Evidence Law Adrift 9780300146479

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Evidence Law Adrift

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MIRJAN R. DAMASKA

Evidence Law Adrift

Yale University Press New Haven & London

Copyright © 1997 by Yale University. All rights reserved. This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers. Set in Sabon type by Keystone Typesetting, Inc. Printed in the United States of America. Library of Congress Cataloging-in-Publication Data Damaska, Mirjan R., 1931Evidence law adrift / Mirjan R. Damaska. p. cm. Includes bibliographical references and index. ISBN 0-300-06937-5 (alk. paper) i. Evidence (Law). I. Title. K2.2-6i.D3 5 1997 347'.o6 —dcii 96-3992,8 CIP A catalogue record for this book is available from the British Library. The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources. 1 0 9 8 7 6 5 4 3 2 . 1

For Marija Kutku Zagreba u Novom Svijetu

Odd that a thing is most itself when likened. -Richard Wilbur

Contents

Preface

ix

Introduction I

I

Character of Common Law Evidence: A View from the Outside

7

2, The Archetypal Trial Court 2,6 3

Concentrated Proceedings

58

4 The Adversary System 74 5 Institutional Transformations

125

6 Epilogue: The Future 143 Index

153

vii

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Preface

This is an accidental book. It grew out of a lecture I delivered in the winter of 1989 at the Benjamin Cardozo Law School, in response to Peter Tillers's invitation to talk to an international seminar about the distinctiveness of common law evidence. Richard Lempert read the notes I had prepared for this occasion, made some stimulating comments about them, and persuaded me to turn the lecture into an article. I thought that the conversion process would take no more than a few months, but the effort to develop thoughts I had merely sketched at Cardozo drove me into unsuspected fields and confronted me with a host of unexpected problems. After two years of shuttling among law and related disciplines, I realized that the subject addressed in the lecture was too large for an article. Ready to give up the search for a unifying framework, I started planning a series of shorter law review pieces devoted to isolated aspects of the Anglo-American evidentiary idiom. But my old friend Bruce A. Ackerman urged me to continue treating the project as a whole. He finally induced me to expand on the themes sounded in the lecture and to embark on a book. As a true intellectual companion, never stinting in generous response, he became a sounding board for my inchoate ideas about the project's organization.

IX

x

Preface

Committing this book to paper again took longer than anticipated. A war broke out in my native country, diverted me from scholarly pursuits, and drained me of much creative energy. I interrupted writing several times in 1992, and during 1994 thought of abandoning the project altogether. At this critical point, Anthony Kronman, my dean at Yale Law School, agreed to lighten my teaching load for a semester. His kindness enabled me to complete work on the manuscript in the autumn of 1995. Roger Park read the finished product and made valuable written comments. My friend Alice Miskimin agreed to take time from her law practice to become my editor. The delicacy of her touch in handling the sensibility of one homeless in a borrowed tongue was altogether admirable. She showed me where the exposition needed to be made clearer, and—as an experienced trial lawyer— made useful suggestions for substaritive improvement in the text. My wife Marija contributed greatly to bringing this volume to fruition: as the world of our roots faced destruction, she provided the sense of stability and continuity I needed to concentrate on my work.

Introduction

It has become something of a commonplace to observe that the AngloAmerican method of establishing facts in adjudication is distinctive. One aspect of this method — the adversary presentation of evidence by battling lawyers — has been so successfully popularized around the world by novels, films, and television that its association with English-speaking justice is by now part of global popular culture. It is generally recognized — at least in legal circles — that this process of proof-taking, pregnant with potential for drama and coup de theatre, has no exact parallel in legal proceedings outside the orbit of the common law. Several other features of Anglo-American fact-finding are also widely classified as native flowers from the garden of the common law. A few of them, most notably the hearsay rule, are regarded as so bizarre that they occupy one of the most forbidding corners of the entire Anglo-American legal structure. No wonder foreign lawyers, when called upon to join their Anglo-American colleagues in a fact-finding enterprise, find it difficult to agree to factual inquiries that incorporate common law doctrines and practices. The checkered history of international war crime tribunals offers numerous examples of this difficulty.1 i. A recent example is furnished by debates surrounding the adoption of evidence rules for the War Crimes Tribunal for the former Yugoslavia. Statements made by the tribunal's I

2

Introduction

Faced with the prospect of applying common law rule of evidence, foreigners complain that its doctrines and practices are arcane and that they deviate too far from ordinary modes of investigating facts. But even in these laments there is a soup^on of uneasy respect for the exotic charms of the common law. In this book, I shall inquire into the reasons for this state of affairs. Why is it that Anglo-American fact-finding is so peculiar? Despite the great variety of answers given to this question, most reflection on the matter has circled around two competing theories. According to the first, older theory, the principal reason for the common law's distinctive character is the employment of lay people as judges of the facts. As was famously stated by James Thayer, the common law's fact-finding arrangements are first and foremost "the child of the jury system."2 According to the second, more recent theory, these arrangements are primarily the result of the prominent role partisan counsel play in gathering evidentiary material and presenting it to the court. On this second view, then, common law evidence is first and foremost the child of the adversary system.3 Which of these two accounts is found more compelling depends in some measure on the particular facet of the fact-finding style being singled out for examination. If attention is fastened on proof-taking, its competitive features can directly be credited to the adversary system. With regard to some exclusionary rules of evidence, the jury trial seems the more fitting explanation. But

president in announcing the adoption of these rules mirror the bewilderment of lawyers not trained in the common law world's technical rules for the screening of evidence. See United Nations International Tribunal, Rules of Procedure and Evidence, International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia, Document IT/29 (The Hague, 2,d Sess., Feb. n, 1994), 3. 2,. See James B. Thayer, A Preliminary Treatise on Evidence at Common Law (Boston, 1898), 2,66. Variants of this view, shared by Wigmore, were also expressed much earlier, by both scholars and judges. For an early judicial comment, see, e.g., the Berkeley Peerage Case, 171 Eng. Rep. 126, 135 (K.B. 1816). For a similar early scholarly opinion, see Thomas Starkie, A Practical Treatise of the Law of Evidence (Philadelphia, 182,4), I:453. An early proponent of this theory was Edmund Morgan, "The Jury and the Exclusionary Rules of Evidence," 4 U. Chi. L. Rev. 247 (1937). Its thoughtful contemporary expositor is Dale Nance, "The Best Evidence Principle," 73 Iowa L. Rev. 2,2,7,2-2-95 passim (1988). Of course, the two theories mentioned in the text need not be mutually exclusive; in fact, they are often used in combination. See, e.g., Cross on Evidence, 6th ed., ed. C. Tapper (London, 1985).

Introduction

3

the relative merit of the two theories can be disputed even with respect to the same subject matter. If one's vision embraces the Anglo-American mode of fact-finding in its entirety— seeking to identify its stylistic source, as it were — the explanatory power of the two theories is entirely uncertain. Part of the reason for this state of affairs is that in addressing the character of Anglo-American fact-finding, two distinctive approaches are usually conflated and separate lines of inquiry often confused. The first approach is historical: it tries to ascertain causative factors that brought about particular factfinding doctrines and practices. The second line of inquiry is analytical and interpretive: it is concerned with the study of factors that provide fact-finding arrangements with a plausible justification. The two approaches are closely connected: a factor that provides a good justification for an evidentiary rule can—as part of the motivational syndrome for its acceptance —easily find a place in the causal story describing the rule's origin. But this is not always the case: persuasive reasons can be advanced in favor of a particular evidentiary doctrine or practice although it is also clear that these reasons played no part in its genesis. According to the analytical approach, a particular factor can be separately studied as a rationale for a fact-finding arrangement although it developed in organic union with other factors. In the course of common law history, for example, jury trials went hand in hand with the clustering of formal legal proceedings around a continuous trial. But although jury trials and procedural concentration are Castor and Pollux to a historian, the two features are analytically distinct to one seeking argumentative support for common law evidence. The employment of the jury and trial-centeredness do not justify the same evidentiary arrangements: each feature deserves a separate analysis. This analysis acquires practical importance whenever evidentiary arrangements persist beyond the core conditions of their historical origin. Thus, to continue the example, if procedural concentration were abandoned while jury trials continued to be employed, it becomes useful to ask what evidentiary doctrines and practices have lost their raison d'etre as a result of changes in the procedural context. Analytically distinct matrices of evidence begin to reveal their separate influences on evidentiary arrangements. My inquiry into the distinctive character of the common law fact-finding process will be predominantly analytical and interpretive. The heart of the book will be devoted to arguments that provide a protective scaffolding for "classical" evidentiary arrangements —that is, a support for rules that began

4

Introduction

to crystallize in the late eighteenth and the nineteenth centuries.4 The extent to which such arguments were in fact the wellspring from which evidence law flowed is a historical question I shall address only from time to time, and then but briefly and fleetingly. Three features of the institutional environment will be at the center of my attention: 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. The synergy of arguments based on these three institutional factors will turn out to be so important as a justification for the AngloAmerican fact-finding style that each can be viewed as a supporting pillar: take away any of these three factors, and then the distinctive common law doctrines and practices require a new interpretive frame in order to maintain their vitality—indeed, to survive. Although the sui generis character of common law evidence seems to be generally recognized, what precisely is unique about the evidentiary regime is far from clear. The opening chapter of this book will therefore be devoted to the search for central tendencies that are truly native to common law evidence. This exploratory task cannot be accomplished without a look beyond the common law's borders: an insider's eye, englobed by what it observes, must lack the proper point of reference. Inevitably, the prelude to the main subject matter of this volume will entail extensive cross-cultural references. Chapter 2, will then examine the first supporting pillar of Anglo-American evidentiary arrangements — the archetypal trial court. Issues raised in this connection will not be limited to the often-rehearsed question of whether protection against the frailties of the lay jury provides sufficient justification for the salient features of common law evidence. More attention than is usual will be paid to problems that arise from the collective character of the fact-finding body and from the inscrutable nature of its verdict. The division of the deciding tribunal into two parts will prove to be in itself a significant factor in explaining distinctive common law doctrines and practices. Chapter 3 will be devoted to those characteristics of the fact-finding style that can be explained in terms of the attachment of classical common law justice to temporally compressed and marginally prepared trials. It is true, as 4. Anglo-American evidence law in its present form was largely nonexistent as late as the middle decades of the eighteenth century. See John Langbein, "Historical Foundations of the Law of Evidence: A View from the Ryder Sources," 96 Colum. L. Rev. 1168, 1172. (1996).

Introduction

5

already conceded, that the contingencies of common law history made the temporal foreshortening of legal proceedings dependent on the use of lay judges of fact. But whether the adjudicator is lay or professional, the time sensitivity of procedural action creates specific pressures — such as the need to confine and limit the fact finder's database. The relative absence of methodical preparation also places specific demands on the trial that are independent from the adjudicator's background. In order to throw the manifold but often subtle implications of procedural concentration into sharper relief, I shall set up throughout the chapter a counterpoint with continental European procedural systems, in which time constraints on proof-taking were traditionally much less severe. Chapter 4 will canvass those characteristic features of Anglo-American evidence that can be explicated by the comprehensive control by the parties and their counsel over legal proceedings. Expressed in more conventional terms, the chapter will examine connections between the organization of factual inquiries and the Anglo-American adversary system. When this theme is approached, attention quickly centers on evidentiary implications of the competitive proof-taking match, in which lawyers battle to make their own client's case and tear down their opponent's. I shall begin by following this inclination but pursue it further than usual. In order to find my way around some shadowy corners of evidence law, I shall have to use the comparative looking glass again: the effects of the adversary proof-taking style reach so deeply into the basic stratum of our procedural architecture that we live by them — and, by the same token, rarely notice them. But the competitive method of examining evidence in court is only the most visible and not the sole link between evidentiary arrangements and party control. The gathering of information, the selection of evidence, and other activities in preparation for proof-taking in court are also assigned to the litigants or their lawyers; this arrangement is maintained in all types of cases — civil, criminal, and administrative. Regarded domestically as a matter of course, this broad litigant control is actually unique to Anglo-American justice. Outside of the common law world, this control is considered inappropriate—at least for criminal cases. Exploring the foundations of the pervasive grip of Anglo-American litigants over procedural action will lead me later in the chapter to examine the relations between partisan self-interest and the demands of rational inquiry, as well as the connections between party control and the purposes of adjudication. As is well known, the institutional context that prevailed in the formative

6

Introduction

period of common law evidence has undergone great changes in this century: the importance of the jury has dramatically declined, trial-centeredness has largely been abandoned, and even party control over the proceedings, although quite resistant to diminution, has not been spared a challenge. Cracks have thus appeared in all three traditional pillars of evidence law. The last chapter of this book will inspect their deteriorating condition and argue that the recent surge of reforms of evidence law in all Anglo-American legal systems can in large measure be attributed to changes of the institutional milieu. As the rationales associated with this milieu weaken, doctrines and practices heretofore invested with meaning now increasingly appear as mere technicalities — legal rituals devoid of deeper sense. What will come of this deterioration in the environment that nourished and sustained the distinctive character of common law evidence? Before closing, I shall offer some conjectures on this subject. Strong currents of change are sweeping all contemporary court systems, everywhere ushering a sense of crisis in the cherished traditions of factual inquiry. An overview of these currents will place present misfortunes of Anglo-American evidence in a broader framework so that they can be seen in proper perspective. Curling through the pages of this study from its beginning, the contrapuntal treatment of our evidence law will thus be maintained until the very end. And although my conclusions may not break much new ground or contain great epiphanies, unfamiliar horizons unveiled by the persistent comparative references should prove revealing to the reader.

I

Character of Common Law Evidence: A View from the Outside

Much of what is peculiar about the common law's fact-finding style springs less from rules of evidence than from the manner in which they are applied. But since the manner of application vitally depends on the institutional environment, most elements of this style cannot be outlined at this early point—the proper context is missing. It is only in subsequent chapters, as my story of the various ramifications of the institutional milieu unfolds, that the common law style's singular features will come into view. The present discussion is devoted solely to the normative aspects of fact-finding: an initial sense is needed of the characteristics of Anglo-American evidentiary regulation. This sense cannot be obtained, of course, without a comparative reference point. I shall use Continental European evidence law for this purpose. It is true that since the collapse of the Roman-canon proof Continental European nations no longer share a common evidentiary regime: the range of internal differences is in modern times quite considerable. Nevertheless, habits of thought acquired after the rejection of Roman-canon proof, and the similarity of procedural institutions, exert unifying influence. Central tendencies of

7

8

Character of Common Law Evidence

Continental evidence law are shared and can profitably be contrasted with those of common law jurisdictions.1 Observing common law evidence, then, from the Continental perspective, three of its features stand out as typical: the complexity of common law regulation; a preoccupation with sifting the material for the fact-finder to hear and see; and an aspiration to structure the analysis of evidence.

