The Criminal Trial, the Rule of Law and the Exclusion of Unlawfully Obtained Evidence
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If the criminal trial is aimed simply at ascertaining the truth of a criminal charge, it is inherently problematic to prevent the prosecution from adducing relevant evidence on the ground of its unlawful provenance. This article challenges the starting premise by replacing the epistemic focus with a political perspective. It offers a normative justification for the exclusion of unlawfully obtained evidence that is rooted in a theory of the criminal trial as a process of holding the executive to the rule of law. On this theory, it is the admission rather than exclusion of such evidence that is inherently problematic. The differences between this theory and others that are in currency will be noted, as will its implications and limitations.
KeywordsEvidence law Criminal trial Rule of law Unlawfully obtained evidence Exclusionary rule
Different versions of this paper were presented at the 2013 symposium of the Law Faculties of the National University of Singapore, Singapore Management University and Hong Kong University and at the legal philosophy department of the University of Girona. I thank the participants for their comments and especially Professor Jordi Ferrer and Miss Carmen Vázquez for hosting my visit to Girona.
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