Evidence Law Adrift.

AuthorPark, Roger C.

Evidence Law Adrift. By Mirjan R. Damaska. New Haven: Yale University Press, 1997. Pp. x, 158. $27.50.

If the discovery of truth be the end of the rules of evidence, and

if sagacity consist in the adaptation of means to ends, it appeared

to me that, in the line of judicature, the sagacity displayed by the

sages of law was as much below the level of that displayed by an

illiterate peasant or mechanic in the bosom of his family, as, in the

line of physical science, the sagacity displayed by the peasant is to

the sagacity displayed in the same line by a Newton.(1)

There have been improvements since Bentham's jeremiad. But Anglo-American evidence law is still puzzling. It rejects the common-sense principle of free proof in favor of a grotesque jumble of technicalities. It has the breathtaking aspiration of regulating inference by rule, causing it to exalt the foresight of remote rulemakers over the wisdom of on-the-spot adjudicators. It departs from tried-and-true practices of rational inquiry, as when it prohibits courts from using categories of evidence that are freely used both in everyday life and in the highest affairs of state. Sometimes it seems to fear dim light more than deep darkness, as when it tells judges to exclude hearsay even though the declarant cannot possibly give live testimony. At times it treats jurors as fools or bigots; at others it venerates them as sages. To top it all, evidence law's greatest scholars have been among its strongest debunkers.

The institutional context in which evidence law operates partly explains and partly justifies its approach to factfinding, as scholars and judges have recognized. Many of them subscribe to Thayer's view that evidence law is the "child of the jury system,"(2) and that exclusionary rules are needed to protect the jury against cognitive shortcomings. Others have thought of evidence law mainly as the child of the adversary system, viewing exclusionary rules as an attempt to achieve adversarial fairness -- a game with even chances -- or to overcome or prevent adversarial distortions of truth.(3) Still others have explained its peculiarities as stemming from a desire to purify courts of perjury and fabrication,(4) or as an attempt to achieve public acceptance of verdicts whatever their accuracy.(5) Of course, these theories can be combined.(6)

Mirjan Damaska's Evidence Law Adrift(7) is a major addition to the literature of explanation and critique. Damaska brings an outsider's view -- the perspective of one trained in Continental law -- to the question why Anglo-American factfinding is "so peculiar" (p. 2). He applies an "analytical and interpretive" approach, one that mainly attempts to identify current justifications rather than historical causes (p. 3). In doing so, he separates Anglo-American institutions that evolved as a single organism -- such as the bifurcated judge-jury system -- into distinct elements. He then examines each element, testing the current support that it gives to the edifice of evidence law. Damaska's adroitness at isolating procedural features for separate analysis and at contrasting them with their Continental counterparts helps common law scholars see their system in a new light. He has written a book that every evidence scholar should read, and that will be helpful to anyone interested in trials and court procedure.

  1. THE THREE PILLARS

    Damaska identifies three pillars of the common law of evidence: the bifurcated judge-jury system, the temporal concentration of proceedings, and the party-dominant adversary system. These three features, present in a much stronger and more pervasive form in Anglo-American systems than in Continental systems, are the necessary support for many of the common law rules of evidence. They are especially useful in explaining the otherwise puzzling intrinsic rules (like the hearsay rule) that purportedly protect the factfinder against misdecision. Damaska concludes that the American law of evidence is eroding because these pillars are crumbling.

    He agrees with the widespread view that jury trial is important, but parts with convention in his analysis of the source of its importance (pp. 26-57). He dissects jury trial in a way that invites us to see the centrality of features that are often neglected or taken for granted. He points out that the participation of lay factfinders is not, in itself, an explanation for evidence rules (pp. 30-33). Amateurs would use heuristics and strategies from ordinary life, not rules of evidence. Even the infusion of professional judges would not create a need for rules of evidence, so long as judges and jurors deliberated together, as in Continental environments in which lay factfinders work with professionals (pp. 26-29).

