A Philosophy of Evidence Law: Justice in the Search for Truth

362 Pages·2008·2.74 MB·English

by  H. L. Ho

A PHILOSOPHY OF EVIDENCE LAW
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A Philosophy of
Evidence Law
Justice in the Search for Truth
H L HO
1
3
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© Ho Hock Lai, 2008
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General Editor’s Preface
Th is monograph tackles the contested question of how to theorize the law of
evidence. Th e author develops a theoretical approach that draws upon refi ned
concepts of fact, trial, fact-fi nding, and adjudication, deploying insights from
linguistic philosophy, epistemology, and theories of justice. In particular,
Chapter 3 delves deep into the epistemology of legal fact-fi nding, discussing the
roles of presumptions, probabilities, and possibilities. Th e richness of these early
chapters then suff uses the application of the theoretical approach to three areas of
evidence law, with chapters on standards of proof and their meaning, on hearsay
evidence, and on similar fact evidence, using examples from both criminal and
civil law. Th e result is a major exploration of the function and purpose of eviden-
tial rules that should command attention from a wide range of criminal justice
scholars.
Andrew Ashworth
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Preface
Th e law of evidence has suff ered much abuse. Harvey described it as a ‘slapdash,
disjointed and inconsequent body of rules’;¹ Salmond saw it as ‘one of the last ref-
uges of legal formalism’;² Bentham found it to be ‘incompetent on every occasion
to the discovery of truth, . . . incompetent therefore, on every occasion, to the pur-
poses of justice’;³ and Cross reportedly looked forward to the day when the sub-
ject is abolished.⁴ Th ere is, so it will be argued, more of value in our common law
heritage of evidential rules than the critics allow. Many of the rules express, at the
core of their operation, principles integral to the epistemic and ethical justifi ca-
tion for the court’s fi ndings. Th e full value of evidence law cannot be seen unless
we adopt the perspective of the fact-fi nder as a moral agent. Th is is the standpoint
of a person with a critical role to play in the trial process. A diff erent perspective
is adopted by someone, conveniently characterized as the system engineer, who
evaluates the trial and its rules from the outside. Th e external approach to ana-
lysis of evidence law is the dominant one. Although illuminating, the approach
is, on its own, inadequate. Th is monograph makes a case for the indispensability
of an internal account. A feature of the account is the focus on trial deliberation.
Th e function and purpose of evidential rules are analysed in terms of their nor-
mative application to the process of reasoning towards a verdict. It is a central
claim of this book that fi ndings made by the court must be justifi able; they must
meet the conjoint demands of epistemic rationality and ethics.
In the main, this study is of the adversarial trial, that tradition of fact-fi nding
that has its origin in the common law. To be sure, there are many diff erences
in evidential rules, as well as legal culture, across common law jurisdictions.
Nevertheless, there is, broadly speaking, a family of central features—the
core doctrines and concepts—which are shared by trial systems of the Anglo-
American model. Th ree of those features are selected for discussion: the standard
of proof, the rule on hearsay evidence, and the rule on similar facts. Occasionally,
comparisons will be drawn with the approaches taken by continental systems and
international criminal tribunals.
Th e fi rst two chapters are introductory. Chapter 1 off ers an analysis of a num-
ber of fundamental aspects of fact-fi nding: it discusses the role of facts and their
¹ C P Harvey, Th e Advocate’s Devil (London: Stevens & Son, 1958) 79.
² John W Salmond, Jurisprudence or the Th eory of the Law (London: Stevens & Haynes,
1902) 597.
³ Jeremy Bentham, Rationale of Judicial Evidence, in John Bowring (ed), Th e Works of Jeremy
Bentham, vol 7 (Edinburgh: William Tait, 1843) 206.
⁴ As reported by William Twining, Rethinking Evidence—Exploratory Essays (Oxford: Blackwell,
1990) 1.