The Embrace of Complexity It is often said that a major difference between common law and Continental procedure concerns the density of the normative web cast over common law fact-finding: there is much complex law on the common law side but very little on the Continental. In trying to assess the accuracy of this cliche, several dimensions should be distinguished in which the evidentiary regulation can be classified as complex. Volume. One is the sheer mass of evidentiary rules. On this dimension, the contrast between Anglo-American and Continental systems is grossly overstated. The major reason for this is diverging views about the sources of binding legal authority in the two legal traditions. Because common law doctrine recognizes judicial precedent as binding and the Continental doctrine does not, court decisions dealing with evidentiary questions are regularly counted as law only on the Anglo-American side.2 Now when Continental i. On common contours of civil evidence law, see, e.g., Heinrich Nagel, Die Grundziige des Beweisrechts im europdischen Zivilprozess (Baden-Baden, 1967). The sense of internal variation of this law can be gained from the articles collected in D. Carey Miller and Paul R. Beaumont, eds., The Option of Litigating in Europe (London, 1993), 43-147. For a similar account of criminal evidence, see J. Pradel and R Boulan, La preuve en procedure penale comparee (Pau, 1992.). More recently, pressures for a degree of uniformity in criminal evidence are coming from the European Court of Human Rights as it interprets the 1950 European Convention on Human Rights, especially its article 6. z. It is also only on the Anglo-American side that court decisions on evidentiary matters are regularly reported. On the highly selective reporting of judicial decisions in Continental countries generally, see Rudolf Schlesinger et al., Comparative Law, 5th ed. (Mineola, N.Y., 1988), 643-51. The fact that evidentiary regulation on the Continent is not treated as a separate discipline is also partly responsible for the perception that there is little evidence law. Instead, evidence is seen as an appendage to the law of civil, criminal, and administrative procedure—an appendage easily lost from view.

Character of Common Law Evidence

9

evidence is sought solely in legislative enactments and the meager harvest of the search then compared to both statutory rules and the rich crop of court decisions in Anglo-American lands, a striking contrast in the mass of evidentiary regulation can indeed easily be established. When, however, court decisions are included on the Continental side of the comparison as well, things begin to change: in many Continental jurisdictions the pronouncements of appellate courts on points of evidence are truly voluminous.3 It will be objected that formally nonbinding decisions of Continental courts should not be placed on au pair footing with formally binding common law precedents: only the latter are really "case law." But this objection does not stand up to much scrutiny. It is no secret that Continental judges, although formally free to disregard legal opinions of their superiors, actually look to higher courts for guidance: opinions of higher-ups are followed as a matter of normal institutional practice, and departures from those opinions entail a sanction—that is, as in common law, reversal on appeal.4 Nor is it true that standards stemming from Continental decisions are more pliable than AngloAmerican case law.5 Case law on matters of evidence is almost always factbound and often in the form of soft-edged rules or balancing tests that can be approximated with little exaggeration to guidelines, or rules of thumb. Consider only how many rules imply the balancing of probative potential of evidence against various counterweights. Nor is this all: since holdings tend to be 3. In Weimar, Germany, for example, a scholar has counted more than 1,200 decisions on a single issue of evidence law: the grounds on which the court can reject offers of proof made after the criminal trial has begun. See Karl Kunert, "Some Observations on the Structure and Origin of Evidence Rules," 16 Buffalo L. Rev. 12,2, 156 (1966). An impression of the great wealth of more recent decisions on this issue can be gained from Max Alsberg et al., Der Beweisantrag im Strafprozess, 5th ed. (Cologne, 1983). 4. Normative standards of Continental appellate courts should be treated as legal for the purpose of cross-cultural comparison, provided that they are regularly followed by courts, and with the further proviso that their breach entail consequences such as reversal on appeal. Whether local legal doctrine recognized these standards as formally binding should be irrelevant. Only in this way can the parochialism of legal folklore be transcended and a meaningful tertium comparationis established. For a comprehensive survey of the actual role of precedent in the civil law system, see Schlesinger, Comparative Law, supra n. 2, at 643-51. 5. In fact, as we shall see later in this book, there is an important sense in which all Anglo-American rules of evidence, whether of statutory or judicial origin, are pliable. See infra Ch.4, at "Conditional Applicability of Evidence Law."

io

Character of Common Law Evidence

distilled from thick factual descriptions, judges have considerable latitude to determine what is actually binding in a precedent.6 On the other hand, when Continental judges seek guidance in higher courts' opinions, they primarily look for rule-like pronouncements. And as the latter are relatively independent from factual details, Continental judges cannot easily make factual distinctions in order to mollify the rigidity of normative standards enunciated by higher courts.7 All things considered, the comparison of Continental and Anglo-American evidentiary regulation is seriously flawed if Continental case law is left out of the picture. And when this law is included in the comparison, the argument for a dramatic asymmetry in the mass of evidentiary rules can no longer confidently be made. Whatever difference between Continental and common law systems remains in the degree of saturation of proof processes by law is overshadowed by more salient contrasts betWeen evidence law in the two branches of the Western legal tradition. Low degree of ordering. More salient is the way in which AngloAmerican evidence law is ordered. Viewed through Continental eyes, it seems a maze of disconnected rules, embroidered by exceptions and followed by exceptions to exceptions. In this it is evocative of the Roman-canon law of proof with its labyrinthine "expansions," "limitations," and "sublimitations." Few elements common to evidence rules have been factored out, or organizing principles elaborated, to make the entire normative structure easily surveyable.8 And although the more recent trend toward codification has in some common law jurisdictions greatly reduced this characteristic aspect of evidence law, it still remains cross-culturally striking. Contrast this to the situation on the Continent. Here, scholars fashioned separate organizing principles for evidence law for civil and criminal pro6. For some internal differences among common law jurisdictions on this score, see P. S. Atiyah and R. S. Summers, Form and Substance in Anglo-American Law (Oxford, 1987), 12.0-2.7. Observe also that appellate courts in most common law countries are notorious for allowing trial judges a great deal of discretion in ruling on a vast array of evidentiary matters. 7. We shall soon see, however, that rule-like pronouncements on some aspects of evidence seldom crystallize. 8. Some important evidentiary concepts remain fuzzy, giving rise to confusion concerning their proper interpretation. On hearsay definition, see, e.g., Michael Graham, Evidence, 2,d ed.(Notre Dame, Ind., 1988), 76.

Character of Common Law Evidence

11

cedure.9 Informed by these principles, modern European legislation provided a relatively simple framework for the development of judge-made law. Scholars were also busy tending to the exfoliating case law on matters of evidence: with one eye on foundational statutory provisions and the other on court decisions implementing them, they relegated some "precedents" to oblivion and organized the rest into surveyable patterns. The fruits of their ordering efforts are contained in influential commentaries on civil, criminal, and sometimes also administrative procedure.10 Although the low degree of ordering is a prominent feature of AngloAmerican evidence, I shall only sporadically allude to it on the pages that follow. This is because the disheveled state of evidence law is but remotely related to those aspects of the institutional milieu with which this book is chiefly concerned. It is primarily attributable to the fact that common law evidentiary doctrine evolved ad hoc, cobbled up over time from judicial rulings in individual cases.11 But this is a general aspect of common law culture that I want to leave to one side. Technical character. More important for my purposes is another trait that contributes to the reputation for high complexity of common law evidence. The method prescribed by law for the conduct of fact-finding departs in large measure from the method of factual investigation employed in general social practice. This apparent complexity is reflected not only in the rejection of much information that is otherwise probative, and in the distinctive manner in which informational sources are tapped in the courtroom, but also in a variety of other ways discussed later in this book. In consequence, there is relatively little an untutored person can extrapolate from his or her ordinary life 9. An early warning is necessary at this point. The reader should realize that differences between civil and criminal evidence are much more pronounced on the Continent than they are in Anglo-American countries. Since Continental criminal evidence presents a much more obvious contrast to the common law, Anglo-American commentators are in the habit of associating all Continental evidence with that governing criminal cases only. In some respects this habit is quite innocuous, but in others it can be misleading. I shall address the most potent source of the pronounced internal differentiation of Continental evidence below in Chapter 4, at "The Scope of Procedural Control." 10. It should be realized that Continental lawyers, when working on a case, reach for influential commentaries rather than for case reports. See Schlesinger, Comparative Law, supra n. 2, at 644. 11. See, e.g., James B. Thayer, A Preliminary Treatise on Evidence at Common Law (Boston, 1898), 2,65-66.

12

Character of Common Law Evidence

experience that can be used in forensic proof-taking without much lawyerly intermediation. As we shall see in later chapters, fact-finding in Continental procedural systems deviates much less from ordinary methods of inquiry, despite the considerable differences that exist between evidentiary arrangements in civil and criminal matters. Markedly less technical in both branches of adjudication, Continental fact-finding presents a stark contrast to the common law.12 The technical character of evidentiary regulation will be a recurrent theme of the next three chapters— it is indeed one of the leitmotifs of the present volume: its interlacings with an institutional milieu that includes strong lay components will be examined in a variety of contexts.

The Prophylactic Orientation Virtually all observers agree that the intense preliminary screening of evidence constitutes a salient trait of the Anglo-American fact-finding style. This trait is primarily the product of institutional arrangements regarding the policing of the receipt of evidence. But the screening is also anchored in normative considerations: it is the law that supplies the criteria for separating admissible from inadmissible information. We should hence not be surprised to find that exclusionary rules are widely considered a hallmark of AngloAmerican evidence. From a comparative standpoint, however, this is another gross exaggeration: only a small subset of exclusionary rules is truly idiomatic to the common law. To identify this subset, a quick reconnaissance of the Continental legal landscape is in order. Extrinsic exclusionary rules. Rules rejecting probative information for the sake of values unrelated to the pursuit of truth are clearly not limited to the world of Anglo-American justice.13 A piquant example is testimonial privileges: not only are they widespread on the Continent, but they often assume broader forms —much more encompassing than in the law of any common law country. Thus, in addition to refusing to answer self-incriminating ques12.. Departures of evidentiary arrangements from ordinary cognition will be taken up infra Ch. 4, at "Judicial and Extrajudicial Inquiries." 13. Wigmore termed this category of exclusionary rules "rules of extrinsic policy." See John H. Wigmore, Evidence in Trials at Common Law, Tillers rev. (Boston, 1983), 1:11, at 689. Based on the purpose of rules, the Wigmorian classification is not without its ambiguities, but I follow it here because it is convenient for a cursory overview.

Character of Common Law Evidence

13

tions, in many European jurisdictions witnesses can refuse to answer questions potentially capable of incriminating members of their family. Some countries go even further and dispense witnesses from the duty to answer any question likely to dishonor them or expose them to direct financial loss.14 Other countries grant parties in civil litigation a general dispensation from the duty to testify.15 Indeed, so expansive are some of these testimonial privileges that one wonders how the lawgivers' promises can be kept without seriously harming the interests of justice.16 Rules prohibiting the use of illegally obtained evidence are also not limited to common law countries. The very idea of refusing to employ such evidence first appeared on the Continent and was widely accepted—strange to report—in the inquisitorial criminal process of the ancien regime.17 Until quite 14. For the influential German variation of these privileges in civil procedure, see Ronald Allen et al., "The German Advantage in Civil Procedure: A Plea for More Details," 82 Nw. U. L. Rev. 705, 731-33 (1988). For analogous provisions in the German criminal process, see the Code of Criminal Procedure (Strafprozessordnung), §55. Similar laws exist in Austria (art. 152. of the Criminal Procedural Code), in many Swiss cantons, and in those central European nations that follow the German model of civil and criminal procedure. In Romance countries and jurisdictions influenced by their example, testimonial privileges are much more restricted, however. 15. This is so in Germany and Austria. See Leo Rosenberg and Karl Heinz Schwab, Zivilprozessrecht, i3th ed. (Munich, 1981), 736-37. The reluctance to use civil litigants as a testimonial resource used to be explained by the unreliability of their self-serving statements. In modern times it is also justified by an empathy with the dilemma that would confront a party forced to testify against self-interest. The reasoning employed is thus closely akin to the reasoning urged to justify the criminal defendant's right to refuse to testify or answer questions. See Mirjan Damaska, Faces of Justice and State Authority (New Haven, 1986), 127-30. 16. The short answer is that Continental privileges are invoked not nearly so often as Anglo-American lawyers would expect. Prominent among reasons is the paucity of contacts between prospective witnesses and litigants' lawyers. I shall come to this point in Chapter 4. 17. Not a mere theoretical proposition, it was sporadically applied in practice. The concilia of Prospero Farinacci, one of the sixteenth century's most famous lawyers, contain his argument in an aggravated murder case in which the defendant's conviction was obtained through illegal application of judicial torture. On appeal, the prosecution maintained that the highest authority of the land authorized the departure from rules governing the defendant's interrogation when most serious crimes are investigated. Arguing for the defense, Farinacci invoked a long list of Roman-canon authority for the view that court decisions cannot rest on evidence obtained in violation of a limited number of a

14

Character of Common Law Evidence

recently, however, the prevailing rationale for this prohibition was that information tainted by the improper manner of acquisition compromises the information's reliability. Only after the Second World War, in the gray light of the European catastrophe, did the opinion gain currency that some types of illegal evidence should not be used in court—even if manifestly probative—for the sake of protecting values unrelated to the concern for fact-finding accuracy. At this point, a likely sotto voce inspiration for this change of heart was American exclusionary rules of constitutional origin—themselves of relatively recent vintage.18 Whatever the source of the inspiration, however, provisions prohibiting the use of illegally obtained evidence began to proliferate on the Continent like relics of the true cross. Their range is often richer and more diverse than in any common law country outside the United States.19 A separate question, however —a question to which I shall soon return —is the fact finder's actual response to the encounter with illicit information. Intrinsic exclusionary rules. Rules typical of common law can be found only among those that reject probative information, on the belief that its elimination will enhance the accuracy of fact-finding.20 Consider threshold demands on the probative force of evidence. It is daily routine in AngloAmerican courtrooms to oppose admission of evidence on the ground that its significance is too slight or that its connection with material facts of the case is too remote. There is no real analogue to this routine in Continental trials. defendant's "natural rights." Even the prince was not empowered to dispense with the observance of these rights. See Prospero Farinacci, Consilia, vol. i, consilium 98, nos. 38-39 (Lyons, 1610). 18. The growth of these rules was foreshadowed by the U.S. Supreme Court in the late nineteenth century. See Boydv. United States, 116 U.S. 616 (1886). 19. Italy has recently adopted a statutory provision banning the use of illegally obtained evidence. See Codice diprocedura penale, art. 191 (1988). Similar legislation has been enacted more recently in Hungary, Turkey, and some other countries. Of course, the adoption of these provisions does not necessarily mean that courts actually engage in a wholesale rejection of illicit proof. Although reliable empirical information is lacking, a vigorous exclusionary policy in all these countries is highly unlikely. For a brief countryby-country survey of the pertinent provisions, see J. Gautier, "Die Beweisverbote," 193 Zeitschrift fur die gesamte Strafrechtswissenschaft 796 (1991). See also the comparative remarks on illegally obtained evidence in Craig Bradley, "The Emerging International Consensus as to Criminal Procedure Rules," 14 Mich. J. Intl. L. 171, 2.2.1 (1993). 2.0. Wigmore called them "rules of auxiliary probative policy." See Wigmore, Evidence, supra n. 13,1:11, at 689.

