1 Heydon, J., Evidence: Cases and Materials (2nd ed., 1984) 3 Google Scholar.

2 Twining, W.L., Rethinking Evidence (1990) 197 Google Scholar.

3 See REL, 322-342.

4 See Bentham, J., Rationale of Judicial Evidence, vol. V, (1827) 477–494 Google Scholar; Chamberlyne, C.F., “The Modern Law of Evidence and Its Purpose”, (1908) 42 Am. L.R. 757 Google Scholar; Hand, Learned, “The Deficiencies of Trials to Reach the Heart of the Matter”, in Lectures On Legal Topics, 1921-1922 (1926) 89, at 96–104 Google Scholar; Wigmore, J. H., A Treatise on The Anglo-American System of Evidence in Trials at Common Law (3rd ed., 1940) §8c Google Scholar (endorsing many of Bentham's claims, but not supporting a wholesale abolition of evidentiary rules); Davis, K.C., “An Approach to Rules of Evidence for Non-Jury Cases”, (1964) 50 A.B.A.J. 723, at 726 Google Scholar; Davis, K.C., Administrative Law Treatise (1980) §16: 2 Google Scholar. For discussions of this idea see Twining, W.L., Theories of Evidence: Bentham and Wigmore (1985)Google Scholar and Lewis, A.D.E., “The Background to Bentham on Evidence”, (1990) 2 Utilitas 195 CrossRefGoogle Scholar.

5 I use the terms ‘judges’ and ‘judicial’ generically, as referring both to judges and jurors.

6 Procedural justice is not invariably treated as instrumentalist. To certain procedural arrangements, such as the right to be heard and present evidence, people may be entitled deontologically. This may explain, for example, the accused's right to cross-examination, when the admissibility of a testimony incriminating him is conditioned upon providing him an adequate opportunity to exercise this right. Evidence excluded under this condition would be excluded not because it is devoid of probativity; it would be excluded because to force a person into a criminal trial without providing him a fair opportunity to confront adverse witnesses is devoid of political warrant. Findings that could be made on the basis of unexamined testimonial accounts could be accurate, but their accuracy is not the issue. The issue is whether the community where criminal trials are allowed to be conducted without full participation of the accused is politically attractive. See Summers, R., “Evaluating and Improving Legal Process — A Plea for ‘Process Values’”, (1974) 60 Cornell L.R. 1 Google Scholar; Bayles, M.D., “Principles for Legal Procedure”, (1986) 5 Law & Phil. 33 CrossRefGoogle Scholar. As pointed out by Lawrence Tribe: “The right to be heard from, and the right to be told why, are analytically distinct from the right to secure a different outcome; these rights to interchange express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one. … For when the government acts in a way that singles out identifiable individuals — in a way that is likely to be premised on suppositions about specific persons — it activates the special concern about being personally talked to about the decision rather than simply being dealt with”. Tribe, L., American Constitutional Law (1978) 503–504 Google Scholar. There is, however, a good reason to be skeptical about freestanding procedural rights. Let it be assumed, counterfactually, that there is no epistemic fallibility problem and that we live in a world of infallible judges. Would there be room in this world for procedural rights that are valuable intrinsically rather than instrumentally? I believe this question should be answered in the negative. If so, the right to be heard seems to be related more closely to our epistemic fallibility than it is related to our moral virtuousness.

Procedural rights may also be taken (rather exotically) as a source of some indispensable psychological satisfactions. See, e.g., Leonard, D., “The Use of Character to Prove Conduct”, (1986–1987) 58 U. Colorado L.R. 1 Google Scholar (offering a catharsis-based explanation to the right to adduce evidence highlighting one's character). It is, however, an empirical question whether they are actually taken in this way. Whether the taxpayers' subsidy of litigation should cover also psychological (or otherwise ritualistic) satisfactions of the litigants is another question casting serious doubts upon the “freestanding rights” approach.

7 Thayer, J.B., A Preliminary Treatise on Evidence at the Common Law (1898) 314 Google Scholar n.

8 Cohen, L. J., “Freedom of Proof”, in Twining, W.L. (ed.) Facts in Law Google Scholar, (1983) 16 A.R.S.P. 1, at 21 Google Scholar.

