Justice in the Pursuit of Truth: A Moral Defence of the Similar Facts Rule

Abstract

The law of evidence serves an important function in ensuring the legitimacy of trial deliberation. One way of discharging this function is through 'regulation', effected in the form of rules forbidding reliance on particular lines of evidential reasoning. An example of such a rule is that on similar facts. The rationale for regulation will be explored by engaging in two kinds of analysis. Traditionally, an 'external' approach is taken. There are, so it is hoped to show, deficiencies in this approach. A different method of analysis, one conducted from an 'internal' perspective, will be proposed to meet these deficiencies. In many cases, values other than truth have to be pursued, not simply as subsidiary considerations, but as values which are integral to the nature and purpose of fact-finding. A party has not merely a right that the substantive law be correctly applied to objectively true findings of fact, and a right to procedure that is rationally structured to determine the truth; he has, more broadly, a right to a just verdict, where justice must be understood to incorporate an ethical evaluation of the process (of evidential reasoning) which led to the outcome (in the form of conclusions of fact). Truth and justice, so it will be argued, are not opposing considerations; rather, principles of one kind reinforce demands of the other. This article seeks to instantiate these general themes in a discussion of the similar facts rule.

Prosecuting rap: what does the case law tell us?

“…There is also a danger that jurors will act in an emotional or irrational way, perhaps concluding that a defendant is worthy of conviction based on their (perceived) character or prior conduct, rather than proof of the crime alleged. This is known as ‘moral prejudice’ or ‘the risk of emotivism’ (Law Commission 1996; Ho 2006, pp. 61–2).…”