Academic journal article The William and Mary Bill of Rights Journal

Common Law Evidence and the Common Law of Human Rights: Towards a Harmonic Convergence?

Academic journal article The William and Mary Bill of Rights Journal

Common Law Evidence and the Common Law of Human Rights: Towards a Harmonic Convergence?

Article excerpt

Introduction

This Article considers what impact Human Rights Law has made on the common law of evidence, developed in common law jurisdictions as a discrete body of law and practice with a particular focus on exclusionary rules of evidence. Particular emphasis will be given to the jurisprudence of the European Court of Human Rights (ECtHR) which this Article argues has tried to steer an uneasy path between two positions. The first position is one of minimal interference toward the way in which evidence is regulated in member states. This position proceeds on the basis that as an international court, the ECtHR must respect the traditions of member states, and that those member states should be the driving force in the matter of applying the European Convention on Human Rights. This has resulted in the Court taking a back seat, arbitrating on application of the fair-trial principles in individual cases, and intervening only when the result of a case has led to an unfair outcome. The second position is to take a more supervisory position of "director of operations," ensuring that the right to a fair trial and the rights of the defense are made sufficiently "practical and effective" within the member states.1 It will be suggested that in its early days the Court gravitated in favor of the first approach, but in more recent times it has moved toward the second approach. in particular, it has developed certain rules that have had the effect of encouraging common law judges to engage more holistically with the effect of certain kinds of evidence on the weight of the evidence as a whole and on the fairness of the proceedings as a whole. The effect has encouraged a shift in the nature of both their epistemic and non-epistemic reasoning during the trial. In its more recent decisions, however, the Court appears to have drawn back from its activist stance of setting standards of fair participation in evidentiary matters and has become more fixated on the traditional common law concern with reliability. This has arguably pushed back the potential of the ECtHR to shift the common law toward reaching a more harmonic convergence between achieving truth and fairness in criminal proceedings.

Part I of the Article identifies two distinct characteristics of the common law model of Evidence Law: the exclusionary nature and unitary effect of the rules of evidence. Although the aim of many of these rules has been to promote accurate fact finding, this is achieved byjudges filtering out certain classes of unreliable evidence on an atomistic, piecemeal basis, without considering the impact of these items of evidence on the case as a whole. The focus on excluding certain types of unreliable evidence in criminal and civil cases alike has meant that little attention was paid to issues of procedural fairness in criminal proceedings. This Part ends by illustrating how common law judges have increasingly had to engage in "forensic reasoning rules" and developing protective rights for accused persons.

Part II then examines the approach that the ECtHR has adopted toward rules of evidence and traces a growing activism in this respect as the Court has developed its own directive standards of procedural fairness based on fair participation. Two particular rules developed by the ECtHR will be considered which exemplify the second more activist approach: the so-called Salduz doctrine and the so-called "sole or decisive" rule applied to unexamined statements. The Salduz doctrine is a kind of European "Miranda" rule whereby access to a lawyer should be provided from the first police interrogation of a suspect. Any use of incriminating statements at trial which have been made during police interrogation without such access will, in principle, irretrievably prejudice the rights of the defense.2 The "sole or decisive" rule provides that defense rights are unduly restricted if the conviction of a defendant is solely, or mainly, based on evidence provided by witnesses whom the accused is unable to examine at any stage of the proceedings. …

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