9 Cf. Raz, Joseph, The Morality of Freedom (1986) 181 Google Scholar.

10 This refers to a “strong discretion”, according to the taxonomy developed by Dworkin, R., Taking Rights Seriously (1977) 31–39 Google Scholar.

11 Cohen, supra n. 8, at 10ff.

12 See Cohen, L.J., The Probable and the Provable (1977)CrossRefGoogle Scholar ch. 24. For further discussion of this assumption, see Twining, supra n. 2, at ch. 4. For its challenges based upon cognitive theory, see Kahneman, D., Slovic, P. & Tversky, A. (eds.), Judgment Under Uncertainty: Heuristics and Biases (1982)CrossRefGoogle Scholar. For its recent legal-philosophical challenges, see Nicolson, D., “Truth, Reason and Justice: Epistemology and Politics in Evidence Discourse”, (1994) 57 M.L.R. 726 CrossRefGoogle Scholar; Seigel, M.L., “A Pragmatic Critique of Modern Evidence Scholarship”, (1994) 88 NW. U. L. R. 995 Google Scholar.

13 Stein, REL, at 296ff.

14 See Nance, D., “The Best Evidence Principle”, (1988) 73 Iowa L. R. 227, at 229; 240 Google Scholar.

15 See Federal Rule of Evidence (USA) (thereafter: FRE) 401; Montrose, J.L., “Basic Concepts of the Law of Evidence”, (1954) 70 L.Q.R. 527 Google Scholar; Lempert, R., “Modeling Relevance”, (1977) 75 Mich. L.R. 1021 CrossRefGoogle Scholar; P. Tillers, “Modern Theories of Relevancy”, in Wigmore, supra n. 4, vol. 1A (Tillers Revision, 1983) §37.

16 For full argument, see Stein, REL.

17 Stein, REL.

18 Scholars paying less attention to the risk-of-error problem may still favor (wrongly, in my opinion) the demolition of formal structures in the area of evidence law. See, e.g., Damaska, M.R., Evidence Law Adrift (1997)Google Scholar. Those who adopt Bentham's utilitarian approach, which perceives the law of procedure and evidence as aiming solely to maximize the amount of correct decisions, would also support evidential discretionism. Because facts of each case are unique, particularized rulings on evidentiary matters will promote decisional accuracy far better than general rules. The utility principle will thus allow the risk of error to be allocated by judges, with no immunities granted to individual litigants. As for the risks regarded as especially harmful, such as conviction of an innocent person, they should be avoided — each risk individually — on utilitarian grounds. See Postema, G. J., Bentham and the Common Law Tradition (1986) 341–357; 403–408 Google Scholar; Twining, W.L., Theories of Evidence: Bentham & Wigmore (1985) 47ffGoogle Scholar., 98-100.

19 In civil cases, missing evidence may be left unaccounted for, if its absence cannot be attributed to one of the parties in dispute. This will allocate the risk of error in a roughly equal fashion. See Porat, A. & Stein, A., “Liability for Uncertainty: Making Evidential Damage Actionable”, (1997) 18 Cardozo L.R. 501 Google Scholar.

20 See Cohen, L. J., “The Role of Evidential Weight in Criminal Proof”, (1986) 66 B.U.L.R. 635, at 636–37Google Scholar.

21 Keynes, J. M., A Treatise on Probability (1st ed., 1921) 77 Google Scholar.

22 Keynes, ibid., at 77, 84.

23 See Stein, A., “Judicial Fact-Finding and the Bayesian Method: The Case for Deeper Scepticism About their Combination”, (1996) 1 Int. J. Evidence & Proof 25 CrossRefGoogle Scholar.

24 Such arguments have been labeled and dealt with as “transforming arguments” in Stein, REL.

25 See Twining, supra n. 2, at chs. 3 & 4.

26 The term ‘ampliative induction’ is taken from Cohen, L.J., An Introduction to the Philosophy of Induction and Probability (1989) 1–4 Google Scholar.

27 See Cohen, ibid., at §1.

28 See Stein, REL, at 309-311.

29 For discussion of the same issue with regard to civil cases, see Stein, REL, at 333-342.

30 See FRE 801. For a broader definition, adopted in England, see Wright v. Doe d. Tatham (1837) 7 A & E 313; R. v. Kearley [1992] 2 All ER 345.

