This book examines systematically the underlying theory of evidence in Anglo-American legal systems and identifies the defining characteristics of adjudicative fact-finding. The book develops an innovative theory which sets aside the traditional vision of evidence law as facilitating the discovery of the truth. Combining probability theory, epistemology, economic analysis, and moral philosophy it argues instead that the fundamental purpose of evidence law is to apportion the risk of error in conditions of uncertainty. The book begins by identifying the domain of evidence law. It then describes ... More

This book examines systematically the underlying theory of evidence in Anglo-American legal systems and identifies the defining characteristics of adjudicative fact-finding. The book develops an innovative theory which sets aside the traditional vision of evidence law as facilitating the discovery of the truth. Combining probability theory, epistemology, economic analysis, and moral philosophy it argues instead that the fundamental purpose of evidence law is to apportion the risk of error in conditions of uncertainty. The book begins by identifying the domain of evidence law. It then describes the basic traits of adjudicative fact-finding and explores the epistemological foundations of the concept. This discussion identifies the problem of probabilistic deduction that accompanies generalizations to which fact-finders resort. The book advances the principle of maximal individualization that does not allow fact-finders to make a finding against a person when the evidence they use is not susceptible to individualized testing. This analysis identifies allocation of the risk of error as requiring regulation by evidence law. Advocating a principled allocation of the risk of error, the book denounces free proof for allowing individual judges to apportion this risk as they deem fit. The book then develops three fundamental principles for allocating the risk of error: the cost-efficiency principle which applies across the board; the equality principle which applies in civil litigation; and the equal best principle which applies in criminal trials. Regulating both the admissibility of evidence and its sufficiency, these principles explain and justify many existing evidentiary rules.