Dalton Mwangi Chege
LSG201-C002-0082/2023
Evidence Law
At trial, values other than truth has to be respected, not simply as subsidiary
Considerations, but as values which are internal to the nature and purpose of fact
Finding” H.L.Ho, The Philosophy of Evidence Law (Oxford University Press 2010)
Discuss the accuracy or otherwise of the above proposition
The assertion by H.L. Ho that values beyond truth are integral to the fact-finding process in
trials highlights the complexity of the judicial system’s role. While the pursuit of truth is a
central objective, it cannot exist in isolation from other principles that safeguard justice,
fairness, and human dignity.1Fact-finding involves reconstructing past events based on
evidence and testimony, a task inherently fraught with limitations such as human error, bias,
and the constraints of evidence admissibility rules. The relationship between truth and fact-
finding is therefore nuanced; it must coexist with other values that ensure the trial process is
just and reliable.
Fact-finding in trials is rooted in the idea of seeking answers to factual questions, but its
purpose is not confined to determining the truth at all costs. 2For some, truth is the ultimate
goal of adjudication, as reflected in R v. Nokolovski, where the Supreme Court of Canada
declared that the primary aim of trials is to ascertain the truth. 3 However, others argue that the
notion of courts being mere truth-seekers is a misconception. Pollock famously critiqued this
view, emphasizing that courts are not exclusively concerned with uncovering the truth but
with resolving disputes in a manner that upholds justice and fairness.4
The legal framework supporting fact-finding recognizes the limitations of evidence and the
broader values it must uphold. According to Alex Stein, evidence law seeks to promote
accurate fact-finding while minimizing errors and respecting fairness. However, the process
of achieving this balance is far from straightforward. Procedural and substantive values often
take precedence over the unrestrained pursuit of truth, ensuring that the judicial process
adheres to principles of fairness, integrity, and respect for human rights.5
Central to any trial is procedural fairness, which safeguards the rights of all parties and
ensures that justice is achieved through a transparent and equitable process. This principle is
enshrined in Article 50(1) of the Kenyan Constitution, guaranteeing the right to a fair
hearing.6 Such fairness includes the right to present evidence, cross-examine witnesses, and
challenge the case against oneself. The maxim audi alteram partem captures this foundational
principle: no party should be condemned without being given an opportunity to be heard. In
1
Ho Hock Lai ‘A Philosophy of Evidence Law-Judicial Search for the Truth’( 1 st edn, OUP
2008)78
2
Hans Kelsen “Sovereign and Equality of States” Yale Law Journal 53 {1994) 207 at 218
3
(1996) 96 O.A.C. 1 (SCC)
4
Frederick Pollock, ., The Genius of the Common Law, Liberty Fund Inc., 1923
5
Alex Stein, Foundations of Evidence Law OUP (2005) at .38
6
Article 50,Constitution of Kenya,2010
Mwathi v. Mwathi, the court reiterated that fairness is essential to justice, ensuring that all
parties have an equal chance to participate in the trial process.7
Impartiality is another cornerstone of procedural fairness, requiring decision-makers to
remain unbiased.8 The famous dictum in R v. Sussex Justices, ex parte McCarthy—that
justice must not only be done but also be seen to be done—underscores the importance of
impartiality in preserving public trust in the judicial system. 9 These procedural safeguards
ensure that truth-seeking does not overshadow the fairness of the process, maintaining the
integrity of the trial.
Another value that transcends truth is the protection of human dignity and rights. No
individual should be compelled to self-incriminate or subjected to inhumane treatment in the
name of truth.10 The exclusion of coerced confessions exemplifies this principle, as seen in
Mapp v. Ohio, where the U.S. Supreme Court ruled that evidence obtained through
unconstitutional means was inadmissible. 11Similarly, Section 76 of the Kenyan Law of
Evidence Act prohibits the use of confessions obtained through coercion. 12 These provisions
underscore the idea that justice cannot condone methods that violate fundamental human
rights, even if such methods yield truthful evidence.
The reliability and integrity of the judicial process also take precedence over the mere pursuit
of truth. Courts are tasked with ensuring that the process of gathering and presenting
evidence adheres to legal standards, thereby preserving public confidence in the system. 13 The
best evidence rule, codified in Section 65 of the Law of Evidence Act, requires the
presentation of original evidence to prevent inaccuracies and ensure the credibility of judicial
outcomes. 14In R v. Onufrejczyk, the court highlighted that procedural norms must guide
admissibility to maintain the integrity of the judicial process.15
Public confidence in the legal system is fundamental to its legitimacy. Trials must be
conducted in a manner that upholds public trust, as fairness in procedure is as important as
the outcome. A system perceived as unjust or biased undermines its own authority. In
Briginshaw v. Briginshaw, the court balanced the standard of proof with the gravity of the
issue, emphasizing that maintaining public confidence in judicial outcomes is as vital as
uncovering the truth. 16Admitting evidence obtained unlawfully or unfairly can erode this
trust, highlighting the importance of procedural safeguards like those surrounding hearsay
evidence under Section 33 of the Law of Evidence Act.17
7
Civil Appeal 123 of 1992
8
Ibid 1, p 231
9
[1924] 1 KB 256, [1923] All ER Rep 233
10
(1846) 1 DegG & SM, 12, 28
11
367 U.S. 643 (1961).
12
Cap 80,Laws of Kenya
13
Ibid 1, p 176
14
Evidence Act 2014, s 65
15
All E.R. 247 (1955)
16
(1938) 60 CLR 336
17
Ibid 12,s 33
Ethical and moral considerations further demonstrate the values that trials must respect.
18
Courts are reluctant to admit evidence obtained through entrapment, deceit, or other
unethical means, as doing so could incentivize wrongful conduct. In re Estate of Fuld (No. 3),
the court refused to admit evidence acquired in a morally questionable manner, reaffirming
that justice must be served within ethical boundaries. 19This reflects the broader principle that
the rule of law, and not just the truth, must guide judicial decisions.
Finally, legal presumptions such as the presumption of innocence prioritize procedural justice
over truth-seeking. Enshrined in Article 50(2) of the Kenyan Constitution, this principle
places the burden of proof on the prosecution, ensuring that individuals are not wrongfully
convicted based on untested evidence. In Woolmington v. DPP, the court affirmed that the
prosecution must prove guilt beyond a reasonable doubt, underscoring that protecting the
accused’s rights is paramount, even if it sometimes results in the truth remaining elusive. 20
In conclusion, while truth is undeniably a crucial objective of trials, it operates within a
broader framework of values that uphold justice, fairness, and integrity. As H.L. Ho argues,
these values are not mere subsidiaries but are integral to the fact-finding process.
18
Ho Hock Lai (supra) at p 79
19
2 W.L.R. 717
20
[1935] AC 462
