On the supposed jury-dependence of evidence law.

AuthorSchauer, Frederick

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.

  1. 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 Bentham, the rules of evidence--almost all of them--were needless and often suboptimizing distractions. The ideal system, he proposed, was one of "free proof," an approach, to oversimplify only slightly, in which evidence was admitted if logically relevant--if the consideration of some piece of evidence made a proposition more or less likely than it would have been without that evidence--and was then given the weight that its intrinsic and particular probative value justified. (18) Thus, courts would proceed just as ordinary people proceeded when using their common sense to make everyday factual determinations. (19) In making ordinary nonjudicial factual determinations, people do not, insisted Bentham, make use of artificial rules of exclusion or need special rules of corroboration for entire classes of events. And thus there was no justification for the law to do otherwise. Free Proof, for Bentham and his followers, was simply ordinary epistemology applied to legal matters, (20) and that is why Bentham favorably compared what he labeled the Natural System to its obvious (at least to him) inferior, the Technical System. (21)

    Although Bentham's views did not carry the day in undiluted form, they have been profoundly influential, if only to put on the permanent defensive anyone who might dare to think that there ought to be rules of evidence--especially nondefeasible exclusionary rules, as opposed to general but highly defeasible principles (or standards, if you will) of applied epistemology. (22) And in the face of this shift in the burden of proof (another one of the rules that Bentham would have eliminated), a tradition developed of explaining the rise and continuation of the rules of evidence as being substantially the byproduct of the institution of the jury. This was the signal contribution of James Bradley Thayer, who in 1898 in his A Preliminary Treatise on Evidence at the Common Law emphasized the essential narrowness of the exclusionary rules of evidence, urged that they be yet narrower still, and justified the ones that did and should remain as the consequence either of principles of substantive (and not procedural) law or in order to take account of the likely failings of juries. (23) For Thayer, and for many who followed him, it was the jury that was at the heart of understanding the essentially peculiar and often counterproductive institution of the law of evidence.

    Thayer's impact has turned out to be less through his Treatise and more through his teaching and his students, the most prominent of whom was John Henry Wigmore. Wigmore is known primarily for his monumental and largely descriptive systematization of the law of evidence, (24) but he also had a prescriptive side. (25) And when dealing not with what the law of evidence was, but instead about what it ought to be, Wigmore urged the development of a science of proof that was logically antecedent to the rules of evidence, and that would remain important even were the rules of admissibility--which he viewed as artificial--to be abolished. (26) Certain fundamental principles underlying these artificial rules, insisted Wigmore, were highly important, but their importance was attributable almost entirely to the existence of the jury. (27) Juries could hardly be trusted, Wigmore and many others believed, to apply the more scientific principles of proof directly to particular issues, and thus needed rules of evidence to steer them in the right direction. (28) Such steering would not be necessary for legally astute judges, however, (29) and thus the view developed that the law of evidence, to the extent it was necessary at all, was necessary largely because of the cognitive and epistemic failings of juries.

  2. EXIT THE JURY

    Were all, or even much, litigation to take place before a jury, questioning the jury-dependence of the bulk of evidence law might be of little more than academic or historical interest. In fact, however, jury trials are very much the exception rather than the rule, and this becomes more and more true every day. The positions of Bentham, Thayer, Wigmore, and others: (30) are thus increasingly important precisely because the jury has become an endangered institution worldwide. Even in the United States, the number of criminal and civil jury trials has declined substantially in recent years. (31) And in every common law country outside the United States, the civil jury has for all practical purposes disappeared, (32) with libel cases typically being virtually the sole exception. Indeed, in some common law countries even the criminal jury is in rapid decline. South Africa eliminated criminal as well as civil juries almost forty years ago, and it is noteworthy and surprising that there has been almost no move to reinstate even the criminal jury in post-apartheid South Africa. (33) Even in those common law countries that do retain the criminal jury, such as Great Britain, Ireland, Canada, New Zealand, and Australia, the actual number of...

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