    Damaska gives little credit to the argument that jurors need to be protected from their own cognitive shortcomings (pp. 29-33). Though this concern helps explain the origin of evidence rules, in order to justify them one must also show that the excluded classes of information have a greater potential to skew lay than professional judgment. There is no reason to believe jurors are less able than judges to assess the weight of hearsay, or are more vulnerable to the temptation of propensity inferences. Even for statistical and scientific evidence, the average trial judge may be as baffled by complexity' as the average trial juror. At any rate,, it is inconsistent to claim that jurors have cognitive shortcomings and at the same time expect them to follow complicated limiting instructions.

    Damaska's debunking of this rationale of evidence law is often persuasive, but occasionally he seems to yield to a debater's temptation to push a point too hard. True, there is little reason to think that judges are better equipped to handle hearsay or character evidence than jurors. But to say that judges 'will be as baffled as jurors by novel scientific evidence seems to deny the value of general education.(8) At any rate, judges do believe that they know more than jurors. Their conduct is undeniably influenced by the fact that jurors are neither lawyers nor experts. Were the other half of the split tribunal a scientific panel or a fellow judge, the evidence screener would be much less likely to create barriers. As might be expected from an author convinced of the importance of neglected features, Damaska's nod to more pedestrian explanations is a somewhat grudging one (pp. 30-31, 128).

    Having minimized the most obvious evidence-related feature of jury trial, Damaska turns to other aspects that might escape notice when thinking about reasons for evidence law. Consider the cryptic, unexplained verdict, which is anathema on the Continent but a nearly unavoidable feature of the Anglo-American jury trial. It is not practical to ask lay jurors to write findings that justify their decisions, but because of the absence of such findings, jury verdicts suffer from a legitimacy deficit. The common law handles this deficit by allowing challenges to the evidentiary database. On the Continent, there is less concern about the purity of the avidentiary input because legitimacy is maintained by giving written reasons for verdicts. The law's yearning to legitimize inscrutable jury verdicts may be "the single most neglected contribution of the jury to the rationale for evidentiary arrangements peculiar to the Anglo-American procedural tradition" (p. 46).

    But bifurcation itself has the most profound influence (pp. 46-53). The splitting of the trial court into two bodies creates a seedbed for rules excluding evidence. In a unitary tribunal, exclusion is less practical. It is especially hard for a unitary court to enforce rules of exclusion that aim at guarding against the trier's weaknesses. The judges of a unitary court would have to exclude on grounds that they themselves might be prejudiced. Moreover, excluding is not the same thing as forgetting. For these reasons, bifurcation provides "the institutional black velvet on which the jewels of the common law's exclusionary doctrine can display their full potential and allure" (p. 52). Correspondingly, the lack of bifurcation on the Continent, even in cases in which lay people participate in factfinding, helps explain the absence of exclusionary rules.

    After discussing the jury trial, Damaska turns to his second pillar, one that may not even occur to one schooled only in the common law system -- the concentrated day-in-court trial (pp. 58-73). The English tradition of the concentrated trial, with parties bringing evidence that had not previously been scrutinized to court, created a need for evidence rules that would not otherwise have existed (pp. 68-70). Evidentiary practices appropriate in concentrated trials in which raw evidence is dumped on the table are not needed for episodic trials. Elaborate, during-trial authentication formalities are not needed if there is an opportunity to check authenticity beforehand. A ban on hearsay is harder to defend if the opponent has the opportunity to seek out the declarant for testimony in court, or to seek out information about him if the declarant is not available. Rules designed to prevent surprise or to abbreviate proceedings are less necessary. The gap between the Anglo-American concentrated trial and the episodic Continental trial is narrowing, and hence one of the pillars of common law evidence is deteriorating (pp. 58-73, 129).

    Damaska's final pillar (a giant in an unequal group) is the adversary system, defined as "a system of adjudication in which procedural action is controlled by the parties and the adjudicator remains essentially passive [and in which] litigants and their counsel decide what facts shall be subject to proof" (p. 74). The parties investigate the facts, organize them, and present them to the tribunal. Lawyers coach witnesses, and they select experts tendentiously. Though the vouching doctrine has been repudiated, participants still find it hard to separate...

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