An Outsider’s View of Common Law Evidence

same line by a Newton. 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 fact-finding, as scholars and judges have recognized. Many of them subscribe to Thayer’s view that evidence law is the “child of the jury system,” 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. Still others have explained its peculiarities as stemming from a desire to purify courts of perjury and fabrication, or as an attempt to achieve public acceptance of verdicts whatever their accuracy. Of course, these theories can be combined. Mirjan Damaska’s Evidence Law Adrift 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 fact-finding 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.