Probative Value, Reliability, and Rationality

Abstract

This paper provides criticism of the approach to assessment of probative value that has been developed by appellate courts in Australian Uniform Evidence Law jurisdictions. That approach prohibits consideration of the issue of reliability in assessing the probative value of evidence for the purposes of determining admissibility. It is argued that insufficient attention has been paid to the concept of rationality in the definition of probative value provided by the legislation. Careful consideration of that concept ought to lead to the conclusion that any evaluation of probative value must take account of concerns about the reliability of the evidence.