Evidence: A Functional Meaning

A trial always involves two basic problems-the problem of ascertaining the truth of the matter in issue, and the problem of re-solving a dispute. The former can be characterized as the probative problem, arising from the problem of proving, and the latter as the forensic problem, arising from the procedural problem of proving-in-a-trial. The probative problem is a problem of evidence in that it is the problem of using evidence to ascertain the truth by "the ratiocinative process of continuous persuasion."' The forensic problem is a problem of the admissibility of evidence, and it is the forensic problem which has loomed largest in the field of evidence. The law of evidence consists of "procedural rules devised by the law, and based on litigious experience and tradition, to guard the tribunal (particularly the jury) against erroneous persuasion." The unsatisfactory state of these procedural rules is no longer open to question.

Most would agree that, "The law of evidence is sagging to the point of collapse under its own weight." Few would dispute that much of the law of evidence is "archaic, paradoxical: and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counter privilege to the other." A primary factor contributing to this condition seems to be that the prominence of the forensic problem in the law of evidence has obscured the importance of this probative problem.