In the discussion which follows, the function served by ‘evidence’ within the adversarial system will be considered. The central importance of relevance to the admissibility of evidence will be linked to the purpose served by the tribunal of fact. The range of factors which impact on the criminal justice system will act as a basis to consider the justification for the exclusion of certain evidential material. Developments in attitudes as a result of recent legislation will lead the discussion to the conclusion that the above statement is not sustainable
Setting the scene
The adversarial system involves competing versions of disputed events being advanced by parties to the litigation. The purpose of this ‘battle’ is much debated in the academic literature. Certain commentators emphasise the ‘truth seeking’ theory of adjudication and the belief that justice absolutely depends on it. Whilst the nature of ‘truth’ in itself may be contested, it is accepted, for the purpose of this discussion, that it is the central goal of the adversarial system. Murphy draws attention to” other legitimate concurrent goals” in the context of the judicial trial which include the upholding of ‘fairness’ the exclusion of evidence which may be ‘inherently suspect/unreliable’ or ‘prejudicial’. The role of evidence in the accurate reconstruction of past events and what restraints, if any, should be in place will be explored.
The adversarial system involves the State pitted against the individual defendant. There is little doubt that a significant disparity exists between the combatants. Stockdale and Casel claim that many of the basic rights extended to the defendant are attempts to compensate for this inherent disparity and to put the adversaries on a more level playing field. Fundamental to the notion of ‘fairness’ are the provisions of Article 6 of the European Convention of Human Rights (ECHR) and the courts responsibilities, as a ‘public authority’ In addition, for the maintenance of public confidence, it is essential that the criminal justice system is, and is seen to be, in accord with rule of law.
Observers have noted in recent years a shift in government policy toward what is perceived as ‘redressing the balance’ in criminal justice, to be more advantageous to victims and less so to the accused. (have implications for current exclusionary rules)
Nature of evidence.
May and Powles view evidence as ‘something’ which tends to prove or disprove something else. In the context of a trial this consists of information placed before the court for the purpose of proving or disproving facts in issue. Beecher-Monas states that in a system based on the rule of law and which aspires to ‘truth’, the accuracy and reliability of such information is essential. The mechanisms available to the court to determine the latter, centre on the presentation of evidence under oath, cross-examination and the observation...