Extract
On the supposed jury-dependence of evidence law.
If there were no juries, would there be a law of evidence? And should there be? These questions are not about whether this or that rule of evidence owes its existence to the institution of the jury, and are thus not about whether particular evidence rules should be modified or eliminated when juries are not present. Nor are they about those many rules of evidence that are premised on such wildly mistaken folk wisdom about jury behavior that they are in desperate need of modification or elimination in light of what we now know from the social sciences about how people in general and juries in particular actually decide and deliberate. Rather, my question is whether the law of evidence, in the large, is so substantially a product of the institution of the jury itself that if juries did not exist, then vast swaths of evidence law would, and should, not exist as well.
This question is not merely of academic or historical interest. Numerous American trial judges, echoing what scholars since Jeremy Bentham have urged, (1) essentially discard large chunks of the law of evidence when they sit without a jury. (2) Time and again, especially in civil litigation and more than occasionally even in criminal cases, objections to the admissibility of evidence are met with the judicial response of, "I'll let it in and just give it the weight it deserves." (3) Because most of the rules of evidence are essentially exclusionary, and because judges (like the rest of us) do not want to screen themselves off from potentially useful information, many judges persistently treat the law of evidence as a counterproductive encumbrance to be jettisoned whenever possible Indeed, there are frequent calls in the academic literature to make formally and legally permissible what all acknowledge to be the widespread informal practice. (4) But are these trial judges and their academic forebears right? Is the law of evidence, which owes an appreciable part of its provenance to a concern about the cognitive or decision-making capacities of jurors, (5) appropriately limited to the circumstances of its birth? When juries are removed from the picture, should much of the law of evidence be removed as well? Although rarely put in such stark terms, that conclusion reflects the conventional wisdom. (6) Yet while this may be the conventional wisdom, my aim here is to ask whether the conventional wisdom is correct and to suggest some reasons for believing that it is not. In asking this question about the foundations of evidence law, I take it as common ground that those rules of evidence serving extrinsic goals present almost wholly different issues from the ones I discuss here. Privileges, for example, do not purport to serve epistemic goals, (7) and even those judges and commentators who question the need for juror-free evidence law typically have little problem with excluding properly privileged evidence--such as confidential conversations between spouses (8) between lawyer and client (9)--even when juries are absent And so too with various other rules--such as the inadmissibility of evidence of subsequent repairs and other remedial measures to prove negligence or other culpable conduct, (10) of liability insurance, (11) and of plea bargain (12) and settlement negotiations (13)--that are designed to create the proper incentives for socially desirable out-of-court conduct. Such rules are the exception, however, and most of the exclusionary rules are designed with the jury in mind and with the goal of increasing the accuracy and efficiency of fact finding under circumstances of jury decision making. In other words, they are (internally) epistemic and not extrinsic. Such rules comprise the bulk of evidence law and furnish its guiding inspiration, and it is such rules that are so often assumed to be largely jury dependent. (14) My aim here is to question this assumption, not in terms of its historical accuracy, but in terms of the goals that the rules of evidence might now be properly thought to serve. I. THE SKEPTICAL TRADITION Interestingly, the entire law of evidence is a relatively modern creation. Although the exclusion of hearsay and rudimentary corroboration requirements are at least as old as the common law itself, the identification of evidence as a distinct legal realm and as a unified body of law postdates the law of, say, property, by at least several hundred years. There was no systematic attempt to compile the various bits and pieces of evidentiary rulings into a distinct topic until well into the eighteenth century. (15) So when Jeremy Bentham launched his attack on virtually the whole idea of evidence law in the early nineteenth century, (16) it is fair to say that he was trying to nip what he saw as a dangerous weed in the bud, as opposed to attempting to dismantle a long-standing edifice. (17) Bentham is of particular interest to us because he framed the issue in a way that leaves no doubt about what is at stake. For Benth...See the full content of this document
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