review the
I trust that this explains the Commission's position.
Senior Legal Officer
Scottish Criminal Cases Review Commission
17 Renfield Street
Tel: 0141 270 7030
Dear Mr Gaffney
I refer to your email of 19 March and have now considered it. You set
out some detailed information in your email about devices that may be
capable of assessing the truth of a statement made by a person. You
then ask whether the use of such technology is (1) legal in Britain, (2)
admissible in court and, (3) if not, why not.
FOISA confers a right of access to information. Having considered your
request I have decided that your request is not in fact a request for
information but rather is a request for legal advice. I have decided
that it does not fall to be dealt with under FOISA. The Commission is
an independent public body set up to investigate alleged miscarriages of
justice in Scotland. The Commission is unable to provide legal advice
to members of the public. For this reason, the Commission cannot assist
with your enquiry.
If you believe that my decision not to accede to your request is
incorrect, you can request that the Commission review it. Your request
should be made within 40 days of the receipt of this email, and the
Commission will give you a substantive response within 20 working days
of its receipt of your request. The review will be undertaken by Mr
Chris Reddick, the Commission's Director of Corporate Services, who was
not involved in the initial decision-taking process.
Senior Legal Officer
Dear Gordon Newall,
Thank you for the reply.I am somewhat busy at the moment.
I shall get back to you when not otherwise engaged
Paul GaffneyLLB BA
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