Character of Common Law Evidence

15

Although it is not precisely true that Continental systems are ready to admit all logically relevant information,21 when all demands on the minimal probative potential of evidence are duly accounted for they still appear remarkably unexacting by comparison with those of the Anglo-American law. More peculiar and also more important are common law rules rejecting probative material on the theory that it might be overestimated or on the theory that its probative value is overshadowed by its "prejudicial" capacity — its capacity to unfairly predispose the trier of fact toward a particular outcome. The hearsay rule is by far the best known example of exclusion on the first of these two grounds. Although countries outside of the common law's compass are not unaware of hearsay dangers, their reaction to them seldom assumes the form of exclusionary rules.22 Where it does, as is sporadically the case in criminal procedure, the embrace of the exclusionary option is rooted as much in due process values as it is in the desire to protect the adjudicator from unreliable information.23 With minor qualifications, then, derivative information is readily available to Continental fact finders, especially in written form ii. French trial judges, for example, refuse to hear evidence because of its "defaut de caractere concluant." See A. M. Honore, "The Primacy of Oral Evidence," in Crime, Proof and Punishment: Essays in Memory of Rupert Cross, ed. C. F. H. Tapper (Cambridge, Eng., 1981) 172,185. German courts reject evidence produced by dubious factfinding techniques. See Alsberg, Beweisantrag im Strafprozess, supra n. 3, at 588. It should also be noted that provisions exist in many Continental procedural codes requiring that certain facts be proven only by specified means of proof, such as expert witnesses. As a consequence, information about these facts springing from less reliable sources is inadmissible. On Italian provisions of this type, see Michele Taruffo, La Prova dei fattigiuridici (Milan, 1992.), 32.0-2.1. 2.2. The insight that firsthand information is more reliable than information filtered through intermediary sources is very old. Several centuries before English judges helped infant hearsay restrictions take their first steps, serious constraints on the use of derivative proof were fashioned in Roman-canon evidence law. On the most widely used version of these constraints, see Mirjan Damaska, "Hearsay in Cinquecento Italy," in Studi in onore di Vittorio Denti, ed. Michele Taruffo (Padua, 1994), 1:59-88. 23. An example is the ban on use of police records as proof in criminal trials in many Continental countries. See, e.g., the German Strafprozessordnung, 251. TJie ban is rooted in both qualms about the accuracy of these records and the desire to protect suspects from undue pressures. Observe in this connection that the European Court of Human Rights has held that a criminal conviction based in large part on police records violates article 6(3) of the European Human Rights Convention. See Unterpertinger v. Austria, no Eur. Ct.H.R.(ser.A)(i987).

16

Character of Common Law Evidence

and in the form of hearsay remarks by firsthand witnesses. Expressed in shorthand, typical strictures against hearsay —more important in criminal than in civil cases —convey no more than the following message to the adjudicator: "Use original sources of information whenever they are reasonably available. When you feel you must rely on a derivative source, explain in a written opinion the reasons that impelled you to give credence to information that is usually of inferior value."24 One also scans the legal map of Europe in vain for analogues to common law provisions that prohibit character evidence, evidence of collateral misdeeds, or similar information about a person's past life. The few rules that can be located on this subject are intended not to enhance the accuracy of factfinding but to impose side-constraints on the pursuit of truth for the sake of extrinsic policy reasons.25 Again, this does not suggest that Continental law fails to realize the risks of relying on inferences from propensity evidence. It is generally acknowledged as improper to assume that just because an accused has a criminal record or has committed a collateral bad act he is more likely to have committed the crime with which he is now charged — or, in civil matters, that just because a person was negligent in the past, he is likely to have been similarly culpable in the occurrence sub judice.26 But Continental evidentiary theory focuses only on whether information from a person's past has proba2.4. For details, see Mirjan Damaska, "Of Hearsay and Its Analogues," 76 Minn. L. Rev. 425, 444-56 (1992.). Recent departures from traditional attitudes toward hearsay have occurred in Portugal and—with far greater resonance—in the 1988 Italian Code of Criminal Procedure. At least some changes in traditional responses to criminal hearsay may now be required by article 6 of the European Human Rights Convention. See the judgment of the European Court of Human Rights in Kostovsky v. The Netherlands, 166 Eur. Ct. H. R. (ser. A)(i99o). In some situations, the German Constitutional Court views the use of completely uncorroborated hearsay as a violation of the accused's right to a "fair criminal process." See the judgment of July 19, 1995, reported in 15 Neue Zeitschrift fur Strafrecht, 600-01(1995). We shall soon see, however, that the Anglo-American and Continental hearsay concepts are not exactly alike. Moreover, Continental courts are structurally ill-equipped to shield the fact finders from exposure to hearsay—especially when it consists of sideremarks made at trial by a firsthand witness. See infra, Ch. 2,, n. 42. and accompanying text. 2.5. The most common example is the ban on the employment of "expunged" criminal convictions, aimed at promoting the rehabilitation of criminals. 2.6. Appellate court opinions can easily be found reversing the trial court judgment on the ground that more than minor corroborating weight was accorded to information

Character of Common Law Evidence

17

tive value: if it is probative, it can and should be used in adjudication. Absent from mainstream Continental thought is the concern that propensity information, although probative, could be accorded more weight than it deserves or that it could generate unfair bias against a litigant.27 The worry that dirty linen from a person's past could obscure whatever relevance propensity inferences might possess is hence a distinctive concern of Anglo-American evidence law. What final lesson is suggested by this breathtaking tour of Continental legal landscapes? It turns out that exclusionary rules per se are indeed not uniquely characteristic of common law evidence. We enter genuine common law territory only as we examine the rejection of probative information on the ground that it may be misused. Only this motive for the exercise of the exclusionary option is the common law's true nonpareil.

Structuring the Analysis of Evidence Common law procedure is usually regarded as the citadel of free evaluation of evidence. This freedom is epitomized in the power of the lay jury to render an unexplained general verdict—a decision that is almost impervious to challenge for faulty analysis of evidentiary material. But freedom of proof is also said to follow from the absence of rules attaching conclusive probative force to a specified amount or quality of evidence and from the absence of provisions mandating that greater weight be attributed to direct than to circumstantial evidence. And although exclusionary rules of evidence are legion, they only reduce the pool of information available to the triers of fact; it is not the business of these rules to prescribe how information that has crossed the hurdle of admissibility should be processed. On this widely shared view, then, the common law appears to celebrate the freedom of the fact finder to evaluate the weight of evidence and to reason from it. But this account of the matter is incomplete and may be seriously misleading. In order to obtain a better understanding of the relation between evidentiary regulation and evaluation of evidence in Anglo-American procedure, the legal instruments designed to govern the fact finder's analysis of evidence must about the accused's past misdeeds. See Mirjan Damaska, "Propensity Evidence in Continental Legal Systems," 70 Chi.-Kent L. Rev. 55, 61-62. (1994). 2.7. If these concerns surface now and then in Continental writing, they are provoked by familiarity with Anglo-American literature. For such a concern taking its cue from Wigmore, see Francois Gorphe, L'Appreciation des preuves en justice (Paris, 1947), 316-13.

i8

Character of Common Law Evidence

be reviewed. The findings must then be illuminated from a comparative perspective in order to establish their significance. The legal toolbox. Common law was never averse to instruments aimed at constraining the fact finder's freedom in processing evidence. On the contrary, as self-informing Angevin juries retreated before juries that required instruction in court, evidentiary doctrines began to evolve, at least partly, for the specific purpose of influencing decision-making by lay triers of fact. Corroboration rules, a prominent instrument of this influence, still continue to be embraced in a variety of contexts. Yet their avowed purpose is to limit deliberative freedom: in the absence of the confirmation required by law, triers of fact are not supposed to take a fact as proven no matter how persuaded they might be that it exists.28 Another telling illustration is provided by partial admissibility rules —rules allowing information in for only a narrow purpose. These rules are again numerous: the law often requires that an item of information be used only as it bears on a witness's credibility but not as it bears on the merits, or that it be used only to prove that a statement was made but not that it was true. In thus regulating legally permissible lines of inference, these rules are manifestly intended to govern the analysis of information. Additional instruments lie below the surface of things — by-products of the accolade extended to exclusionary rules. Remember that when fact finders acquire knowledge of inadmissible evidence—not a rare occurrence—the typical response of the legal system is to require that this knowledge be ignored. But if the knowledge happens to be persuasive —again not a rare event—the law's request implies the demand that no weight be attached by the fact finders to what they have learned. To put the point more iconoclastically, the procedural system, desirous of enforcing its exclusionary policy, silently embraces a species of rules of weight—a species requiring that zero probative value be attributed to inadmissible evidence. It is true that the usual sources of these hidden rules of weight are judicial instructions to the jury rather than statutory provisions or the decisions of appellate courts. But even if evidentiary instructions are denied precedential value, they still remain tools of the legal system purported to limit the fact finder's freedom to process information. If one's vision then extends from instructions enforcing exclusionary rules 2.8. In contrast to conclusive proof provisions, however, corroboration rules do not exert a pressure in the opposite direction: they never demand that facts be taken as proven despite the adjudicator's contrary belief.

Character of Common Law Evidence

19

to instructions relating to other fact-finding concerns —mandatory presumptions, for example —the common law's arsenal of instruments designed to structure the deliberative process begins to look quite powerful. And it becomes easy to understand why the "free proof" principle lacks normative status in common law countries and is —in contrast to Continental usage — not even a term of art. To be sure, a realist spirit can still argue that this arsenal, no matter how impressive, makes few inroads on the fact finders' actual freedom in arriving at the verdict. I shall soon examine the force of this argument. But at present my focus is on the distinctive tendencies of AngloAmerican evidentiary regulation. Whether this regulation realizes its aspirations is another story: the prescriptive and descriptive aspects of the free proof problem should not be confused. A false reference point. Commentators who salute Anglo-American procedural systems as "stronghold[s] of free proof" like to support their position by setting up a contrast between common law evidence and the Romancanon system of legally controlled proofs. Because the latter teemed with sufficiency rules such as the notorious two-eyewitness rule, these commentators then claim that this system, at least in its original form, turned the fact finder into a mere automaton compelled to come to a decision independently of his beliefs.29 Of course, against the backdrop of such a mechanical regulation, the common law's aspiration to structure the analysis of evidence dwindles to insignificance. It seems no more than a weak normative eddy in a powerful current of free-flowing assessment of the probative value of evidence. But this contrast with such a mechanical scheme is poorly chosen. In the first place, it rests on a widespread misreading of legal history. The Romancanon law of proof, both in intent and in application, seldom compelled the judge to make positive factual findings contrary to his better judgment or to his "conscience." To quote from an opinion of Baldus de Ubaldis, one of the greatest authorities on Roman-canon proof, "no true and certain rule can be handed down concerning the credibility of arguments or witnesses because of the variability of men, the multiplicity of their transactions, and the 2.9. Some commentators go even further and suggest that the schema attributed the same weight to all sworn testimony. See, e.g., Wigmore, Evidence, Chadbourn rev. (Boston, 1978), 7:32.5-30, 2.032.; W. S. Holdsworth, History of English Law (London, 192.6), 9:2.10-11. For recent references to a rigid system in which evidence is not weighed but only counted, see Barbara Shapiro, Beyond Reasonable Doubt (Berkeley, 1991), 3; John Jackson, "Two Methods of Proof," 51 Mod. L. Rev. 549, 552. (1988).

20

Character of Common Law Evidence

unknown trustworthiness of witnesses."30 The principal constraining effect of the Roman-canon scheme was negative: the judge was prevented in some cases from declaring facts as proven although he was personally convinced (on legally insufficient evidence) that the facts were true. This negative effect can thus be likened to that of a comprehensive body of corroboration rules. More important for my purposes, the reference point provided by Romancanon law is now severely antiquated: it is of little help in identifying those features of common law evidence that set it apart from other modern evidentiary systems. Rather than Roman-canon law of proof, it is the rebellion against it that provides us with a clearer point of contrast. The Continental free proof principle. On the Continent, this rebellion rested in important part on the belief that the probative weight of evidence is a matter too unruly to obey the lawgiver's rein, too contextual to be captured in a web of categorical legal norms.31 In the period of the French Revolution, the assault on Roman-canon law of proof—already commenced by Enlightenment philosophers—was taken over by revolutionary politicians who blamed it for so many real and imaginary ills of ancien regime justice that the very idea of legally controlling proof became both intellectually discredited and politi30. "De fide argumentorum seu testium non potest tradi vera et certa regula propter hominum varietatem et negotiorum multiplicitatem et incognitam testium fidelitatem." Baldus de Ubaldis, Codicem Commentaria, bk. 4, at 2.0; qu. 18, no. 2.9 (Venice, 1577). Strewn through the opinions (consilia) of this fourteenth-century lawyer are references to actual cases in which seemingly rigid "numerical" evidence rules are relaxed or bypassed. See, e.g., Baldus de Ubaldis, Consilia, vol. 4, consilium 69, no. 2.; consilium 455, no. 3 (Venice, 1580). The only really inflexible provision of Roman-canon proof was the prohibition of resting factual findings on a single witness's testimony. For an excellent discussion of this point, see Karl Gross, Das Beweisverfahren im canonischen Prozess (Innsbruck, 1880), 2,91-94.1 have elsewhere tried to dispel the mistaken belief in the rigidity of the original Roman-canon scheme. See Mirjan Damaska, "The Death of Legal Torture," 87 Yale L.J. 860 (1987). 31. Probably the strongest condemnations of legal formulae designed to regulate probative weight came from the pens of philosophers. A critique of rules for subjects that depend on "countless particularities" can be found already in Vico in the early eighteenth century. He urged that these rules be treated as mere "road signs" (dei compitales). See Giambattista Vico, On the Study Methods of Our Time, trans. Elio Gianturco (New York, 1965), 46. Much better known are Voltaire's later attacks on the legal regulation of probative weight. See, e.g., his essay "Prix de la justice et de la humanite," in Voltaire, Oeuvres completes (Paris, 1880), 30:535, 578. Among practically oriented lawyers, of course, qualms about rigid evidentiary rules have a much longer history.

