The Trial on Trial (Volume 1), Truth and Due Process
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00585_5.x |
| Date | 01 March 2006 |
| Published date | 01 March 2006 |
Antony Du¡, Lindsay Farmer,Sandra Marshall and Victor Tadros (ed), The Trial
on Trial (Volume 1), Truth and Due Process,Oxford: Hart, 2004, x þ207pp,
hb d35.00.
The essays in this collection originated from papers presented at the ¢rst of two
workshops on the criminal trial; proceedings of the second will be published
separately, to be followed by a book co-authored by the editors. Judging by the
introduction to this volume, that book will be a signi¢cant contribution that
develops Antony Du¡’s well-known thesis inTrials and Punishments (Cambridge,
CUP, 1986). The nine essays study various aspects of the criminal trial, with
emphasis on its legitimacy and the pursuit of truth. Even within these themes,
the essays are diverse in terms of topics, conceptions of the trial and jurisdictional
focus. But it is a pity that there is no critical engagement between contributors.
The workshop at which these papers were read could not have been aquiet a¡air
(judging from p 160, n 10). The ¢rst two chapters are an example of where some
exchange would have been interesting. Peter Du¡ is suspicious of a strengthening
statutory duty in Scotland to agree on uncontroversial evidence and to dispense
with the callingof witnesses at the trial. Hesees aspectsin the adversarialtradition
worth protecting, speci¢cally party autonomy in case presentation and the com-
mon lawemphasis on oralexamination. Incontrast, McEwan is much more scep-
tical about the merits of that tradition. These essays set the scene for Jung’s
discussion of convergence of adversarial and inquisitorial systems. More conten-
tious, though, is Jung’s observation ‘that truth cannot be ‘‘found’’. . . it can only be
reconstructed’ (p148). It is di⁄cult to see howthis, as he appears to suggest, under-
mines the correspondence theory of tru th as applied to trial s. Unexciting though
itmaybe,Haackisrighttopointoutthatmostfactualclaimstriedincourtare
straightforwardly either true or false, and that no elaborate theory of truth is
needed for the study of legal fact-¢nding. Unease about truth and objectivity
arises when we confuse ‘what is true with what is known or proven to be true’
(‘Truth,Truths, ‘‘Truth’’ and‘‘Truths’’ in the Law’ (2003) 26 Harvard Jof L & Pub
Policy17,19). Thestatement that itis true that A killed B is perfectlyi ntelligible as
an assertion that A did kill B. How the court is to know, and how the prosecution
is to prove, that A did kill B are likely to be di⁄cult questions, requiring some
considerations of coherence in the evidential justi¢cation for our factual beliefs,
but theyare not questions about, nor do theyraise special di⁄cultiesin, the mean-
ing of truth.
This is not to deny that in applying a description evaluation is often necessary,
a pointskillfully pursued by Matravers andBurns, and touchedupon in the intro-
duction (p 19). Whether the defendant acted with reasonable care or under
extreme provocation or is deserving of punishment are obviously not questions
of brute fact. Even so, we need to knowbrute facts to apply legal standards.To use
Matravers’ ‘three strikes’ example (p 75), whether the defendant took the pizza
withoutits owner’s consent andwhether this is his third o¡ence arelogically prior
to the question of whether the defendant is, in the circumstances, deserving of the
punishment prescribed for acting in that way.The jury may sincerely believe that
the defendant is not deserving of a 25-year imprisonment for what hehas in fact
done. But it does not follow that the jury is not lying if it chooses to acquit.
Reviews
293The Modern LawReview Limited 2006
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