The Truth and the Law

Abstract

The purpose of legal proceedings is to identify the true factual circumstances of any matter in dispute. This principle is of fundamental significance for the administration of justice and the maintenance of public confidence in the legal system. Recognising the central significance of truth necessitates the narrow statement of exceptions or qualifications to the fact-finding process, which should be confined to circumstances in which the search for truth conflicts with other public values, including the principle of a fair trial. This paper compares and contrasts civil law and common law jurisdictions with respect to truth seeking. In particular, this paper highlights that even in jurisdictions expressly devoted to finding the truth, exclusionary rules and practices continue to circumscribe the material available to the tribunal of fact. Contrary to widespread belief, analogues to the common law exclusion of illegally obtained evidence, legal professional privilege, and hearsay, exist in civil law countries. Further, the absence of party-led fact-finding in such countries, particularly, the severe restrictions on the compulsory disclosure of documents, significantly attenuates the capacity of parties to bring all relevant materials to the court’s attention. This paper also discusses the frailty of human memory, particularly, the psychological research on the limitations of eyewitness and identification evidence. While an impediment to truth seeking, improved understanding of the scientific research may improve the fact-finding process.