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‘Evidence a non-subject. It’s a series of procedural rules with no particular intellectual coherence and deserves to be treated as a matter of professional practice and not as part of an academic degree course’

‘Evidence a non-subject. It’s a series of procedural rules with no particular intellectual coherence and deserves to be treated as a matter of professional practice and not as part of an academic degree course’

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An essay for the 2012 Undergraduate Awards Competition by Florence McAreavey. Originally submitted for LLB Hons with Criminology at None, with lecturer Eugene McNamee in the category of Law
An essay for the 2012 Undergraduate Awards Competition by Florence McAreavey. Originally submitted for LLB Hons with Criminology at None, with lecturer Eugene McNamee in the category of Law

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Published by: Undergraduate Awards on Aug 30, 2012
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07/12/2014

 
 
1
Evidence a non-subject
. It’s a series of procedural
rules with no particular intellectual coherence anddeserves to be treated as a matter of professionalpractice and not as part of an academic degreecourse
 
 
 
2
AbstractThis essay confronts the provocative title declaration by developing an argument that certainconceptual and practical clarifications are necessary for a productive engagement with theissues that arise. First, that state prescribed rules and procedures should be an acknowledgedaspect of a larger encompassing subject of Evidence and Proof in Litigation. Secondly,tracing a history of the subject, that although a distinction exists between the study of theLaw of Evidence and the study of analysing evidence, this is a modern development whichhas lead to an unhealthy separation of the academic discipline from the challenges andrealities of legal practice. The implication, it is argued, is that there are significantpedagogical benefits of a return to the central traditions of evidence, probability and forensicreasoning by legal scholarship. The argument briefly sketched above is developed through the following stages. The gap inundergraduate education is noted and attention is drawn to the inadequate practice of the
 pick-it-up-as-you-go
approach
.
The point is made that the process of proof transcends thelegal arena; it is apt for scientific study and appropriate for multidisciplinary application ingeneral. To acknowledge the superiority of principles of proof over the more prominentrules of procedure is not to advocate the abolition of all binding rules. Working down to the
‘sharp end’ of legal evidence, this essay argues
that it would be to the detriment of societyshould the bias in favour of the defendant be lost, but notes recent legislative encroachment
upon the defendant’s right to silence. The image of the Anglo
-American adversarial legalsystems being more akin to a sporting challenge than a pursuit of justice is discussed and acall is made for transparency in fact-finding to avoid a good story prevailing over a true storyin the courtroom. The need for robust standards of auditable evidence investigation is
highlighted with the use of a recent historical Northern Irish illustration: the McGurk’s Bar 
bombing. A central issue of the original case, which was effected by investigative bias atthe time, is re-visited with a fact-finding assessment that uses abductive, deductive andinductive reasoning. It affords a simple view of how testing the integrity of a hypothesisbroadens a field of inquiry and prevents reliance upon a misleading single hypothesis. The
sophistication of investigation methods has developed considerably since the McGurk’s Bar 
bombing in the 1970s and yet 9/11 showed lessons have still to be learned in how to processand use gathered facts. This essay asserts that even with advanced electronic support there isno substitute for sound evidence-based inferential reasoning and analysis training. Itconcludes by highlighting that a broader understanding of evidence is a valuable transferable
 
 
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skill that should be taught throughout the entire law curriculum; it should not be left to be
 picked up
in legal practice.
Abstract word count: 467
 
Five words:
legal scholarship, inferential reasoning, analysis
 
Formatted:
Indent: First line: 0"

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