Character of Common Law Evidence

zi

cally suspect. In the aftermath of the revolutionary tumult, the Roman-canon scheme was rejected, and the main inspiration for a new evidentiary regime became the so-called principle of free evaluation of evidence, soon to be glorified on the Continent as the cornerstone of enlightened administration of justice. Although its true spiritual home was always criminal procedure, the principle radiated beyond, also affecting civil evidence—albeit to a much lesser degree. In its pristine form, the principle was conceived in a sense so radical that it demanded not only freedom from legal "chains" in analyzing evidence but also freedom from all intersubjectively ascertainable standards governing the fact-finding decision. The adjudicator's inner persuasion that a fact was proven—his conviction intime—was thought sufficient to justify the verdict. The reign of this romantic notion did not last very long, however—at least outside of France and a few nations closely attached to its culture. A less expansive concept of free proof appeared and started to spread. In this new guise, free proof was understood to entail only the freeing of the fact finder from binding legal rules concerning the analysis of evidence. It no longer implied the license to disregard extralegal canons of valid inference.32 The revolutionary condemnation of Roman-canon regulation brought about more than an antipathy to rules of weight. It also gave rise to a climate of opinion hostile to the adoption of rules excluding evidence on the ground that it is of dubious probative value. For if one takes the view that the probative effect of evidence depends on the infinite particularity of experience, then rules resting on an ex ante negative judgment of probative value easily appear as potentially dangerous overgeneralizations. To legislate on a subject 32,. For an overview of these developments in Continental evidence law, with special emphasis on its criminal variant, see Gerhard Walter, Freie Beweiswurdigung (Tubingen, 1979), 60-85, and Massimo Nobili, // Principio del libero convincimento del giudice (Milan, 1974). Highly atypical of Continental criminal justice is The Netherlands. In 1838, when the Dutch rejected the French procedural model, two mandatory corroboration rules found their way into the law: the court was prohibited from convicting the defendant on his confession alone or on the testimony of a single witness. But these two "minimal proof" rules are of little practical importance, and Dutch lawyers continue to profess their adherence to free evaluation of evidence. In civil procedure, on the other hand, in many Continental countries one encounters a considerable number of provisions attributing conclusive weight to specified documentary evidence, unless displaced by a special procedure attacking its validity. Much of this constitutes "preconstituted proof" designed to discourage litigation over certain transactions or to reduce evidentiary difficulties in case of dispute.

22

Character of Common Law Evidence

so deeply contextual is like legislating against a chameleon by reference to its color. Coupled with institutional factors soon to be discussed, this "antinomian" attitude was thus responsible for the fact that on the Continent, the adoption of Anglo-American intrinsic admissibility rules was never seriously contemplated, despite the widespread postrevolutionary attraction of Continental lawyers to common law forms of justice.33 As the preceding remarks suggest, the rejection of Roman-canon law of proof has left a strong imprint on Continental evidentiary thought. Enshrined in statutory texts, free evaluation of evidence assumed in most Continental countries the form of a revered regulatory principle. And although its pristine force has receded in recent times, the principle still exerts a normative pull, especially in its heartland —the sphere of criminal procedure. Here, legal instruments purporting to direct the fact finder as to how to react to evidence are still treated as prima facie suspect. As a result, most of these instruments can be located only in dimly-lit corners of the criminal justice system, their binding character denied or else interpreted as exceptional or somehow anomalous. The most widely employed instrument lies in the shadow of appellate review. As already pointed out, Continental trial judges are bound to justify their factual findings in a written opinion. The hierarchical supervision of this opinion gives rise to authoritative statements on the adequacy of the evidentiary support for the factual findings of the court below, and although the prevailing legal doctrine refuses to acknowledge that these statements can be the font of binding legal norms, the standards contained in these statements are actually observed. No doubt the fear of reversal exerts a degree of constraining influence on the trial judge's freedom. But it is important to emphasize that these standards are most of the time highly contextual and seldom harden into sharp-edged rules.34 It is thus only in rare instances that these standards direct 33. These rules were not unknown to nineteenth-century reformers of Continental evidence law. For a well-informed account of English evidence law by an influential German nineteenth-century commentator, see J. Mittermeyer, Die Lehre vom Beweise im Deutschen Strafprozesse (Darmstadt, 1834), 82-83. It is only in the first decade of the twentieth century that exclusionary rules became an object of serious study on the Continent. 34. A few such rules can nevertheless be abstracted from appellate court opinions. For a few samplings from German case law, see Friedrich Krause, "Grenzen richerlicher Beweiswiirdigung im Strafprozess," in Einheit und Vielfalt des Strafrechts, Festschrift fur Karl Peters, ed. Jurgen Baumann and Klaus Tiedemann (Tubingen, 1974), 32.3, 32.7.

Character of Common Law Evidence

23

the judge to attribute no value to specified information. Even rarer are situations where these standards generate demands that evidence of multiple probative potential be used only for a narrowly defined purpose.35 It is also worthy of note that appellate court pronouncements on evidentiary matters manifest no direct intention to interfere with the fact finder's reasoning process. On their face, at least, these pronouncements are but a response to the trial court's effort to buttress its findings with arguments and can thus be understood as a source of conventions that apply to justify the outcome rather than as a source of directions to be followed en route to it.36 Still, instruments can be encountered in the Continental administration of justice whose avowed purpose is to direct the trial court how to react to evidence. Consider that a growing number of Continental countries now subscribe to the view that the violation of some provisions relating to the collection of evidence may entail, as a sanction, the exclusion of information improperly procured. German scholars played a pioneering role in developing this relatively novel view, and they even coined a centipede word — Beweisverwertungsverbote—to refer to the resulting legal instruments.37 But a significant difference vis-a-vis the exclusionary regime of many common law jurisdictions remains even here: the rejection of illegal evidence is seldom mandatory. Rather, in deciding whether to exercise the exclusionary option, Continental judges are expected to weigh whether the employment of tainted evidence could bring the administration of justice into disrepute, or they are 35. Although the distinction between substantive and impeachment use of evidence is well-known on the Continent, especially among legal scholars, its employment is strongly resisted in practice. Reacting to legislative reforms encompassing this distinction, the Italian Constitutional Court has recently characterized as "irrational" the limitation of probative effect only to impeachment. See Sentenza no. 255, Gazetta ufficiale, i serie speciale, no. 24, at 23 (June 4,1992). For the strongly negative view of this distinction in Germany, see the (still valid) comments of Claus Roxin and Eduard Kern, Strafverfahrensrechty 9th ed. (Munich, 1969), 202. 36.1 shall examine the controversies surrounding the objective of the court's written opinion in Ch. 2, infra. 37. For a good description of the German system, see Michael Hofmann, "Beweisverbote im Strafprozess," Jus 587-94 (1992); Bradley, "Emerging Consensus," supra n. 19, at 208-16. Despite intense scholarly efforts to provide clarity in this area, the precise scope of rules whose violation may lead to exclusion remains uncertain everywhere and highly controversial.

24

Character of Common Law Evidence

expected to balance the negative impact of illegality against the societal interest in the repression of crime.38 Most important for present purposes, whenever trial judges come into contact with illicit but credible information, a powerful argument leveled against rejecting it is the point that the ban interferes with the fact finders' freedom to evaluate the evidentiary material. Free proof retains its bite as a regulative ideal. In the end, it is no surprise that the Anglo-American repertoire of devices telling the fact finder how to process evidence strikes Continental observers as too rich and even as inappropriate. From their point of view, the strong and unabashed ambition of Anglo-American law to influence the fact finders' reasoning from evidence belongs to that law's central animating energies. To overlook this aspiration, then, is to dim one's chances of realizing what is truly distinctive about common law evidence. It is time to pull the strings together and recapitulate. To an outsider looking in, three broad tendencies of Anglo-American evidence law appear to express its most distinctive properties. First is the complexity of evidentiary regulation, especially its departure from methods of inquiry that prevail in general social practice. Second is the great sensitivity of the law to the possible misuse of evidence —a sensitivity most prominently manifested in the rejection of probative material on the theory that it might be overvalued or might exert a biasing effect on the decision maker. The last is the pronounced aspiration of Anglo-American law to structure the fact finders' analysis of evidence. How can these characteristics of common law evidence be explained? To what extent can they be attributed to the enlistment of lay judges in the admin38. Admittedly, criminal law legislation of some Continental countries employs mandatory exclusionary formulas. See supra n. 19. Italy is again among these apostatic few. Using mandatory language, in 1988 the Italian legislature adopted a wholesale ban on the employment of illegally obtained evidence. Codice di procedure* penale, art. 191. But the potentially far-reaching effects of this ban were quickly contained, partly by legislative amendments, partly by court decisions. Trial judges, for their part, made no bones about their irritation at the legislative interference with their freedom in handling probative material. Contrast the discretionary approach prevailing on the Continent with American exclusionary practice. Here, the trial judge is required to exclude evidence whose illegality has been established, and appellate courts are obliged to reverse if improperly admitted evidence has been found to have influenced the judgment. At least in theory, the prosecution carries the burden of persuasion that tainted evidence exerted no influence on the judgment.

Character of Common Law Evidence

25

istration of justice, to the trial-centeredness of proceedings, or to the pressures of the adversary system? Questions of this nature will from now on assume center stage. But on the pages that follow many additional peculiarities of the Anglo-American fact-finding style will come into view—some of them more striking than any encountered in examining evidentiary regulation. It bears repeating that the idiosyncrasies of this style depend as much on evidence law itself as on the manner in which it is enforced. As with the performance of music, so with adjudicative fact-finding: what counts is not only the score, but also the instruments and the players. And it is to the latter that I now turn.

2,

The Archetypal Trial Court

When the peculiar traits of Anglo-American evidence are related to the organization of the trial court, the palladium of the common law—the jury— surges to the center of attention, and evidentiary arrangements are explained by the needs that arise when occasional amateur judges are chosen to determine issues of fact. I will argue that, taken by itself, the jury factor does not require technical evidence law at all. Indeed, as we shall shortly see, the employment of lay adjudicators can even be used as a powerful argument against the saturation of fact-finding activities by law. A space for technical evidence law begins to open up only when the trial court is split into two parts — one lay, the other professional. Even after this internal differentiation, evidence law of the genre described in the previous chapter need not evolve. But the more the two parts of the tribunal draw apart, the more favorable the institutional climate becomes for cultivation of rules that take probative information away from lay judges or attempt to structure their analysis of evidence.1 This suggests that the fission of the tribunal into two parts in need of coordination and adjustment deserves more attention than it usually receives as a i. In Chapter 4, the passive role of the Anglo-American judge in proof-taking will emerge as the primary culprit for the increased rigidity of the tribunal's internal division.

26

The Archetypal Trial Court

27

rationale for Anglo-American fact-finding arrangements. By examining the operation of the bifurcated tribunal, one can view many features of the evidentiary style that are analytically independent from lay adjudication: they could easily emerge even if the tribunal consisted of two professional parts.2 The study of court bifurcation also reveals that many widely shared evidentiary rules acquire a common law flavor only through immersion in the divided court setting. For all these reasons, I shall expose the evidentiary implications of the bifurcated court to special scrutiny. But before I do, I must first reexamine the explanatory force of the jury factor.

Lay Adjudicators The best place from which to start rethinking the jury rationale of AngloAmerican evidentiary procedures is to acknowledge the strains between lay adjudication and the subjection of fact-finding activities to technical legal regulation. Left to themselves, amateur judges are likely to follow a method of fact-finding with which they are familiar —a method, that is, in which the treatment of evidentiary material deviates as little as possible from conventions and strategies used in ordinary life and personal affairs. Even the briefest glance at systems of pure lay adjudication confirms this intuition. For example, so long as administration of justice in ancient Rome remained in the hands of amateur judges, hardly any technical evidence law evolved: rules of evidence began to spread only in postclassical times, concomitantly with the bureaucratization of the judiciary during the Empire.3 Nor did the old English tradition of adjudication by amateur justices of the peace beget technical evidence law.4 But the growth of technical evidence law encountered obstacles even when professional judges joined lay persons on the deciding a. Such a tribunal is not a mere theoretical possibility. Because of the growing complexity of modern life, this new form of trial court is likely to become increasingly important in the not-too-distant future. Courts with two professionally dominated parts have already been proposed on the Continent: one part would specialize in developing evidence, while the other would sit back and evaluate the information thus obtained. See, e.g., Claus Roxin, "Die Reform der Hauptverhandlung," in Probleme der Strafprozessreform, ed. Hans Liittger (Berlin, 1975), 59, n. 7. 3. See Giovanni Pugliese, "La preuve dans le proces remain de 1'epoque classique," in 17 Recueils de la societe Jean Bodin (Brussels, 1965), 1:277, 3°7> 3J 8-19; Bruce Frier, The Rise of the Roman Jurists (Princeton, 1985), 199-2.12.. 4. John Dawson, A History of Lay Judges (Cambridge, Mass., 1960), 136-44. For interesting observations, see Henry J. Maine, Village-Communities in East and West (New York, 1876), 2.95, passim.

