ABSTRACT
The conventional function of evidence law is to control the information which can be received by a court, the form(s) in which information is presented and the use(s) to which information is put. However, the power of evidence law reaches beyond the confines of the adversary trial, as recognised by recent evidence scholarship which considers ‘the way information is processed by all participants throughout the litigation process and not just during adjudication.’2 Specifically, evidence law influences resolutions without trial in direct practical ways and more subtly as part of law’s general constitutive power. By controlling what is accepted as proof, evidential regimes reflect and construct the social and cultural context in which they function.3 In this sense, evidence law, whether operating within or beyond the trial, is a manifestation of the epistemological power of the legal system to determine what counts as knowledge.4
