The Withering Away of Evidence Law: Notes on Theory and Practice

The plausibility of evidentiary regimes depends on morebasic understandings of the nature of the trial. 'Tough-minded" evidence scholars may sometimes be reluctant toconcede the importance of more "tender-minded"normative inquiries into the trial. Some implicit ideals ofevidence law, such as factual accuracy, are relativelyconstant among theories of the trial, while others, such asmateriality, are significantly affected by the choice amongcompeting theories. This Article identifies the dominanttheory of the trial and then suggests an alternative. Itthen offers a number of grounds for further relaxing theexclusionary force of evidence law and for strengtheningits "parliamentary" function of imposing order anddiscipline on the trial.

Finally, it offers some concreteexamples of what an evidence law that performed aparliamentary, but not an exclusionary, function wouldlook like.