The Truth Will Out? Incoherence and Scepticism in Foundations of Evidence Law

Abstract

Atrial is an enquiry into the facts of past events.Therewill always be a separation between the evidence and the material facts. This may generate uncertainty and disagreement about the facts of the case, and provoke controversy about the objectives of evidence law and the rationality of the fact-¢nding enterprise. This is the terrain covered byAlex Stein’s recent Foundations of Evidence Law. Stein has previously theorised many rules and principles of evidence law. Much of this work is incorporated into his new book, recast as supposedly coherent elements of a larger theory. Stein defends the edi¢ce of evidence law against free proof abolitionists who view it as ramshackle, sprawling, and crying out for demolition. Stein’s normative agenda is heavily grounded in existing institutions and doctrine, and he often makes substantial descriptive claims. Stein’s project is ambitious, moving between high abstraction and minute detail, and is frequently insightful. Ultimately, however, Stein fails to persuade. His vision contains major structural £aws. He delimits the domain of evidence law too narrowly, and frames the objectives of evidence law awkwardly. His treatment of related rules of evidence, such as standards of proof, appears ad hoc and inconsistent. More importantly, his understanding of the nature of inference, as revealed by his discussion of evidential weight and resilience, is seriously £awed. Ultimately, rather than making a persuasive case against free proof, Stein may have increased its attraction. Foundations provides a telling demonstration of the di⁄culty of bringing coherence to evidence law. Discretion being the better part of valour, this is an area fromwhich the law may continue to remove itself.