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Free Proof and Its Detractors, 43 American Journal of Comparative Law 343 (1995)


The idea that the law should not assign probative weight to items of information, or degrees of credibility to its bearers, is widely extolled as one of the cornerstones of enlightened factfinding in adjudication. Despite momentous changes that have occurred in the administration ofjustice in this century, the idea continues to command widespread allegiance - especially in the area of criminal procedure. This is not to say, however, that no challenges appeared to the idea in recent years. The first challenge stems from the increased employment over the past few decades of exclusionary rules of evidence. Their application generates frequently overlooked strains with the factfinder's freedom in analyzing evidence. The second challenge is posed by socio-cultural ramifications of technological and scientific advances made in this century. Although for the most part only latent, this second challenge is potentially quite serious and far-reaching. As we near the next millennium, the question is thus worth asking whether free proof is still as firmly entrenched in justice systems as it appears on the surface of things - even in the stronghold of free proof rhetoric, that is, iIi criminal procedure.

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