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95 Nw. U. L. Rev. 399 (2000-2001)

handle is hein.journals/illlr95 and id is 409 raw text is: Cepyight 20D0 by Northwestern Univesity School of Law P I,' 0 USA Northwestern Univemity Law Review Ve! 95. Na I JURIDICAL PROOF, EVIDENCE, AND PRAGMATIC MEANING: TOWARD EVIDENTIARY HOLISM Michael S. Pardo* To start with he spoke desultorily, apparently without any fixed plan, choosing facts at random, but it all merged into a unified whole in the end. -FYODOR DOSTOYEVSKYI ... and in fiction the merely true must always yield to the plausible. -JOHN BARTH2 I. INTRODUCTION Trials by ordeal and compurgation have long given way to trials by ju- ries and judges This shift reflects the enlightened position that justice re- quires truth, or more precisely, that adjudication requires accurate depictions of what occurred.4 The trial has developed into a condition of a decent society, and we cannot overemphasize its importanceS Given the trial's importance and its goal of accurate fact-finding, it follows that a pri- mary focus of the legal community should be an inquiry into the nature of accurate fact-finding.6 Unlike most other areas of lefal scholarship, how- ever, the field of evidence is largely undertheorized. . Illinois Wesleyan University, B.A., 1998; Northwestern University, J.D., expected 2001. i would like to thank Ronald Allen, Robert Bums, and Elizabeth Mertz for their invaluable comntilts, 5upgestions, and support in the development of this paper and its previous drafts. I would also like to thank Leonard Clapp for his previous guidance on, and teaching of, many of the philosophical issues discussed herein. I TIHEBROTHERS KARANAZOV 912 (Ignat Avsey trans., Oxford University Press 1993) (1880). 2 Lost in the Funhouse, in LOST IN THE FUNHOUSE 93 (1968). 3 See ARTHUR L GOODHART, The Hue and Cry. the Feud. Ordeal and Compurgation, in THE LAW OF THE LAND 1-4 (1966). Practiced in the Middle Ages and the period following, trials by compurgation involved the determination of an accused's guilt or innocence by how many members in the community he could get to recite a formal oath successfully. Trials by ordeal involved, more arcanely, adjudication based on burning or drowning the accused, with results purported to be the will of God. See ld: sea also LEONARD NV. LEVY, THE PALLADIUM OF JUSTICE: ORIGINS OF TRIAL BY JURY (1999). 4 See GOODHART, supra note 3, at 15. 5 See ROBERT P. BURNS, A THEORY OF THE TRIAL 244 (1999). 6 1 assume that accurate fact-finding is the primary goal of the trial. Sea IA JOHN HENRY WIGMORE, WIGMORE ON EvIDENCE § 37.1, at 1018 (Peter Tillers rev. 1983) ('Most theorizers share the assumption that accurate factfinding should be the central purpose of the law of evidence:); Ronald J. Allen, Truth 399

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