Towards a Dialetic Theory of Proof for Legal Procedure

Abstract

SUMMARY This paper argues that, in the light of the shift of interest in evidence scholarship from the rules of evidence towards the process of proof, there is a need to return to the rules of evidence and procedure to consider whether our legal procedures are enabling triers and investigators of fact to handle fact finding as well as they could. It is argued that present adversarial procedures do not allow enough scope for triers of fact to comprehend, marshall and shape the evidence presented at trial and a more dialectic approach is suggested which allows for greater interplay between triers of fact, parties and witnesses in adversarial proceedings. Within evidence scholarship there has been a marked shift in the last 20 years particularly in the USA away from interest in the rules of evidence towards the process of proof itself and the way that inferences should be drawn from a mass of evidence. Much of this 'new evidence scholarship', as Lempert (1986) has called it, has been concerned with the application of theories of probability to legal contexts and there has been less interest the other way in the lessons that can be learned about rules and procedures from probability theory. One connecting thread between the 'old' scholarship and the 'new' is that the new scholarship is still firmly located within what Twining (1982) has called the 'rationalist tradition of evidence scholarship', which has taken a non-sceptical view of truth finding by believing that present knowledge about past facts is possible by recourse to inductive modes of reasoning but is typically a matter of probability not certainty. Much of the old scholarship also took the view that this objective is generally speaking achieved in our present-day procedures. It is less clear whether the new scholarship shares this assumption and it is useful to probe this scholarship to see what its implications are for legal procedure. The new evidence scholarship with its emphasis on fact reasoning rather than the rules of evidence can be said to have begun with Wigmore whose belief that a mass of evidence could be systematically examined in a rigorous scientific manner is deeply imbued within the rationalist tradition (Wigmore, 1937). Wigmore also emphasized, however, that the evaluation of evidence involves subjective feeling and imagination as much as reason and logic and in this we can see the beginnings of an important gloss on the rationalist tradition which tended to overlook the importance of the personal element in reasoning about evidence. The emergence of a vast literature in the 1960s and 1970s supporting the