ABSTRACT
Evidence scholarship has traditionally suffered from all the ills that derive from legal positivism and its even more problematic child, legal formalism. Thus, until relatively recently it has concentrated almost exclusively on evidentiary rules which provide exceptions to the general notion of ‘free proof’.1 Moreover, in focusing on these exclusionary rules, evidence scholars have also suffered from what William Twining calls ‘appellate court-itis’2 and, more fundamentally, by what might be called ‘black-letter syndrome’. Accordingly, they have concentrated on formal legal doctrine laid down by the superior courts rather than the day to day reality of fact-handling in the lower courts, in negotiations, pre-trial procedures, and by various other actors in the legal process, such as the police, probation officers and administrative officials.
