Improperly Obtained Evidence and the Epistemic Conception of the Trial
| Date | 01 August 2017 |
| Published date | 01 August 2017 |
| DOI | 10.1177/0022018317705772 |
| Subject Matter | Articles |
Article
Improperly Obtained
Evidence and the Epistemic
Conception of the Trial
Tony Ward
Law School, Northumbria University, UK
Abstract
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 fact-
finder, 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.
Keywords
Improperly obtained evidence, abuse of process, rule of law, philosophy of evidence law
Rules or decisions excluding improperly obtained evidence are commonly classed as matters of ‘extrin-
sic policy’, because they ‘rest on no purpose of improving the search after truth’.
1
Such a distinction
implicitly privileges ‘intrinsic’ goals of truth seeking and the protection of the innocent over rules that
serve competing values. Works such as H. L. Ho’s A Philosophy of Evidence Law: Justice in the Search
for Truth
2
provide subtle analyses of the interplay of moral and epistemic values in the truth-seeking part
Corresponding author:
Tony Ward, Law School, Northumbria University, Newcastle upon Tyne, NE1 8ST UK.
Email: a.ward@hull.ac.uk
1. J. H. Wigmore, A Treatise on the System of Evidence in Trials at Common Law, vol. 4 (Little, Brown & Co.: Boston, 1905) at
2951. For a more recent discussion of ‘extrinsic policy’, see A. Choo, Abuse of Process and Judicial Stays in Criminal Pro-
ceedings, 2nd edn (Oxford University Press: Oxford, 2008) 17–19.
2. H. L. Ho, A Philosophy of Evidence Law (Oxford University Press: Oxford, 2008).
The Journal of Criminal Law
2017, Vol. 81(4) 328–338
ªThe Author(s) 2017
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DOI: 10.1177/0022018317705772
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