When Procedure Takes Priority: A Theoretical Evaluation of the Contemporary Trends in Criminal Procedure and Evidence Law

30 Pages Posted: 8 Jan 2017

See all articles by Ofer Malcai

Ofer Malcai

Hebrew University of Jerusalem - Faculty of Law

Ronit Levine-Schnur

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Date Written: January 3, 2017

Abstract

Current legal trends tend to obscure the sharp distinction between substance and procedure. This tendency is manifested, inter alia, as a growing dependence of procedural norms in substantive law; greater flexibility of procedural norms; and growing judicial discretion to deviate from procedural rules. In order to evaluate these contemporary trends, we provide a theoretical analysis of the basic relationships between procedural norms and substantive legal outcomes. This framework reveals the moral commitments underling these modern trends as opposed to the moral foundations of the traditional view that legal decisions should be made under rigid procedural constraints. Focusing on criminal evidence law, the proposed theoretical framework is applied to some of the ongoing legal debates, such as about the admissibility of evidence seized in violation of rights, the exclusion of statistical and character evidence, and the flexibility of the reasonable doubt standard of proof.

Keywords: Substance-Procedure, Evidence, Criminal Procedure, Reasonable Doubt, Judicial Discretion

Suggested Citation

Malcai, Ofer and Levine-Schnur, Ronit, When Procedure Takes Priority: A Theoretical Evaluation of the Contemporary Trends in Criminal Procedure and Evidence Law (January 3, 2017). Canadian Journal of Law and Jurisprudence, Vol. 30, 2017. Available at SSRN: https://ssrn.com/abstract=2893135

Ofer Malcai (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Ronit Levine-Schnur

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

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