Many rationales have been offered for the judicial power to exclude wrongfully obtained evidence. Each rationale shapes the scope of such power differently. This chapter selects for examination three legal systems in which the avowed rationale is to uphold the fairness of the trial. It explores the premises underlying, and the limitations of adopting, the fair trial rationale in these three jurisdictions. An examination of the case-law suggests that there is room for greater critical engagement on the meaning of a fair trial, clearer articulation of how fairness is undermined by allowing reliance on wrongfully obtained evidence, and deeper reflection on whether the fair trial rationale provides a sufficiently broad basis for exclusion.
This paper addresses a cluster of issues. What is state entrapment? Why is it objectionable? Is it wrong to prosecute the entrapped? What should the court do when the case is brought before it? These questions are intertwined. To know what is wrong with state entrapment, we must be clear about what it is; our understanding of what constitutes state entrapment, with its negative connotation, is shaped by what we think is distinctively wrong with it; and, we cannot know how the court should deal with state entrapment unless we identify the precise problem to which a judicial response may be required. The right response is a permanent stay of proceedings. A stay should be granted because the executive does not come to court with clean hands. It lacks the standing to blame the entrapped for what he or she did, and the state lacks the standing to condemn the person for the same.
The law requires criminal guilt to be proved beyond a reasonable doubt. There are two different approaches to construing this legal rule. On an epistemic approach, the rule is construed in terms of justified belief or knowledge; on a probabilistic approach, the rule is construed in terms of satisfying a probabilistic threshold. An epistemic construction of the rule has this advantage over a probabilistic construction: the former can while the latter cannot excuse the state from blame for a false conviction. This claim rests on an understanding of legal rules, legal justification for a finding of guilt and the central purpose of a criminal trial.
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