Evidence Law Adrift.

• Author: Friedman, Richard D.

Evidence Law Adrift. By Mirjan R. Damaska. New Haven: Yale University Press, 1997. Pp. x, 160. $27.50.

Difference, as well as distance, yields perspective. A comparison of legal systems may search for common underlying principles, or for lessons that one system might learn from another. But it may also be aimed primarily at illuminating one system by light shed from another. This is the aim of Evidence Law Adrift,(1) Mirjan Damaska's elegant study of the common law system of evidence, and he is ideally suited for the task. Born and schooled in Continental Europe, he has lived and taught in the United States for twenty-five years. His relation to the common law system of evidence is, I suspect, much like his relation to the English language: He has come to both relatively late, bringing with him a distinctively European sensibility. Consequently, rather like the person who speaks a foreign language with painfully correct grammar, he may take the rhetoric of Anglo-American evidence law somewhat too seriously. But in most respects he is as much a maker of the evidentiary system of the common law as he is of its language, which is saying a great deal. Although Damaska disclaims an ambition to "break much new ground"(2) or offer "great epiphanies,"(3) he hopes that his "comparative looking glass"(4) will unveil "unfamiliar horizons."(5) He succeeds very well.

Indeed, all in all this is an excellent book. It is brief, enormously broad in scope, and very specific in its attention to a multitude of issues. Writing a book with two of these traits is not particularly difficult, but getting all three together is exceedingly so. Damaska succeeds in part because his writing, while marked by great flair, is quite terse. He sprinkles the page with metaphors and, rather too liberally, foreign language phrases. But these do not take up too much space, and he exercises excellent judgment in including no more detail than is necessary to make his points. He has a nice touch for briefly and lucidly summarizing major procedural systems, differences, and trends. The result is a book that is rich and concentrated without feeling dense; it can be read quickly, but it rewards close, note-taking, margin-filling study.

So just imagine what nice things I might say if I agreed with more of Damaska's main argument. Damaska identifies three features of the common law evidentiary system that, from a Continental perspective, stand out as characteristic: "the complexity of common law regulation; a preoccupation with sifting the material for the factfinder to hear and see; and an aspiration to structure the analysis of evidence."(6) He then analyzes in considerable depth three "supporting pillar[s]"(7) of the system, which he believes account in large part for these features. These pillars are "the peculiar organization of the trial court; the temporal concentration of proceedings; and the prominent roles of the parties and their counsel in legal proceedings."(8) According to Damaska "[c]racks have . . . appeared in all three."(9) The lay jury, the most distinctive aspect of the Anglo-American trial court, is shrinking in importance;(10) greatly expanded discovery procedures have lessened the degree of temporal concentration in legal proceedings;(11) and even the adversary system, which relies heavily on the parties and their counsel to discover, assemble, and present evidence, is undergoing strain as both the role of the judge and the consequences of litigation to third parties become greater.(12) Because they undermine the rationale for much of evidentiary law, these "changes of the institutional milieu"(13) are responsible in large part for the recent surge of evidentiary reforms throughout the common law world. They are also responsible for a general state of dissatisfaction: "[D]octrines and practices heretofore invested with meaning now increasingly appear as mere technicalities--legal rituals devoid of deeper sense."(14)

Though a historian of great breadth and ability,(15) Damaska consciously takes a primarily analytical, rather than historical, approach in Evidence Law Adrift.(16) He analyzes his three supporting pillars at some length, but in a rather time-detached way; the pillars do not stand today as he first describes them, and only toward the end of the book does he address how recent changes undermine them.(17) The structure makes the book readily accessible, but it does have flaws. It suggests that there is a static thing, the classical common law of evidence, that fit the institutions of an earlier day, but that those institutions have now changed. In fact, the picture is far more dynamic; the institutions have always been in flux and so too (whether in good time or not is another matter) has the law of evidence. The book's structure also shrouds values of enduring importance that come into sharper relief when viewed over a perspective of time.

