Presentation of Evidence and Factfinding Precision

Abstract

For at least a century a debate has been raging about the relative advantages of the adversary and nonadversary presentations of evidence as tools in the quest for the truth. Most of the time this debate proceeded in a mild sfumato of conceptual ambiguity: Differences in the styles of developing evidence were often conflated with differences in arrangements concerning the collection of evidence, admissibility rules, and similar related issues. Beyond that, until quite recently, the arguments advanced were speculative, and information was exclusively in the form of impressions and intuitive insights. In our age, so enamoured of scientific methodology and so desirous of replacing "soft" by "hard" data, the question almost naturally arises: can at least some themes involved in the debate be translated into a form susceptible of empirical analysis? If the answer is in the affirmative, perhaps products of disinterested science can replace our prejudice, parochialism, and irrational attachments to existing arrangements, no matter how "efficient" these existing arrangements may be. In the present Article I propose to express my reflections on this subject, reflections that were stimulated by a piece of research presented in a series of recent, thought-provoking empirical studies.