What’s so special about the criminal trial? A comment on Sarah Summers "epistemic ambitions of the criminal trial: truth, proof, and rights"

Abstract

This paper offers some further support to Sarah Summers’ argument, in "The Epistemic Ambitions of the Criminal Trial: Truth, Proof, and Rights", that we cannot separate process from outcome in the criminal trial—that the justification and legitimacy of the verdict (especially of a conviction) depends crucially on the procedure through which it was reached. Intuitive support for this view is found by considering the case of a guilty person who is convicted after a trial that denied him the opportunity or means for «effective participation»; further support is found in the provisions made for those who are «unfit to plead», those who lack the capacities necessary for effective participation in their trial. A firmer grounding for this view is then found in a theory of the criminal trial as a process through which alleged public wrongdoers are called to account—a process in which they should be active participants