TY - JOUR
T1 - Improperly Obtained Evidence and the Epistemic Conception of the Trial
AU - Ward, Tony
PY - 2017/8/31
Y1 - 2017/8/31
N2 - 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.
AB - 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.
KW - improperly obtained evidence
KW - abuse of process
KW - rule of law
KW - philosophy of evidence law
U2 - 10.1177/0022018317705772
DO - 10.1177/0022018317705772
M3 - Article
VL - 81
SP - 328
EP - 338
JO - The Journal of Criminal Law
JF - The Journal of Criminal Law
SN - 0022-0183
IS - 4
ER -