The plausibility of evidentiary regimes depends on more
basic understandings of the nature of the trial. 'Tough-
minded" evidence scholars may sometimes be reluctant to
concede the importance of more "tender-minded"
normative inquiries into the trial. Some implicit ideals of
evidence law, such as factual accuracy, are relatively
constant among theories of the trial, while others, such as
materiality, are significantly affected by the choice among
competing theories. This Article identifies the dominant
theory of the trial and then suggests an alternative. It
then offers a number of grounds for further relaxing the
exclusionary force of evidence law and for strengthening
its "parliamentary" function of imposing order and
discipline on the trial. Finally, it offers some concrete
examples of what an evidence law that performed a
parliamentary, but not an exclusionary, function would
Burns, Robert P.
"The Withering Away of Evidence Law: Notes on Theory and Practice,"
Georgia Law Review: Vol. 47:
3, Article 4.
Available at: https://digitalcommons.law.uga.edu/glr/vol47/iss3/4