28

The Archetypal Trial Court

tribunal — provided that lay persons continued to be perceived as autonomous decision makers. These obstacles can be observed in the early period of American jury history. But nowhere were they more visible than in late-eighteenth-century France. Following the destruction of the old order, France borrowed the English jury trial for the adjudication of serious criminal cases.5 Instead of turning into a matrix of technical evidence law, the jury trial became a vehicle for rejecting the Roman-canon law of proof and replacing it by the free proof regime discussed in the previous chapter. Jurors were imagined as representatives of the peuple souverain, and it seemed inappropriate to empower politically suspect professional judges to control the flow of information to the jury—let alone to interfere with its reasoning from evidence. As these brief historical vignettes intimate, evidence law of the common law variety does not sanction or canonize the cognitive preferences of lay fact finders. To the extent that this genre of law is specifically related to lay adjudication at all, its aim is to constrain and control, rather than to facilitate or release, lay cognitive inclinations. SHORTCOMINGS OF LAY DECISION-MAKING

It is therefore no wonder that the oldest and most widely accepted justification for distinctive Anglo-American evidence rules is the need to compensate for the alleged intellectual and emotional frailties of amateurs cast in the role of occasional judges. The law must provide correctives, we are told, for the proclivity of lay persons to misvalue certain types of information or to reason from them inappropriately. Although this argument is primarily urged as a justification for exclusionary rules, it also applies to evidentiary instructions and a variety of other fact-finding practices. Before subjecting this rationale to scrutiny, it is worth pausing to note 5. As with the attraction to conviction intime, the Continental love affair with the jury was one of short duration. Country after country instituted reforms requiring jurors to deliberate with a panel of professional judges, with the consequence that the jury turned into the lay component of a professionally dominated unitary tribunal. In Western Europe, true criminal juries survive today only in Belgium, Switzerland, and Denmark. On the reasons for this transmutation of the jury, see infra n. 7. Only in a few countries struggling to establish a post-totalitarian administration of justice does the criminal jury still hold an allure. For largely nostalgic attempts to resuscitate the old Tzarist jury, see Stephen Thaman, "The Resurrection of Trial by Jury in Russia," 131 Stan. J. Intl. L. 61141(1995).

The Archetypal Trial Court

29

that its premises disturb the nexus of values that supports the traditional Anglo-American machinery of justice. One would expect a legal process that glorifies novice amateurs as fact finders to presume their intellectual and emotional capacity for the job. Even if their cognitive weaknesses were treated as a fonnosa deformitas — z failing of those we love—their fitness for the factfinding role still comes under a cloud. The fact remains that evidentiary arrangements which rest on the assumption that jurors are poor fact finders clash with the organizing energies of the traditional justice apparatus. It is certainly true that the jury's task is not limited to fact-finding: jurors also relate the law to the facts of the case, sometimes even fine-tuning legal standards as they do so. Hence, one can argue, even if jurors are not the best fact finders, they are —on the whole—the optimal adjudicators. This is not a very powerful argument, however. The grain of knowability of facts we seek to determine in adjudication varies greatly, and with respect to many of these facts, it is notoriously difficult to separate the brutishly empirical from the evaluative and the juridical. In other words, the separation of fact from law does not implicate the correlation of two different realms of being. And this being the case, the suspicion of incompetence in the fact-finding domain easily spills over into the domain of legal judgments. Ultimately, then, if jurors are indeed poor fact finders, their role as paradigmatic fact finders can safely be justified only on noninstrumental grounds—that is, as a desirable form of participatory democracy. To the extent, however, that instrumental values carry increasing weight in matters of public policy, the belief that amateurs are deficient in performing fact-finding tasks weakens their status as the queen bee of the justice system.6 Having noted this darker side of the lay incompetence rationale, I want now to suggest that it needs to be more sharply defined than in the prevailing convention. Greater clarity of definition is needed for a variety of reasons, but primarily for the sake of identifying evidence rules that can be justified solely in jury trials from those that are applicable even in other kinds of AngloAmerican adversary proceeding. 6. On the Continent, where the machinery of justice is dominated by professional civil servants, Hegel's lament—"the masses are miserable hands at judging" — has a very long history. In thirteenth-century Italy, for example, while laymen were still permitted to sit on some courts, they were disparagingly referred to as "judices idiotae" Antonio Fertile, Storia deldiritto Italiano, zd ed. (Bologna, 1966), vol. 6, pt. i, at 2.07. As suggested supra n. 5, the fascination with the criminal jury after the French Revolution was only a brief interlude.

3o

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At the outset let me concede that, in shaping exclusionary rules, common law judges were often motivated by concerns that lay minds might misvalue certain classes of information. But although important in tracing the origin of some evidence rules—primarily those of exclusion—such concerns do not suffice to establish their rationale. What must further be shown is that the excluded classes of information have a greater potential to skew lay than professional judgment. For if both lay and professional fact finders are equally prone to err when exposed to particular information, its rejection is predicated on cognitive disabilities broader than those afflicting lay minds alone. If an exclusionary rule is justified by the presumed cognitive shortcomings of the jury, plausible grounds must be shown for the belief that a single judge acting in lieu of a group of lay adjudicators would perform better in evaluating the rejected information.7 The rationale's reach. When the lay disability rationale is framed in this way, the scope of its applicability shrinks dramatically. It is at its most persuasive in regard to information able to emotionally overwhelm the jury: jurors are newcomers to the forensic drama and are insufficiently case-hardened easily to discipline the squads of their emotions. What can best be explained in terms of lay cognitive infirmities is therefore only the rejection of gruesome evidence, evidence capable of inflaming hostility or creating excessive sympathy, and a small number of similar intrinsic exclusionary rules.8 To a degree, the ra7. On individual versus group fact-finding, see Reid Hastie, Steven Penrod, and Nancy Pennington, Inside the Jury (Cambridge, Mass., 1983), 2.30. Note that the work of the Continental jury was seldom attacked on the ground that it misvalued evidence— despite the fact that it was exposed to a wealth of information inadmissible in AngloAmerican trials. The tenor of Continental criticism was on acquittals motivated by the fear that judges would impose a harsher sentence on the guilty than jurors thought appropriate. The conversion of the jury into a mixed tribunal was thus preceded by a reform allowing jurors to have a voice in sentencing. But other forms of what common lawyers call "jury nullification" were also invoked. For the early history of jury criticism, preceding its rejection, see Adhemar Esmein, History of Continental Criminal Procedure (Boston, 1913), 447,468-69,474, 563 passim. 8. An example of gruesome evidence offered in a recent cause celebre is autopsy photographs of O. J. Simpson's wife Nicole. For illustrations of material capable of creating undue sympathy for a civil litigant, see Grimes v. Employers Mutual, 73 F.R.D. 607 (1977) (plaintiff who suffered loss of a leg and a hand in an accident cannot prove the impact of his injuries by playing a post-accident film that shows him hugging his daughter and lighting a cigarette for his quadriplegic brother).

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tionale can also support the rules excluding information capable of misleading individuals who lack the legal knowledge of professional judges.91 say to a degree because most dangers of faulty inference stemming from this particular source could probably be obviated by suitable judicial instructions rather than by the outright and costly rejection of otherwise probative information. With respect to most other exclusionary rules, the applicability of the rationale becomes problematic—even for the hearsay rule, so prominent in classical evidence law. The rule is conventionally justified by the danger that amateur fact finders might overvalue information stemming from secondhand sources. Assume that this concern is well-founded.10 The question then becomes, why is the professional judge better equipped than are jurors to cope with the main problem of derivative evidence—compensation for the absence from the courtroom of the original declarant? The reasons for optimism in this regard are far from clear.11 As noted in the previous chapter, a great variety of adjudicative systems—past and present—evince a concern that professional judges too could easily be led to misvalue hearsay. These concerns persist in contemporary Continental procedure—at least on the criminal side of the court's docket—generating restrictions on the employment of derivative sources of information.12 The frailty of lay decision-making is equally unconvincing as a rationale for a body of evidence rules that rejects information about a person's character or past when this information is offered for the purpose of proving 9. Illustrations in point are rules excluding information about withdrawn guilty pleas and about offers of compromise. See also Dale Nance, "The Best Evidence Rule," 73 Iowa L. Rev. 227,2.87-88 (1988). 10. Some recent empirical research indicates, albeit not conclusively, that jurors actually attribute little value to hearsay. See, e.g., Peter Miene, Roger Park, and Eugene Borgida, "Juror Decision Making and the Evaluation of Hearsay Evidence," 76 Minn. L. Rev. 683-700 (1992,); Richard Rakos and Stephan Landsman, "Researching the Hearsay Rule," 76 Minn. L. Rev. 665-82. (1992.). 11. For a valiant attempt to articulate this optimism, see "Note, Improper Evidence in Jury Trials: Basis for Reversal?," 79 Harv. L. Rev. 407 (1965). 12. It is true that Continental safeguards against hearsay seldom require that the drastic step of excluding it from the decision makers' data bank be taken. See infra n. 24. But it would be rash to conclude that such restraint rests on the assumption that professionals can neutralize the perils of derivative information better than an independently deciding body of amateurs. In reviewing the unitary character of Continental courts and the episodic nature of Continental proceedings, we shall discover more compelling reasons for the milder Continental response to hearsay dangers.

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an individual's propensity to engage in specified behavior. There is no solid ground in psychology for the belief that only novice fact finders succumb to the temptation of drawing overly negative conclusions from a person's unsavory life history while professional judges are immune —even in close cases —to the seductive call of propensity inferences. That the blinders of the profession exercise such a strong insulating effect is quite unlikely. Judicial assurances to the contrary could well be instances of self-delusion.13 The rejection of propensity evidence —if this rejection is indeed defensible—is more persuasively explained by human cognitive imperfections, tout court. It has been suggested, at least for American criminal procedure, that the existence of a person's criminal record has a much weaker association with the probability of guilt than an ordinary person would intuit. Guilty criminal defendants with a record are disproportionately likely to take advantage of concessions in exchange for a guilty plea, with the result that among persons who decide to stand trial despite the handicap of a prior conviction, the proportion of the innocent must be quite high.14 If this self-selective process actually takes place, professional judges could indeed excel amateurs in evaluating a subset of propensity information—provided, of course, that knowledge of this self-selection is widely disseminated in curial circles. But then again this advantage of professional judges does not spring from their superior factfinding acumen: it is based instead on easily transmittable insiders' knowledge. Can the withdrawal of certain types of statistical and scientific information from the jury be justified by lay cognitive infirmities? There is no denying that average jurors do experience difficulty in understanding and properly 13. For some empirical evidence that professional judges also attach an importance to an accused's criminal record, see Harry Kalvin and Hans Zeisel, The American Jury (Boston, 1966), 121-33. See also Leo Levin and Harold Cohen, "The Exclusionary Rules in Nonjury Criminal Cases," 119 U. Pa. L. Rev. 905, 911-14 (1971). Occasionally one comes upon open admissions by Anglo-American judges that their attitudes toward propensity evidence are not altogether different from that of the rest of humanity. See, e.g., State v. Hutchinson, 260 Md. 2,2.7, 2.71 (1970). Of course, a degree of difference between professional and lay attitudes toward propensity evidence should not be ruled out: jurors may be somewhat more inclined in some situations to convict an accused just because he is a bad person, rather than because they are convinced he committed the crime charged. But does this small difference—if indeed it exists—justify a radically different approach to evidence in jury and nonjury contexts? 14. See Richard Lempert and Stephen Saltzburg, A Modern Approach to Evidence (St. Paul, Minn., 1982), 217-18.

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evaluating this type of evidence.15 But is the average trial judge not similarly baffled by complex mathematics and perplexed by arcane scientific insights? Modern science increasingly confronts all generalist adjudicators—whether legally trained or not—with information that only experts have no difficulty understanding. The situation in Continental countries is revealing: there, professional judges handle complex scientific evidence by appointing experts to whose opinions they readily defer.16 With regard to scientific information, then, both professional and amateur fact finders are lay persons, equally hindered in seeking enlightenment. Once again, the rejection of this information cannot specifically be attributed to the frailty of jurors' reasoning. Clashing images of furors' minds. There is an independent problem with justifying Anglo-American exclusionary rules by the shortcomings of lay mental processes: to posit these shortcoming clashes with assumptions about the quality of jurors' mental operations that underpin other areas of AngloAmerican evidence. Consider the cognitive premises of limited admissibility rules, for example. When jurors are told to use a piece of evidence for a narrow inferential purpose, the successful completion of this task often calls for sophisticated mental operations. Preventing one's inference from overflowing into legally forbidden territory can even be a real psychological feat—if it is psychologically possible at all. One of the most obvious examples is the demand that a defendant's criminal record be used only as it affects the credibility of his in-court testimony. To prevent the ripple effects of this information from producing a broader probative impact on belief formation presupposes remarkable self-control and intellectual delicacy. Not much less sophistication is needed to consider an item of information only for the purpose of determining whether it was made (rather than also for its truth) or to employ a piece of information only with regard to one of several joint charges arising from a single event. Such examples could easily be multiplied. Aside from instructions enforcing the limited admissibility rules, a great 15. Whether they are overly impressed by it or tend to underestimate it is not altogether clear, however. For a good overview of the resulting controversy, see Christopher Mueller and Laird Kirkpatrick, Evidence under the Rules, 2.d ed.(Boston, 1993), 744-47. 16. For France, see James Beardsley, Proof of Fact in French Civil Procedure, 34 Am. J. Comp. L. 459, 484-85 (1986); for Germany, Helmut Pieper, Leonie Breunung, and Giinter Stahlmann, Sachverstandige im Zivilprozess (Munich, 1982.), 10. In the epilogue I shall return to this question —an important aspect of the increasing "scientization" of fact-finding.

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number of other evidentiary charges to jurors also assume their capacity to make fine distinctions or to be disciplined enough to resist the lure of intuitively compelling conclusions. Witness the prohibition against drawing inferences from the suggestive behavior of procedural participants, such as their silence in some situations, or the instruction to disregard persuasive but improperly obtained information. Many charges to the jury relating to burden of proof questions are equally demanding. In all these instances, doubts legitimately arise whether even well-trained and seasoned professional judges could obey the law's mandate. A glaring inconsistency thus emerges between differing views of the cognitive powers of lay fact finders that undergird different segments of evidence law. As an astute commentator put it bluntly long ago, whereas some rules assume the jurors to be "a group of low grade morons," other rules take an unduly optimistic view of their mental powers.17 The significance of this inconsistency can be downplayed by suggesting that instructions whose observance presupposes intellectual prowess and emotional maturity are not meant to govern jury decision-making at all, but are intended instead to serve other, specifically legal needs of the justice system.18 This suggestion touches a raw nerve in the jury rationale for evidence law. Are so many instructions on evidentiary questions —despite their wording—purported to govern matters other than the belief-formation processes of the jury? The answer to this question depends on the precise character of mental operations that produce the fact finders' "credal states."19 A propos these 17. Edmund Morgan, Some Principles of Proof under the Anglo-American System of Litigation (New York, 1956), 105. A similar inconsistency is apparently evident in the treatment of jurors on the part of many judges. See Warren K. Urbom, "Toward Better Treatment of Jurors by Judges," 61 Neb. L. Rev. 409,42,5 (1982,). 18. An example of this strategy is Ronald Allen, "The Nature of Juridical Proof," 13 Cardozo L. Rev. 373, 398 (1991). Let me add hastily that my conclusions should not be interpreted as an attempt to deny that instructions serve purposes other than those implied in their wording. In fact, I shall soon deal with some of these purposes, both in this chapter and the next. 19. The results of scientific research based on clinical experiments suggest that at least some judicial instructions are ineffective in blocking the influence of forbidden information on jurors' decisions. See, e.g., Roselle Wissler and Michael Saks, "On the Inefficacy of Limiting Instructions," 9 Law & Hum. Behav. 37 (1985); Jonathan Caspar and Kennette Benedict, "The Influence of Outcome Information and Attitudes on Juror Decision Making in Search and Seizure Cases," in Inside the Juror, ed. Reid Hastie (Cambridge, Mass., 1993), 66. See also Saul Kassin and Laurence Wrightsman, The American Jury on Trial (New York, 1988), 108-11.

