Review: A Philosophy of Evidence Law—Justice in the Search for Truth
| DOI | 10.1350/ijep.2009.13.2.320 |
| Author | David Hamer |
| Published date | 01 April 2009 |
| Date | 01 April 2009 |
| Subject Matter | Review |
REVIEW
REVIEW
Ho Hoc Lai
A PHILOSOPHY OF EVIDENCE LAW—JUSTICE IN THE SEARCH FOR
TRUTH
Oxford University Press Oxford, 200 hb , 3 pp, 0
Ho’s book makes a useful contribution to the burgeoning and contested field of
evidence theory. Its value is twofold. As well as presenting his own thought-
provoking perspective on evidence law, Ho provides a broad and exhaustively
referenced survey of past and current thinking, which will be useful both for
newcomers to evidence theory and for more seasoned evidence commentators.
Indeed, at times, Ho’s book is scholarly to a fault. Sometimes Ho foregrounds his
own work insufficiently, and the thread of his argument can be lost amidst the
concepts and analyses of others. The discussion of speech act theory, for example,
which takes up much of the first chapter, is erudite and interesting, but the extent
to which it advances Ho’s theory of evidence law is less clear.
As the title suggests, Ho’s book is chiefly concerned with the relationship between
two key goals of evidence law—justice and truth. He opposes the dominant trend
which puts the epistemic goal first, arguing that ‘[m]any rules of evidence …
embody values that legitimize trial findings of fact’ (p. 39). Values obviously lie
behind relatively peripheral evidentiary rules such as privilege and the exclusion
of improperly obtained evidence. However, Ho supports his case by providing
analyses of similar fact evidence, the hearsay rule and standards of proof, central
areas of evidence law that are traditionally viewed as advancing the factual
accuracy goal.
Ho’s point is an important one for evidence law reform. As he emphasises, an
assessment of the effectiveness of an existing principle ‘can only be judged against
a prior understanding of the value and purpose of the rule under investigation’ (p.
339). Consider, for example, the exclusion of similar fact evidence, such as
evidence of an accused’s other similar prior convictions. Ho questions the tradi-
tional rationale, that juries would give such evidence too much weight. It has long
been recognised that this evidence often has genuine probative value. Ho asks, if
the risk of misuse is real, would it not be better to let the evidence in and provide
guidance for the jury, as is done with other evidence such as eyewitness
doi:1350/ijep.2009.13.2.320
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2009) 13 E&P 161–165 161
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