The Technical Aspects of Technicality: A Slightly Whimsical Inquiry into What Makes a Rule of Evidence or Procedure ‘Technical’

This article explores the meaning of the word ‘technical’ in the context of rules of evidence and related procedural rules. It concludes that the meaning of the term has been obscured by the tendency of advocates to use it as an umbrella term for a variety of complaints about the application of rules, and as a forensic device for avoiding specificity about those complaints. It concludes that a charge of technicality is generally attributable to the perception that a rule does not advance the merits of the case; or serves no useful purpose; and is in any case insufficiently flexible to be adapted satisfactorily to the needs of particular cases.