Review: Criminal Discovery: From Truth to Proof and Back Again
| Author | Hannah Quirk |
| Published date | 01 July 2010 |
| Date | 01 July 2010 |
| DOI | http://doi.org/10.1350/ijep.2010.14.3.360 |
| Subject Matter | Review |
REVIEW
REVIEW
Cosmas Moisidis
CRIMINAL DISCOVERY: FROM TRUTH TO PROOF AND BACK AGAIN
Federation Press; Sydney Institute of Criminology Series (Sydney, 2008),
287pp, ISBN-13: 9780975196779 (pbk), £32.50
Criminal discovery—the gathering and pre-trial exchange of material—is ‘arguably
the most important component of the pre-trial process’ (p. 1). The state has vastly
superior investigatory resources at its disposal compared to the defendant, and its
duty to share material developed partly in response to miscarriages of justice
linked to significant failings in this regard. Conversely, measures such as
requiring advance notice of alibi defences and curtailing the right of silence have
been introduced to prevent defendants from ‘ambushing’ the prosecution at trial.
In this volume, Cosmas Moisidis argues that the often polarised positions struck
around these countervailing duties of disclosure correspond to whether the trial
is regarded as a forum for establishing truth or proof. The author charts the
piecemeal evolution of discovery, exploring how the prevailing view has swung
between the two positions, and compares discovery schemes in Australia, England
and the USA with the goal of informing current debate and future policy.
The opening analysis details the development of trials from grand juries in the
12th century to the present. The focus is on the 18th and 19th centuries when the
transition occurred from what Langbein describes as a system of ‘the accused
speaks’ (before the Prisoners’ Counsel Act 1836, defendants would respond in
person to all accusations) to one of ‘testing the prosecution’ (in which the accuser
must prove the case without assistance from the accused). This development is
linked to the privilege against self-incrimination, the rise of adversarial criminal
procedure and the growing role of defence counsel.
In ch. 3, Moisidis illustrates the tension between theories of truth and proof in an
adversarial system by examining the assaults on the right of silence in England. He
describes a backlash against the ‘accused speaks’ theory which occurred following
the effective abolition of the death penalty in 1965 and the ascendancy of a crime
control agenda. Against this backdrop, the Criminal Law Revision Committee in
1972 began a series of attacks on the right of silence that continued through to its
curtailment by the Criminal Justice and Public Order Act 1994 (CJPOA).
doi:10.1350/ijep.2010.14.3.360
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2010) 14 E&P 281–285 281
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