Improperly Obtained Evidence and the Epistemic Conception of the Trial

This article criticises H.L. Ho’s argument that the exclusion of improperly obtained evidence can best be understood in terms of a ‘political’ rather than ‘epistemic’ conception of the criminal trial. It argues that an epistemic conception of the trial, as an institution primarily concerned with arriving at accurate verdicts on the part of an independent and impartial factfinder, is an important element of the rule of law. The court also has a duty to uphold other elements of the rule of law. The rule of law should be seen as concerned with upholding moral and political rights, including those of victims as well as defendants. The ‘vindication principle’, requiring decisions on exclusion of evidence to take account of both these sets of rights, is defended as being consistent with this understanding of the rule of law and with the epistemic conception of the trial.