I would not think of challenging Damaska on how the Anglo-American system appears from a Continental perspective, but I can assess whether his description accurately captures the system with which I am familiar. In Part I of this Review, therefore, I discuss two of the features that Damaska identifies as characteristic of the common law system of evidence:(18) its tendency to limit the evidence available to the factfinder, and its goal of structuring the analysis that the factfinder performs. I believe his characterization is accurate in some respects but not in others. In analyzing the first characteristic, I generally place less weight than Damaska does on the goal of ensuring factual accuracy. And, regarding the second characteristic, I believe that the picture Damaska presents is considerably overdrawn.

More broadly, I believe that Damaska's description of the common law system is incomplete. Thus, in Part II, I temporarily take the agenda from Damaska turning to certain aspects of the common law system that I believe he underemphasizes and that explain a great deal of Anglo-American evidentiary law. I discuss especially the significance of a concept of individual rights that--especially in its American variant and especially as it favors a criminal accused--is different from, and generally stronger than, its counterpart in Continental systems. An ideological commitment to individual rights is crucial not only to many common law evidentiary doctrines, but also to the institutional factors that lie at the heart of Damaska's study. I also discuss two other factors that are to some extent subsidiary to this rights orientation: the Anglo-American tendency to legalize evidentiary issues, seeking to the extent feasible uniform results across cases; and an intellectual style that values analytical soundness far more than it does theoretical or practical simplicity.

In Part III, I return to Damaska's agenda, examining the institutional pillars on which he concentrates. I believe the factors I discuss in Part II, especially the Anglo-American system's individual rights orientation, help to explain both much of the common law system of evidence and, to a significant extent, the institutional pillars themselves. Indeed, I suggest that the institutions cannot be taken as exogenous, or prior to, the system; on the contrary, if the institutions do not serve the values expressed in the larger system, they will tend to change over the long term. Thus, I contend that, although Damaska's perceptions are insightful, he accords somewhat too much weight to the institutional pillars. Even if the pillars were removed altogether, there would still be solid grounds--rooted especially in its individual rights orientation--for much of the Anglo-American law of evidence.

Part IV addresses the prospects for future change that Damaska discusses. Damaska is presumably correct that institutional changes will help to cause doctrinal changes. But this is neither a recent development, nor one that should be feared. Indeed, to some extent, evidence law always has been, and always should be, "adrift"; at the same time, the individual rights orientation of the common law system has for centuries acted as an anchor for evidentiary and procedural law. Accordingly, I suspect that the current institutional changes that Damaska addresses will be less drastic and have less impact than Damaska believes. And that is as it should be. Some aspects of evidentiary law correspond to our deeply held notions of the rights of individuals and are worth preserving.

1. CHARACTERISTICS FEATURES AS VIEWED FROM WITHOUT

   In this part, I analyze two of the features that Damaska identifies as characteristic of the Anglo-American system: its "Preoccupation with sifting the material for the factfinder to hear and see" and its "aspiration to structure the analysis of evidence."(19) I agree with him that the Anglo-American system has a strong prophylactic orientation, although I cast that orientation somewhat differently. I disagree for the most part with his assertion that the common law system aspires to structure the factfinder's analysis of evidence.

   1. Prophylactic Orientation

      As Damaska indicates, "Virtually all observers agree that the intense preliminary screening of evidence constitutes a salient trait of the Anglo-American factfinding style."(20) Damaska believes that the perceived difference between systems in this respect is "a gross exaggeration,"(21) and he shows that extrinsic evidentiary rules--those "rejecting probative information for the sake of values unrelated to the pursuit of truth"(22)--are present in the Continental system as well. Yet, he does not dispel the idea that such rules are generally more pervasive and significantly stronger, both in consequences and in probability of gaining compliance, in the common law world than in Continental Europe.(23)

      Damaska contends that "only a small subset of exclusionary rules is truly idiomatic to the common law"(24)--intrinsic rules, "those that reject probative...