THE USE OF OUT-OF-COURT INFORMATION IN FACT DETERMINATION AT TRIAL
AbstractThis article examines the fact determination process and how this process exemplifies the inherent tension between the search for truth and the integrity of the adversary procedure. The author argues that at trial, the primary consideration should be the search for the truth, and that due to judicial emphasis on ensuring the integrity of the adversary procedure and manifest fairness, Anglo-Canadian courts have not made adequate use of devices that would allow for a more accurate telling of the truth. If used in a proper manner, argues the author, such devices can be appropriately used to ensure the proper balance of the historic compromise.
Keywords:Civil Procedure, Evidence
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