The Fair Trial Rationale for Excluding Wrongfully Obtained Evidence

Abstract

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.