The Criminal Trial, the Rule of Law and the Exclusion of Unlawfully Obtained Evidence

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Web End = Crim Law and Philos (2016) 10:109131

DOI 10.1007/s11572-014-9304-7

ORIGINAL PAPER

Hock Lai Ho

Published online: 3 April 2014 Springer Science+Business Media Dordrecht 2014

Abstract 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 justication 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.

Keywords Evidence law Criminal trial Rule of law Unlawfully

obtained evidence Exclusionary rule

1 Introduction

If, as is commonly accepted, the criminal trial is aimed at ascertaining the truth of a criminal charge,1 it is inherently problematic to prevent the prosecution from adducing relevant evidence on the ground of its unlawful provenance. Exclusion of the evidence will deprive the court of that which may shed light on the material facts in dispute. Those taking an exclusionary stance are thus put on the defensive. They are faced with the burden of explaining why

1 E.g., R v. Nikolovski [1996] 3 S.C.R. 1197, 1206 (The ultimate aim of any trial must be to seek and to ascertain the truth); Tehan v. U.S. 383 U.S. 406, 416 (1966) (The basic purpose of a trial is the determination of truth).

H. L. Ho (&)

Faculty of Law, National University of Singapore, Eu Tong Sen Building, 469G Bukit Timah Road, Singapore 259776, Singaporee-mail: [email protected]

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the trial court should act in a way that would seemingly undermine the...