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operations, two contrasting theoretical conceptions have been elaborated in psychology and cognitive science. According to what may be called the "atomistic" model, fact finders attach probative value to discrete items of evidence and arrive at the final decision by aggregating and desegregating them —each item being treated as a pebble in composing a mosaic.20 If this conception approximates reality, skepticism about the efficacy of even the narrowest of limiting instructions is unjustified. On this view, it is not unrealistic to demand that the trier of fact attribute no weight to an item of information or strictly follow postulated lines of inference. The "holistic" conception of mental processes suggests that the inquiring spirit cannot disentangle the weight of discrete items of information from global judgments, or —in a variant of this view—it does not arrive at the decision by assigning values to discrete items of information and then aggregating these values.21 If this "gestaltist" model captures psychological realities, then many evidentiary instructions are indeed useless as a vade mecum to belief formation. If people cannot evaluate items of information in isolation, the law's request that they neglect some items in forming their opinions or that they use these items only for narrowly designated inferences poses psychologically insuperable challenges to the court. The relative merits of atomistic and holistic schemata are hotly contested on 20. The term atomism is borrowed from William Twining, Theories of Evidence: Bentham & Wigmore (Stanford, 1985), 3,183-85. Atomism comes in several versions. According to probabilistic versions, the formation of "credal states" conforms to the probability calculus: individuals are capable of assigning graduated probabilistic values to items of information. According to nonprobabilistic versions, "credal states" do not behave like probabilities: each item of information is independently either believed or not. For the latter view, see, e.g., Alvin Goldman, Epistemology and Cognition (Cambridge, Mass., 1986), 32.6-2.8. 2,1. The term holism is likewise from Twining, Theories of Evidence, supra n. 2.0, 3,183-85. A popular variant of holistic theories claims that fact finders fix their "credal states" by considering how the bits of evidence fit into larger interpretive schemes, stories, or narratives. For the American variant of this model, see Nancy Pennington and Reid Hastie, "A Cognitive Theory of Juror Decision Making: The Story Model," 13 Cardozo L. Rev. 519 (1991). For similar views in Continental literature, see Robert Weimar, Psychologische Strukturen richerlichen Entscheidung (Basel, 1969), 46-47. A recent Dutch work in this field draws heavily on American empirical research. See W. A. Wagenaar, P. J. van Koppen, and H. F. M. Crombag, Anchored Narratives: The Psychology of Criminal Evidence (London, 1993), 16-36. A good overview of current models of decision-making is in Hastie, Inside the Juror, supra n. 19, at 10-2.9.

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a variety of levels. But when understood as alternative descriptions of how triers of fact actually think about evidence and fix their beliefs, holistic theories seem in most situations to reflect native human mental processes better than their atomistic alternatives.22 Introspectively, this appears quite plausible: when an inadmissible item of information is persuasive to the fact finders, for example, or a disallowed inference is really compelling to them, a credent state of persuasion is likely to arise in their minds, and this belief cannot be ostracized by mere judicial fiat. This does not imply, however, that evidentiary instructions are never influential on the outcome of an individual's deliberative process. Some can be helpful in lifting the fog of indecision: a decision maker, unable to make up his mind, can be nudged toward a particular finding of fact by an instruction on evidentiary questions. Nor should it be taken for granted that adjudicators always decide according to belief. In fact, it is characteristic of Anglo-American evidence that it downplays the importance of subjective belief as the criterion controlling proof standards. Most of the time, standards of proof emphasize intersubjective yardsticks —such as the viewpoint of a reasonable person exposed to competent information.23 These benchmarks provide evidentiary instructions with a realistic field of application: even if psychologically impossible to follow, an instruction can induce a juror to question whether his belief can survive rational scrutiny. And when this questioning takes place, the juror's decision can arise from an effort to seek a "reflective equilibrium" be22. In some situations, however, native human responses to evidence seem to involve a combination of both atomistic and holistic mechanisms. For thought-provoking remarks on this point, see Lola Lopes, "Two Conceptions of the Juror," in Hastie, Inside the Juror, supra n. 19, at 256; Peter Tillers, "Mapping Inferential Domains," 66 B.U. L. Rev. 883 (1986); Michele Taruffo, La Prova dei fatti giuridici (Milan, 1992), 281,290-93. "Atomism" can also be of value as a theory suggesting a more reliable model of processing evidence than untutored strategies presently used in adjudication. On this "prescriptive" use of atomism, see William Twining, Rethinking Evidence (Evanston, 111., 1994), 325. I shall soon return to atomistic and holistic approaches to evidence, but not in the sense of two alternative belief formation models. Rather, I shall invoke this opposition in discussing ways in which we argue about evidence and justify findings already made. 23. The criminal defendant is thus entitled to an acquittal upon doubts that are interpersonally defensible, or "reasonable," rather than upon whatever doubts the fact finder might actually entertain. As we shall soon see, Continental proof standards insist much more on actual conviction as the controlling criterion. See infra n. 29.

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tween outcomes supported by his (indelible) subjective beliefs and outcomes mandated by impersonal analysis of evidence. But at this point conflicting images of the juror's mental prowess re-enter the picture: to seek this equilibrium calls for a capacity for dispassionate rational judgments, and this cannot be reconciled with the notion that occasional, amateur adjudicators are afflicted by cognitive and emotional disabilities. All things considered, then, it seems fair to conclude that the frailty of lay minds, widely accepted as a rationale for Anglo-American evidence law, explains much less about its distinctive contours than is commonly thought. Juryrelated factors with greater explanatory force should be sought elsewhere. ORGANIZING JURY DELIBERATIONS

So far I have focused on the individual level of juror decision making. But in thinking about the relationship between the jury and the character of Anglo-American evidence, collective aspects of fact-finding cast a much longer shadow. Anglo-American jurors are not Rousseau's citizens in pursuit of the general will: they do not decide in the privacy and solitude of their own thoughts.24 After all, we have a jury system rather than a juror system: the verdict is expected to emerge via spirited exchanges among equal citizens working out their differences. These exchanges assume a particular poignancy, of course, in those jurisdictions that retain the pristine requirement of unanimity. There, argumentative impasses are more likely to emerge than under a regime of majority vote: the danger of decisional deadlock looms larger.25 The fact that the verdict is supposed to spring from the drama of democracy explains the intense preoccupation of Anglo-American law with problems of small-group decision-making. The need arises to give structure to communication among amateur adjudicators. They must be prevented in their arguments from straying too far from matters the law regards as vital or germane. This concern with collective aspects of decision-making requires another look at 2.4. On the method of searching for the volonte generate, see "Jean-Jacques Rousseau," in On the Social Contract, ed. Roger Masters (New York, 1978), 61. In several Continental countries jurors were not permitted to deliberate but were to come to decisions individually without discussing the case with their fellow jurors. For Italy, under the Criminal Procedural Code of 1913, see Vincenzo Manzini, Trattato di Procedura Penale Italiana (Turin, 1914), 431. 2.5. Research with mock juries provides an empirical pied-a-terre for this point. See, e.g., Hastie et al., Inside the Jury, supra n. 7, at 31-32,, 151-74.

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limiting and cautionary instructions, partial admissibility rules, and similar legal instruments: their principal target is located in the sphere of social rather than individual epistemology. Notice that jurors do not always enter deliberations with their opinions fully shaped. Even those who have made up their minds in advance of group deliberations do not always vote according to initial belief. They may be persuaded to change their views, or, as noted already, they may arrive at the conclusion that their beliefs are unsustainable in light of arguments advanced in the jury room. The fact that verdicts are thus born in the crucible of jury deliberations invests with practical significance even those instructions that are useless if understood as devices governing the development of individual credent states. A judicial charge that an item of evidence be ignored, for example, or that an inference be forgone, can foreclose otherwise persuasive lines of argument. This foreclosure, in turn, can easily influence the verdict—especially in close cases: a juror whose beliefs are still being formed may remain unpersuaded for lack of a powerful argument, whereas a juror whose beliefs have already been shaped may—for the same reason — be unable to defend her views and end up voting contre coeur. To be sure, empirical data suggest that jury verdicts typically follow initial majorities. But this does not turn the above scenario into a mere theoretical possibility: initial jury votes are usually preceded by at least some discussion capable of producing the effects I have just mentioned. Besides, researchers tell us, reversals of initial majorities do sometimes occur, and it cannot be ruled out that in some of these cases jurors who initially were in the minority prevailed in the end because of argumentative handicaps imposed on the original majority by limiting or cautionary instructions. The concern with small-group deliberations can be confirmed by briefly returning to Anglo-American standards of proof. Because these standards usually invoke intersubjective criteria, they encourage a detached mode of reasoning making surrender to intimately held beliefs more difficult. As noted in the previous section, these standards can lead a juror to realize that the beliefs he holds cannot rationally be justified. But the subsequent quest for harmony between belief and argumentatively defensible positions takes place much more often in the noise of jury debate than in the quiet of an individual juror's internal soliloquy. Nor should it be overlooked that—occasionally — the legal system does not conceal its purpose that personal beliefs, even if strongly held, should be trumped by intersubjectively valid decisional criteria. A telling example of this openness is found in supplemental charges to deadlocked juries

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urging its recalcitrant members to abandon opinions that fail to satisfy the test of reasonableness. Where these charges are given, jurors are clearly pressured to negotiate their differences, giving up personal beliefs so that a consensus, necessary for the verdict, can be arrived at.26 The emphasis given external benchmarks for the decision mirrors the special needs of a legal process that authorizes ordinary people to adjudicate —especially if they are required to decide by unanimous vote. And much as this authorization is characteristic of common law procedure, so are external evidentiary standards. Contrast the Continental systems. They do not have to cope with problems of the more strongly egalitarian, purely amateur environment of jury deliberations.27 Proof sufficiency standards are primarily addressed to problems of individual decision-making and usually proclaim personal belief as the controlling criterion. This orientation is again related to institutional factors. Ideas on the psychology of adjudicative decision making evolved on the Continent in a setting 2.6. The leading American case is Allen v. United States, 164 U.S. 492. (1986). In some common law countries, judges are in the habit of asking jurors to vote what they believe rather than what seems to them intersubjectively acceptable. See, e.g., Rex v. Kritz [1950] i K.B. 82,, 89 (1949); Briginshaw v. Briginshaw, 60 C.L.R. 336 (Austrl. 1938). But this judicial rhetoric cannot easily be squared with prevailing proof standards. That the rhetoric is used at all testifies to the strong appeal of personal belief as a standard for adjudicative decision-making. The reason for this appeal is not difficult to perceive: personal belief is a guarantor of personal responsibility and of personal commitment. See Michael Polanyi, Personal Knowledge (Boston, 1958), 2.4-2.5, 32. Observe, in passing, that deadlocked juries are not the same threat in all common law jurisdictions. For example, England allows of late a ten-to-two verdict after two hours of jury deliberation. See Regina v. Thornton, 89 Grim. App. 54 (1988). 2.7. Even in the limited sphere in which the Continental jury operated, the problems of amateur deliberations were of lesser magnitude than in common law countries. For example, in a conscious departure from the greatly admired English jury model, the French revolutionary parliament rejected the unanimity requirement for jury verdicts. See Adhemar Esmein, A History of Continental Criminal Procedure (Boston, 1913), 417. The majority vote has remained a characteristic feature of the Continental jury ever since. Even in its newest variant—the Russian jury—the majority vote suffices when jurors are unable to reach a unanimous verdict within three hours of deliberation. See Thaman, "Resurrection of Trial," supra n. 5, at 12.5. It should also be noted that in the Continental model of the jury trial, the presiding judge typically assembled the evidentiary material for amateur judges. The jury's database was therefore simpler than the mass of "contrapuntal" information that confronts Anglo-American jurors.

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in which the original decision maker was the Roman-canon judge sitting alone.28 Even as trial courts turned collegial and gradually came to include lay members, the concern with small-group argumentation remained less vital than in common law countries. The towering position of professional judges reduced the need specifically to regulate the court's deliberations, and the absence of the unanimity requirement made remote the possibility that abandonment of personal belief could be required to avoid deadlocks. It is no accident that Continental legal folklore still accords personal conviction pride of place among evidentiary standards for the court's decision.29 What lesson can be drawn from all this? It appears that limited admissibility rules and evidentiary instructions are of little significance if conceived as protection against individual cognitive shortcomings. They fare much better, however, when understood as devices directed at influencing group deliberations. So understood, both instructions and limited admissibility rules can be defended as mandated by the urgency to organize arguments about evidence in tribunals in which citizen-judges, enlisted in the administration of justice ad hoc, struggle to arrive at a verdict. 2.8. The earliest decision-making theories were specifically devised for ikejudex rendering the judgment ut singulus. For a fourteenth-century example, see Bartolus de Saxoferrato's commentaries on the Digest of Justinian, at Dig. 12.2.31, no' 25' Because many evidentiary questions—especially the assessment of conflicting evidence—had to be resolved by the judge according to his judgment—motu animi sui—psychological aspects of decision-making attracted early attention. This by itself suggests that Roman-canon law did not mandate an impersonal or mechanical counting of proofs. For a good summary of Roman-canon views on psychological sequences of proof, see Jean Philippe Levy, La Hierarchie des preuves dans le droit savant du Moyen-Age (Paris, 1939), 29-30. 29. As pointed out in Chapter i, the "intimate conviction" that incriminating facts exist is no longer regarded as a sufficient condition for a guilty verdict in criminal cases. See Roger Merle and Andre Vitu, Traite de droit criminel, 2d ed. (Paris, 1973), 2:143. The view now prevails that factual findings must be acceptable on intersubjectively compelling grounds. Nevertheless, the standard of full personal conviction has not disappeared, at least as a talismanic phrase used to justify the trial court's findings. In several Continental countries, for example, appellate courts reverse criminal judgments if full conviction is not expressed by trial judges that facts supporting the defendant's guilt exist. See, e.g., the opinion of the German Supreme Court as reported in Neue Zeitschrift fur Strafrecht (1987), 1:476. Surprisingly, the standard of full conviction is often said to be applicable in civil cases as well. See Heinrich Nagel, Die Grundziige des Beweisrechts im europdischen Zivilprozess (Baden-Baden, 1982), 72-85; Gerhard Walter, Freie Beweiswiirdigung (Tubingen, 1979), 88-91,173-76.

