The Technical Aspects of Technicality: A Slightly Whimsical Inquiry into What Makes a Rule of Evidence or Procedure ‘Technical’

Date01 April 2011
DOI10.1350/ijep.2011.15.2.374
Published date01 April 2011
Subject MatterArticle
WHAT MAKES A RULE OF EVIDENCE OR PROCEDURE ‘TECHNICAL’
The technical aspects of
technicality: A slightly
whimsical inquiry into
what makes a rule of
evidence or procedure
‘technical’
By Peter Murphy*
Circuit Judge (South Eastern Circuit)
Abstract This article explores the meaning of the word ‘technical’ in the context
of rules of evidence and related procedural rules. It concludes that the meaning
of the term has been obscured by the tendency of advocates to use it as an
umbrella term for a variety of complaints about the application of rules, and as
a forensic device for avoiding specificity about those complaints. It concludes
that a charge of technicality is generally attributable to the perception that a
rule does not advance the merits of the case; or serves no useful purpose; and is
in any case insufficiently flexible to be adapted satisfactorily to the needs of
particular cases.
Keywords Evidence; Technical; Technicality; Notice of intention to adduce
evidence; Corroboration
doi:10.1350/ijep.2011.15.2.374
144 (2011) 15 E&P 144–160 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
* Author of Murphy on Evidence and founding editor of Blackstone’s Criminal Practice. I would like to
thank the journal’s anonymous reviewer; also Richard Glover, Senior Lecturer in Law at the
University of Wolverhampton, for reading this article in draft and for his always helpful
comments; and Monica M. Ortale, Faculty Services and Reference Librarian at South Texas College
of Law for her considerable (I hesitate to say it, but technical) help with my research into American
sources.
The Tribunal shall not be bound by technical rules of evidence. It shall
adopt and apply to the greatest possible extent expeditious and
non-technical procedure, and shall admit any evidence which it
deems to have probative value.
Article 19 of the Charter of the International Military Tribunal (Nuremberg)
Introducing the T-word
am trying to find out what lawyers mean when they describe a rule of
evidence or related procedure as ‘technical’. Whatever it means, it
always seems to have a negative ring to it. In many fields of endeavour, to
describe something as technical (or, even better, highly technical) is to bestow
praise upon it. But in legal discourse it is a term of abuse. The application of a
technical rule portends terrible results, such as: an acquittal which would be ‘a
fortuitous and unmeritorious windfall’;1or a ‘lamentable’ situation in which
‘defendants whose guilt there is no reason to doubt escape their just deserts’.2The
denigration of a rule as technical seems always to convey a sense of frustration or
dissatisfaction with the application of the rule. Such feelings are by no means
confined to lawyers. It is not unusual to hear people say or to read in a newspaper,
referring to a decision of a judge or the Court of Appeal, that the defendant ‘got off
on a technicality’. But what exactly does that mean?
It is rare to hear an advocate describe a rule as ‘technical’ unless either his client
has failed to comply with it, or it is inconvenient to an argument he is making.
Recently, counsel prosecuting a number of sexual offences in my court proposed
to adduce evidence of the defendant’s bad character. Rule 35.4 of the Criminal
Procedure Rules (then 2005) provides that notice of intention to adduce such
evidence must be given using a prescribed form within the periods of time
specified.3The notice given, counsel said, did not ‘technically comply with the
rule’. By this, counsel meant that the application was being served on the first
morning of trial, as opposed to the date some months earlier on which it should
have been served. I was invited to overlook this ‘technical’ breach of the rules and
focus instead on the ‘merits’ of the application. The merits were said to be that
highly relevant evidence would be placed before the jury to rebut an anticipated
defence that the charges against the defendant were wicked fabrications by the
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 145
WHAT MAKES A RULE OF EVIDENCE OR PROCEDURE ‘TECHNICAL’
I
1Hughes vDPP [2003] EWHC 2470 at [16], per Stanley Burnton J.
2RvClarke and McDaid [2008] UKHL 8, [2008] 2 Cr App R 2 at [17], per Lord Bingham of Cornhill.
3 The Criminal Procedure Rules have since, with some amendments not pertinent to the present
discussion, become the Criminal Procedure Rules 2010 (SI 2010 No. 60). The text of the Rules can be
found in the supplement to the current edition of Blackstone’s Criminal Practice (Oxford University
Press: Oxford, 2011), or at , accessed
31 January 2011.

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