Given the nature of my enterprise, I resist stating a specific thesis. Nevertheless, for the reader who wants an organizing or motivating principle, I offer the following two recurrent themes. First, I want to examine the relationship of traditional admissibility rules to the problem of missing evidence and to other forms of juridical response to that problem. The reason for this interest will be explained in the next section. Second, I want to investigate, as we proceed, the extent to which the regulation of proof, evidence law broadly conceived, is instrumentally related to accuracy or truth seeking, and the extent to which it is a function of other concerns not demonstrably parasitic upon the accuracy criterion. The problem of missing evidence presents a useful vehicle for examining this question. My leaning, as will be evident, is toward the former, instrumentalist conception, without wanting to deny entirely the role of the latter. I will not offer here a sustained argument to that effect, for that is not my present purpose. I intend to provide such an argument in future work.
Place of Original Publication
Cardozo Law Review
13 Cardozo Law Review 831 (1991)
Nance, Dale A., "Missing Evidence" (1991). Faculty Publications. 289.