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COMPENSATING FOR CRYPTIC VERDICTS

In setting out to examine yet another jury-related rationale for common law evidence, it is useful to begin by noticing a paradoxical blend of the articulate and inarticulate, the transparent and the opaque in Anglo-American jury trials. Prior to its presentation to the jury, evidence is meticulously scrutinized for its probative potential and carefully filtered through the screen of exclusionary rules. The jury is then instructed how to handle the database emerging from this sifting process. But following such elaborate preliminaries, the jury then deliberates in secret and returns an enigmatic decision without offering any insight into its decision-making: a typical verdict does not disclose what facts were found and on what grounds, unless interrogatories were submitted for the jurors to answer. How can this curious coexistence be explained between an articulate, transparent prelude and an inarticulate, impenetrable epilogue to fact-finding?30 The key to the riddle lies in the realization that unexplained jury verdicts suffer from a legitimacy deficit: persons who exercise authority in a democratic polity are expected to give reasons for what they decide or do.31 This requirement applies to all courts of law—including tribunals composed of 30. Another paradox is worthy of a footnote. At the proof-taking stage, great pains are taken by counsel to exclude information capable of unduly engaging jurors' emotions. But at the close of evidence, as they spread the peacock feathers of their rhetoric, counsel are permitted in closing argument to appeal both to logical reasoning and to the logic of sentiment. Having first displayed great concern for the fact finders' emotional vulnerability, the procedural system relaxes this attitude and permits self-interested procedural participants to play on the chords of fact finders' emotions. It thus remains uncertain whether in the end fact finders were unduly swayed in their deliberations by emotional rhetoric with few moorings in the evidence adduced. 31. Originally, the jury may have been perceived as the consensual voice of the countryside (vox populi) whose unexplained verdict paralleled the inscrutability of the voice of God (vox Dei) manifested in trial by ordeal. See William Holdsworth, A History of English Law, yth ed.(London, 1956), 1:317. Compare Thomas Starkie, "On the Trial by Jury," Law Review and Quarterly Journal of British and Foreign Jurisprudence 2:370 (1845) (repr. Boston, 1880). When the intellectual seeds of classical evidence were sown, however, this original understanding of enigmatic verdicts was no longer accepted. The legitimation problem did not immediately arise, however, because judges were for a while in a position to probe informally the basis of the verdict preferred by the jury and to reject it if they found the basis defective. But when the collaboration of judge and jury in the formulation of the verdict came to an end, legitimacy issues began to exert their subtle influence.

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citizen-judges. Although celebrated as an avatar of democratic participation in government, the latter should also (ideally) be reason-givers, their decisions subject to critical scrutiny.32 But can citizen-judges elaborate suitable reasons for the decisions they make? Seeking an answer to this query calls for a special glance at what it means to ask a tribunal to give a reasoned judgment. On one view of the subject, giving reasons requires the description of the decision's genesis: an accurate account ought to be given of thought processes that produced the verdict. But when understood in this sense, the imperative is difficult to satisfy; full compliance with it may well be impossible. Most psychologists maintain that factors that contribute to human responses to evidence are not fully transparent to the cognizer or even amenable to rendition in prepositional form. A discontinuity seems to exist—a leap, as it were — between evidence and conclusion. Whisperings of intuition, volitional impulses, even raw emotions combine to produce a decision. As Pascal famously stated, the heart has its reasons that reason knows nothing about.33 Still further complexities in accounting for the genesis of the fact-finding decision arise in collective tribunals. A host of sociopsychological factors—some of them insufficiently understood—operate in this environment to determine the outcome of deliberations. Moreover, the tribunal's judgment is typically composed by the presiding judge alone. And he mainly guesses at the reasoning and other mental operations that led other members of the tribunal to the verdict. It is still possible to insist, of course, that the giving of reasons should center on the decision's genesis. If a full description of what produced a finding 32.. It has forcefully been argued that in the Western legal tradition, the exercise of authority implies the elaboration of suitable reasons for decisions. See Carl Friedrich, "Authority, Reason and Discretion," in Authority, ed. Friedrich (Cambridge, Mass., 1958), 2,8-31. Demands for the decision maker's accountability, of course, are especially strong in contemporary democracies. See infra n. 38. 33. "Le coeur a ses raisons que la raison ne connait point." Pascal, Pensees 4:2.77. Pascal's emphasis on the melange of logic and emotion should not be dismissed as a lapse into Jansenist obscurantism. Contemporary students of cognitive processes increasingly acknowledge that decision-making has its volitional and emotive components. See, e.g., Goldman, Epistemology, supra n. 2.0, at 335; Weimar, Psychologische Strukturen, supra n. 2.1, at 80, IZ6-2.9. In philosophy, of course, the view that practical deliberation implicates the entire human personality—and therefore more than logical reasoning—can be traced back to classical Greece. See Martha Nussbaum, The Fragility of Goodness (Cambridge, Mass., 1986), 309.

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cannot be given, the tribunal ought at least to give the best account possible under the circumstances: the best should not be the enemy of the good. The problem with this second-best solution is that it encourages guesswork by reason-givers and it tempts them to seek refuge in conclusory statements without value in determining the decision's actual origin. In collective trial courts this solution has the further disadvantage—provided the solution is taken seriously—of bringing to light internal disagreements over evidentiary issues — even compromises about factual issues. Awareness of these internal smallgroup dynamics could detract from rather than contribute to the verdict's acceptance.34 With occasional amateur fact finders, lacking esprit de corps, these concerns with acceptance assume special urgency—especially where amateurs decide under the regime of unanimity so that messy compromises seem more likely. A more realistic way of understanding the giving of reasons shifts the emphasis from factors that caused the fact finders' decision to arguments that provide rational support for it and demonstrate its correctness. According to this alternative view, the primary duty of the tribunal is to show that its factual findings have a firm basis in evidence adduced and a solid support in canons of valid reasoning. Stated differently, to provide reasons for a verdict is to justify it in terms of conventions that govern the validity of judicial proof. On this view, the tribunal's task of conveying reasons is not nearly so Herculean as it is when reasons are interpreted as accounts of the decision's genesis. The articulation of a justificatory scheme is feasible even in collective tribunals: the reasons need not replicate mental operations performed by individual judges in arriving at the decision or judgment.35 Serious difficulties remain only in collective tribunals that are composed solely of occasional, amateur judges. Unfamiliar with applicable rationalizing conventions, these judges cannot elaborate a satisfactory explanation of their decision. In these circumstances, the insistence on reasons for the verdict could again turn counterproductive, weakening rather than strengthening its legitimacy. This is the ultimate 34. The practice of publishing dissenting and concurring judicial opinions in common law courts concerns mainly legal issues and involves the reasoning of trained professionals. 35. A discrepancy between reasons advanced to justify a decision and mental operations employed in reaching it is probably inevitable and should not be castigated as a symptom of corrosive hypocrisy. For a thoughtful discussion of this problem in the context of value choices, see Nussbaum, Fragility, supra n. 3 3, at 2.99; J. Ladd, "The Place of Reason in Judicial Decisions," 7 Nomos 126,134 (1964).

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ground, I think, for the often-encountered claim that it is in the nature of things for the lay jury to be unable to give reasoned opinions.36 In summary, the requirement that jurors make the exercise of their power transparent, although attractive in democratic theory, appears undesirable in practice. Although the enigmatic nature of verdicts can thus be defended, it still creates a problem for the administration of justice. This is because the verdict's opacity makes it extremely difficult for interested parties to assess and challenge its propriety. There is a palliative for this predicament, however: what remains open to challenge is the suitability of the database supplied to the inscrutable decision makers. If the rational support for the output of their decision-making process eludes supervision, the rational support for the input can be subject to attack. Does evidence submitted to the fact finders have a sufficient probative potential? Are evidentiary instructions adequate in terms of rational standards? These and similar questions relating to the input side of decision-making assume crucial importance in legal proceedings that culminate in cryptic verdicts. This is a fortiori the case in Anglo-American jurisdictions that rely on the litigants as a propulsive force. If the parties are denied an opportunity to challenge information to be supplied to the inscrutable decision maker, the incentive structure for procedural action can be severely impaired. For it is mainly through their influence on what evidentiary material the procedural Sphinx hears and sees that the parties feel they can affect the outcome of the case.37 In short, issues relating to the adequacy of the database become the main irritants for the growth of evidentiary pearls. With this I have looped the loop of my argument: the connection has been established between inarticulate jury verdicts and the tendency of AngloAmerican law to concentrate on problems connected with the submission of 36. On this oft-repeated claim, see Glanville Williams, The Proof of Guilt, 3d ed. (London, 1963), 309. In light of what has been said above, the growing frequency of American posttrial juror interviews in the media should be cause for some disquiet. Although the public may be more likely to accept a verdict that is explained to them, poorly explained verdicts or explanations motivated by desire for fame or fortune could well undermine public confidence in the jury system. For perceptive remarks on the problem of loquacious jurors, see Abraham Goldstein, "Jury Secrecy and the Media," 1993 U. 111. L. Rev. 2:95 (1993). ^ should be observed, however, that in some contexts, e.g., administrative boards and commissions consisting of lay persons only, fact finders are instructed by statute to state the grounds for their decisions on matters of local law. 37. Challenge to the input question is also important to the parties as a basis for a possible appeal. In the lingo of practitioners, the challenge "creates a record."

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evidence to the fact finder. But because this connection may appear too distant and speculative to the reader, I want to throw it into sharper relief by a brief juxtaposition with the situation in Continental administration of justice. There, unexplained judgments are anathema.38 The trial judge is obligated in a written opinion to make clear not only what facts the court has determined but also what items of evidence support each finding and what chains of inference lead from these items to specific factual determinations. As suggested before, however, this "atomistic" opinion cannot realistically be regarded as a faithful portrayal of mental processes employed by the court en route to its decision.39 To do so would be as naive as to imagine that the manner in which Anglo-American jurors arrive at the verdict closely traces all evidentiary instructions. Rather than attempting to map mental operations responsible for the judgment, the Continental judge seeks to demonstrate the support for the judgment in conventions governing adjudicative proof. The adequacy of this demonstration is then subject to supervision by appellate courts. The degree to which the rationale requirement affects the quality of Continental fact-finding can be overstated: Continental judges use fixed formulae just as readily as their common law brethren employ "boiler plate" language in 38. In countries belonging to the Council of Europe, the requirement of a reasoned opinion is now said to flow from the 1950 European Human Rights Convention. See, e.g., Jacques Velu and Rusen Ergec, La Convention europeenne des droits de I'homme (Brussels, 1990), 418. As a historical matter, however, this requirement is related to the traditionally strong appetite for appellate review. See Mirjan Damaska, The Faces of Justice and State Authority (New Haven, 1986), 48-50. But so long as the Roman-canon law of proof remained in force, that appetite could be satisfied without asking trial judges to provide reasons for their findings. Examining the voluminous dossier that the trial judge was required to compile, appellate judges could easily check whether the body of demanding corroboration rules was observed. Only after these rules were rejected did reasoned judgments become an indispensible instrument of the administration of justice. On the Continent, the concern with explaining judgments for purposes other than facilitating superior review are a relatively recent development. For a magisterial study of these purposes, see Michele Taruffo, La Motivazione della sentenza civile (Padua, 1975). For the perspective of a legal sociologist on this theme, see Niklas Luhmann, Legitimation durch Verfahren, ided. (Darmstadt, 1975), 2.14-15. 39. It bears repeating that although the typical Continental trial court is collegial, the court's opinion is written by the presiding judge alone. Cases in which he consults other members of the panel are rare. In civil cases, moreover, judges often delay writing the opinion for months, and are in the meantime involved in a large number of other cases.

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their instructions to the jury. Even so, reasoned opinions should not hastily be dismissed as pro forma only.40 Even skeptical commentators concede that the articulation of reasons makes the exercise of adjudicative power less impenetrable than a regime of totally unexplained decisions. Even if brimful of formulaic language, written reasons provide the dissatisfied party with a stationary target: the court's findings are identified and at least some grounds advanced for the belief that these findings are rationally defensible. The opportunity to attack these findings and arguments after the decision has come down reduces pro tanto the need to challenge the quality of information supplied to the court before the fact finders retire to deliberate. Inevitably, the issues preliminary to proof-taking become less prominent than in jury trials that culminate in unexplained general verdicts. To recapitulate: whereas Continental administration of justice relies on the justification of court decisions ex post facto, the employment of juries in the common law tradition prevented the growth of a comparable practice. This difference plays an important role in explaining why Anglo-American evidence law sets such great store by policing the receipt of evidence.41 For the law is animated not only by the desire to prevent factual error but also by the desire to shore up ex ante the legitimacy of inscrutable jury verdicts. This desire may indeed be the single most neglected contribution of the jury to the rationale for evidentiary arrangements peculiar to the Anglo-American procedural tradition.

The Divided Trial Court Up to this point I have dwelt on features of Anglo-American evidence that can be justified as needed to correct the cognitive shortcomings of lay adjudicators, to assist them in reaching a unanimous decision, or to compensate for the cryptic character of their verdict. Now I want to take up evidentiary arrangements that can be explained not so much by the lay character of the fact-finding body as by the division of the trial court into two separate parts. This internal fission of the tribunal creates a space for the growth of 40. Not every outcome can be justified according to the prevailing canon; comparison of the grounds advanced by the trial judge against the record enhances the capacity of appellate courts to evaluate the adequacy of those grounds. 41. Other grounds for this comparatively striking emphasis will be unveiled later on. One will be taken up in tracing the effects of procedural concentration and yet another in following the manifold implications of the adversary system.

