Although there are many texts on the law of evidence, surprisingly few are devoted specifically to the comparative and international aspects of the subject. The traditional view that the law of evidence belongs within the common law tradition has obscured the reality that a genuinely cosmopolitan law of evidence is being developed in criminal cases across the common law and civil law traditions. By considering the extent to which a coherent body of common evidentiary standards is being developed in both domestic and international jurisprudence, John Jackson and Sarah Summers chart this development with particular reference to the jurisprudence on the right to a fair trial that has emerged from the European Court of Human Rights and to the attempts in the new international criminal tribunals to fashion agreed approaches towards the regulation of evidence.
This paper sets out to examine the epistemic ambitions of the criminal trial. It argues for an understanding of criminal evidence and proof which is inextricably connected to the demands of justified punishment and fair trials in the rule of law. Criminal trials must prioritise the individual rights of the accused, but they also define more generally the manner in which those subject to the law are to be treated in order to engender public acceptance of the verdict. In this sense, it is sceptical of instrumental accounts of criminal adjudication and, in particular, of the feasibility of any sort of separation of outcome and process. It subscribes instead to the notion that (true) belief in the necessity of imposing punishment in the rule of law will only be warranted if it is based on appropriate reasons, understood as reasons which are formed following a distinct type of process.
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