The Nature and Purpose of Evidence Theory

pproximately twenty-five years ago, Professor Richard Lempert, reflecting on the then-current state of evidence scholarship, noted a dramatic shift underway.' He described what had become a largely "moribund" field giving way to a burgeoning "new evidence scholarship." The scholarship in the moribund phase employed "a timid kind of deconstructionism with no overarching critical theory," was "seldom interesting," and any "potential utility" was "rarely realized"; Lempert proposed the following mock article title as a model representing the genre: "What's Wrong with the Twenty-Ninth Exception to the Hearsay Rule and How the Addition of Three Words Can Correct the Problem." By contrast, the "new evidence scholarship" was moving from merely interpreting rules to "analyzing the process of proof' and drawing insights from "mathematics, psychology and philosophy." To be clear, the new evidence scholarship still focused to a large extent on rules, but it provided more robust analysis in light of the legal proof process and its underlying goals- most significantly, the goals of fostering accurate outcomes, avoiding factual errors, and allocating the risk of error in a fair and justified manner.