31 In Israel, such statements would usually be admissible under sec. 10A of the Evidence Ordinance [New Version] 1971.

32 Those that are based upon functionally equivalent substitutes to cross-examination, which would secure the testability of the disputed statement: see Swift, E., “A Foundation Fact Approach to Hearsay”, (1987) 75 Calif. L.R. 1339 CrossRefGoogle Scholar.

33 See Stein, REL, at 312-316. Hebrew speakers will find more on this issue in Stein, A., “Hearsay Statements as Evidence in Criminal Trials: ‘Is’ and ‘Ought’”, (1992) 21 Mishpatim 325 Google Scholar, and in Stein, A., “The Admissibility of Out-of-Court Statements as Evidence in Criminal Trials: On the New Bill, New Ideas, and the Same Old Tenets”, (1993) 10 Mechkarei Mishpat 157 Google Scholar.

34 Frye v. United States 293 F. 1013 (1923).

35 See Giannelly, P.C., “The Admissibility of Novel Scientific Evidence. Frye v. United States: A Half-Century Later”, (1980) 80 Colum. L.R. 1197 CrossRefGoogle Scholar.

36 Daubert v. Merrell Dow Pharmaceuticals Inc., 113 S. Ct. 2786 (1993).

37 The Supreme Court had seemingly adjudicated the notorious Popper-Kuhn controversy in the philosophy of science favorably to Karl Popper. See ibid., at 2796-2797.

38 Ibid., at 2797. For a revealing discussion of the problems posed by Daubert, see Allen, R.J., “Expertise and the Daubert Decision”, (1994) 84 J. Crim. L. & Criminology 1157 Google Scholar.

39 See Zuckerman, A.A.S., The Principles of Criminal Evidence (1989) 62–69 Google Scholar.

40 See, e.g., Aflalu v. State of Israel, (1980) 34(iii) P.D. 56; Brooks v. State of Israel, (1989) 43(iii) P.D. 441.

41 Because judges are both institutionally and de facto incompetent to resolve scientific controversies, they can only defer to experts. See Allen, supra n. 38; Zuckerman, supra n. 39, at 63-64.

42 For another skeptical view concerning the applicability of Daubert to evidence incriminating the accused see Berger, M.A., “Procedural Paradigms for Applying the Daubert Test”, (1994) 78 Minn. L.R. 1345, at 1352–1363 Google Scholar. Unlike myself, Professor Berger stops short of arguing that Frye should be reinstated for this limited (but evidently important) purpose.

43 See Nance, supra n. 14. Cf. Seigel, M.L., “Rationalizing Hearsay: A Proposal for a Best Evidence Hearsay Rule”, (1992) 72 B. U. L.R. 893 Google Scholar (a more radical proposal to replace the hearsay rules by a broad best evidence principle).

44 This approach is taken by the Israeli Law of Criminal Procedure [Consolidated Version], sec. 162. In the United States, this approach would require an abolition of Griffin v. California, 380 US 609 (1965).

45 Provided that his actions against the witness have been proven beyond reasonable doubt (as required, e.g., in England, in R. v. Acton Justices, Ex Parte McMullen and others; R. v. Tower Bridge Magistrates' Court, Ex parte Lawlor, 92 Cr. App. Rep. 98, 104 (1991)). In the US, admissibility conditions can be proven by a mere preponderance of the evidence: see Bourjaily v. United States, 483 US 171 (1987); Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796, n. 10 (1993). Generally adequate, this rule should become more differentiated. My proposal largely corresponds to FRE 804(b)(6) and to the argument made by Friedman, R.D., “Confrontation and the Definition of Chutzpa”, in this issue on p. 506 Google Scholar (except for the standard of proof requirement, which, under the American law and on Friedman's account, is considerably less exacting). In Israel, the disputed statement would be admitted under even less stringent conditions set by sec. 10A(b) of the Evidence Ordinance [New Version] 1971.

46 Cf. State of Connecticut v. Skipper, 637 A. 2d 1101 (1994).

47 See Stein, REL, at 322-342.