n South African Law Journal - A juryless jurisdiction and the epistemic rules of evidence
|Article Title||A juryless jurisdiction and the epistemic rules of evidence|
|© Publisher:||Juta Law Publishing|
|Journal||South African Law Journal|
|Affiliations||1 University of Cape Town and 2 University of Cape Town|
|Publication Date||Jan 2011|
|Pages||513 - 532|
In this article, the appropriate formulation of the so-called 'epistemic rules of evidence' - the rules which have the primary objective of promoting accuracy in fact-finding - are considered in the context of a legal system such as South Africa's, where no jury system operates. A fundamental question is whether these epistemic rules of evidence should be retained in the absence of a jury-trial system. The work of two of the most prominent international authorities on this matter, Damaska and Schauer, are thoroughly discussed in part II of the article. The focus then shifts to the relationship between the general evidentiary principle of relevance and the epistemic rules. Two of the most important rules - the rule on similar fact evidence and the hearsay rule - are analysed to give context to the debate. The argument is ultimately that these rules are merely an expression of the general rule that for evidence to be admissible it must be relevant in that probative value must exceed prejudicial effect. The specified epistemic exclusionary rules such as the similar fact and hearsay rules are merely specialised expressions of the same general relevance rule, and modern reforms have been directed at getting rid of rigid categories of exception in favour of the application of general principles. But, importantly, the authors argue that this is not necessarily a free proof argument, and that the rules remain important and significant in a non-jury system, provided that they are understood as flexible, principled rules that have a role to play in maximising accuracy in decision making, exposing judicial reasoning, and providing an appealable data base.
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