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evidentiary doctrines and practices that are not necessarily implied by the participation of lay decision makers in the administration of justice. Some of these doctrines and practices are so dependent on the mechanics of internal court bifurcation, so inextricable from it, that they simply cannot survive in other institutional environments. Other arrangements are more flexible and resilient. Although they flourish and fulfill their potential only in divided courts, they can survive in unitary tribunals as well. But their root-strength ebbs, and they are devoid of much practical significance. The study of these more resilient arrangements is of greatest interest for my purposes. Not only does it promise an insight into the proper reach of common law evidence, but it is also useful in identifying those salient features of the Anglo-American fact-finding method that do not stem from the content of evidentiary rules themselves. In what follows, I shall have these arrangements foremost in my mind.

Support for Exclusionary Rules An important source of the common law's penchant for exclusionary rules was examined in the previous section. There I also hinted at the existence of other sources of this inclination. But whatever constellation of factors makes exclusionary rules important to the Anglo-American fact-finding style, it is the environment of the divided court that facilitates their effective enforcement. To the extent that evidence is excluded before the trial and the triers of fact remain ignorant of it, no significant difference exists between exclusionary schemes in unitary and bifurcated curial contexts: the impact of exclusion remains the same in both settings. As is well known, however, the inadmissible nature of an item of information, or of its carrier, cannot always be ascertained at the early stages of the proceeding. And when the need for sifting evidentiary material arises only at the trial, the contrast between bifurcated and unitary courts springs clearly before the eye. In the former context, the judge can keep inadmissible information from the fact finder by a preliminary ruling, and — provided that the two parts of the tribunal are acoustically separated — inadmissible but otherwise credible evidence leaves no imprint on the fact finder's mind. In unitary courts, by contrast, where the same individuals decide the admissibility of evidence and the weight it deserves, the taint from the forbidden but persuasive information cannot be avoided: it always affects the decision makers' thinking. This applies with special force to rules that function resolutely in the com-

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mon law idiom — namely, to intrinsic exclusionary rules. As an example, consider the enforcement in unitary courts of the rule rejecting evidence whose probative potential is outweighed by its potential for an unfairly prejudicial effect. Having carefully balanced the relevance of an item of evidence against its undesirable side effect, the judges of this court must often say to themselves: "We must exclude this item because its prejudicial impact on us is too strong." But how can they effectively forget what they have learned and bleach out the prejudicial impact? As pointed out earlier, it does not seem likely that the human mind is capable of such tightly compartmentalized processing of information. A possible objection must be anticipated at this point. The outlined contrast between bifurcated and unitary courts, a reader might argue, looms large in theory but almost vanishes in practice. Despite the separation of the finders of fact from the judge of law, Anglo-American jurors are also exposed—for a variety of reasons—to inadmissible but persuasive information and then asked to ignore it. But although the point must be conceded, a significant difference between the two forensic environments still remains. In the first place, the bifurcated court makes it possible to keep inadmissible evidence away from the decision maker in many situations where the unitary court milieu does not permit this solution. And even when the insulation of the fact finder from forbidden information fails in common law courts, the judicial instruction that an item of information be ignored retains a significant residual effect. As indicated earlier in this chapter, the judge's charge places a constraint on the debate in the jury room: inadmissible evidence is "excluded" in the sense of becoming unusable as a legitimate weapon of argumentation. And in a setting in which a body of occasional, lay judges struggles to arrive at a verdict, the foreclosure of specific lines of argumentation gains mightily in importance and cannot be dismissed as inconsequential. By way of contrast, consider the enforcement of exclusionary rules in Continental unitary courts. Even if lay persons sit on these courts—and this happens more frequently in criminal than in civil cases—there is very little division of labor between amateur and professional decision makers. The former are not separated from the latter, and admissibility issues are decided either jointly or—when in the hands of the presiding judge alone—within the hearing of lay judges. Under these circumstances, the demand that probative information be excluded easily produces an excursion into unreality. Hearsay is a good example. Fully to appreciate the difficulty of keeping this type of evidence from the Continental fact finder, it is important to bear in

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mind not only the unitary court environment but also traditional Continental techniques of taking testimony. As we shall see later in more detail, Continental witnesses are not guided in their narratives by narrow direct questions that can be objected to before they are answered. And because these narratives often contain secondhand information, Continental fact finders are continuously awash in hearsay. Due to the joint effect of unitary court ecology and traditional interrogation techniques, the refusal of Continental systems to adopt the prima facie ban on hearsay can hence be justified by the ban's impracticability alone: despite the shield of an exclusionary rule, vast amounts of inadmissible derivative information would still continue to reach the triers of fact, remain lodged in their minds, and influence the outcome.42 The unitary structure of Continental courts also bedevils the employment of extrinsic exclusionary rules —such as those that reject information falling under a testimonial privilege or those rejecting improperly obtained confessions. In order to be effective, the elimination of this kind of evidence must occur prior to the trial and leave no traces in the documents available to the trier of fact. Failing these two preconditions, an effective exclusionary policy would require trial judges contaminated by forbidden information to discharge themselves from further participation in the case. But because this solution is administratively inconvenient and prohibitively costly, Continental law is left with the option of issuing a fiat that inadmissible information be excluded from the decisional calculus —even though an aura of unreality surrounds this demand in the unitary institutional context.43 The occasional 42. As pointed out in the previous chapter, Italy has recently imposed a ban on hearsay in criminal trials. A variant of party-driven witness examination was also adopted. See William Pizzi and Luca Marafioti, "The New Italian Code of Criminal Procedure," 17 Yale J. Intl. L. i (1992.). But this apostasy from Continental tradition did not go so far as to embrace abolition of the trial court's unitary character. This fact alone suffices to explain why in Italian practice witnesses are seldom interrupted by hearsay objections: provided that the individual called to the stand is a firsthand witness, his hearsay sideremarks seem to reach the court without any difficulty. For illustrations, see the report from the trial of the former prime minister, Giulio Andreotti. New York Times, Jan. 10, 1996, at Ay. It seems that the Italians intended a ban on hearsay witnesses more than a prohibition of hearsay evidence per se. I should hasten to add, however, that the Italian hearsay prohibition is not softened by far-reaching statutory exceptions. It is thus risky to equate the contours of the Italian hearsay doctrine with its Anglo-American analogue. 43. How difficult it is for unitary court judges to ignore probative information is frankly discussed by Giinther Artzt, "Zum Verhaltnis vom Strengbeweis und freier

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identity in the wording of Continental and Anglo-American exclusionary rules can thus be deceptive. It can become a normative trompe 1'oeil, blinding the observer to differences in the actual impact of exclusionary policies. The potential for the effective enforcement of these policies is a distinctive ingredient of the legal process before the common law court composed of judge and jury. The institutional logic of unitary courts also provides the best explanation for the weakening of the Anglo-American exclusionary regime in juryless trials.44 Although the justifications for this relaxation vary, the prevailing argument is —at least in regard to intrinsic exclusionary rules— that seasoned professionals need not shackle themselves to restrictive norms evolved to protect amateurs from certain classes of potentially hazardous information: with lay judges gone—jurati absconditi —admissibility issues dwindle in importance as a safeguard of decisional correctness. An explanation more plausible to my mind springs from the fact that the juryless court is a unitary tribunal: the admissibility of evidence is decided here by the ultimate fact finder, who inevitably comes into contact with tainted information. And when this information is persuasive, the professional judge has as much trouble ignoring the acquired knowledge as do amateur adjudicators. In the final analysis, then, it is the problem of unbiting the apple of knowledge that best accounts for the relaxation of exclusionary rules in Anglo-American bench trials. Ironically, the actual effect of exclusionary rules in these trials may be even more ethereal than in Continental trial courts. As we have seen, the typical Continental bench is collegial, with its presiding judge obliged to explain factual findings in a reasoned opinion. In this milieu, the exclusionary rules retain some residual effect even though technically inadmissible information remains lodged in the fact finder's mind: the tainted information can be used neither as an argument in the course of deliberations nor by the presiding Beweiswiirdigung," in Einheit und Vielfalt des Strafrechts, ed. Jiirgen Baumann and Klaus Tiedemann (Tubingen, 1974), 223, 231. Hence it is far from strange that Continental courts are reluctant to insist that breach of exclusionary rules automatically entails a ban on the use of information obtained by the breach. See supra Ch. i, n. 36. 44. For a review of techniques crafted to relax the force of admissibility rules in bench trials, see Wigmore, Evidence in Trials at Common Law, Tillers rev. (Boston, 1983), 4d.i at 213-30; Leo Levin and Harold Cohen, "The Exclusionary Rules in Nonjury Criminal Cases," 119 U. Pa. L. Rev. 905,906-10 (1971).

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judge in justifying the judgment. In Anglo-American bench trials, of course, even these residual effects are unavailable: the judge is the sole decision maker, and he need not advance elaborate written reasons for his factual findings. The bifurcated court's significance for the application of exclusionary rules emerges also in the light of historical development. Until late in the eighteenth century, the institutional environment of common law courts was not radically different from that of a unitary tribunal: the trial judge dominated the fact-finding process to a far greater extent than is now thought acceptable. He was in a position to ascertain and strongly to influence the jury's reaction to evidence by informally talking to the jurors and more freely communicating his views to them than present court rules permit. And if he was dissatisfied with the verdict they proffered, he could in his discretion order a new trial or even require the jury to go back and deliberate again.45 Because the respective functions of judge and jury were thus blurred, the imperfect bifurcation of the tribunal prevented strong enforcement of exclusionary rules. Although it was acknowledged that admissibility issues are best decided prior to the presentation of evidence to the jury, these issues were in fact routinely considered at the close of all evidence.46 The criticism was brushed aside that, on this practice, objections to probative but inadmissible evidence come only after the jury has already been contaminated by the forbidden material.47 Assume (so went the winning argument) that probative evidence was indeed excluded by a preliminary ruling outside the jury's hearing. Even in this hypothesis, the judge — the person controlling the verdict—would still be affected by the "excluded" 45. For criminal cases, see John Langbein, "The Criminal Trial Before the Lawyers," 45 U. Chi. L. Rev. 263,284-300 (1978). On parallel developments in civil trials, see John M. Mitnick, "From Neighbor-Witness to Judge of Proofs," 32 Am. J. L. Hist. 201, 289, 291 (1988). 46. See, e.g., Jeffrey Gilbert, The Law of Evidence (Dublin, 1795), vol. i, bk. 2, ch. 2, at 282. Interestingly enough, Roman-canon authorities also held that "opposition" to evidence should be a matter preceding its presentation. Prospero Farinacci, Tractatus integer de testibus (Osnabriick, Saxony, 1678), tit. 7, qu. 65-68. But because both the "opposition" to evidence and its weight were decided by the same person, the Roman-canon court of first instance was regularly exposed to inadmissible information — despite numerous provisions in the form of admissibility rules. 47. Writing in the early decades of the eighteenth century, Gilbert defended the practice of postponing objections to admissibility in both civil and criminal cases. See Gilbert, Law of Evidence, supra n. 46, at 282, and vol. 2, bk. 4, ch. 14, at 883.

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information. And whenever this information appeared to him crucial for the correct outcome, he could impose his opinion on the jury. The exclusion of probative evidence thus appeared as a mere ritual. Only with the strengthening of the trial court's division of labor did the opinion gather force that the admissibility of evidence should be decided by the judge in a preliminary fashion — outside of the jury's presence if probative information was involved. Criminal trials ushered in this change, because jurors came to be seen there as representatives of civil society charged with resolving disputes between the government and the accused. Under this new conception of the jury's role, a conception redolent with laissez-faire philosophy, members of civil society had to be put in a position independently to decide the facts of the case. Pervasive judicial control over verdicts was doomed, and judges gradually lost the authority to reject proffered verdicts and freely to order new trials. Of course, in the new institutional context, the old argument that advance judicial rulings have no impact on the outcome of lawsuits lost its force. In this way, then, the increased bifurcation of the trial court brought about an institutional environment favoring the effective enforcement of rules keeping probative information from the trier of fact. This bifurcation still provides the institutional black velvet on which the jewels of the common law's exclusionary doctrine can display their full potential and allure. INSTRUCTIONS REVISITED

It is customary to imagine that evidentiary instructions intimately track the fate of lay adjudication. Are they not justified by the need of untrained adjudicators for guidance and tutoring as they go about the business of deciding cases? Because the connection is so straightforward, one easily overlooks the fact that the participation of lay people in legal proceedings does not require instructions of the common law genre—that is, formal charges to the jury given in open court. In mixed collegia! courts of Continental Europe, for example, where judges sit and decide jointly with lay assessors, instructions of this type are unknown. Nor are they necessary: knowledge flows from professional to amateur judges through informal exchanges in the course of deliberations. The delivery of formal instructions of the common law variety was an important part of Continental trials only in the limited sphere of the transplanted criminal jury—so long as the latter retained the character of an independent body of amateur judges. But as this form of lay adjudication fell into

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bad grace, and jurors were required to deliberate jointly with professional judges, formal instructions were blown away by the winds of reform. The ease with which this occurred suggests that Anglo-American evidentiary instructions cannot be justified by lay participation as such. The full account of the matter calls for reference to the internal division of the tribunal into two parts — each part deciding separately and in isolation from the other. But the internal fission of the tribunal explains more than the need for formal instructions in advance of jury deliberation. Under the loupe of comparative analysis it soon becomes clear that this fission also explains several striking features of common law evidence that have remained unidentified so far. This is most clearly the case with much of the law of presumptions, as well as with several doctrines governing the burden and the standards of proof. In all Anglo-American jurisdictions, these subjects are deeply entangled in normative webs. But where common law goes into Lilliputian detail, Continental law employs mostly broad regulative principles —especially in the sphere of criminal justice. To a degree, this contrast can be attributed to the already mentioned disparities in ordering the law that prevail in the two branches of the Western legal tradition. And, as I shall argue in Chapter 4, the contrast is also related to different patterns of allocating control over procedural action. A factor of immediate interest, however, is the unequal difficulty faced by unitary and bifurcated courts in attuning amateur adjudicators to prevailing fact-finding methods and conventions. In Continental mixed tribunals, this adaptation is relatively easy. Since amateurs and professionals decide as a group, the former can be tutored by the latter as they jointly tackle specific tasks. Amateurs learn by doing, and professional advice can be calibrated to constellations of fact even when these are as unique as snow crystals. Context-related, situational standards need not harden into rules: rather, they can retain a vague form that is filled with specific meaning only as concrete issues arise in the course of deliberations. Anglo-American trial courts, on the other hand, face much more formidable challenges in organizing the transmission of information from professionals to amateurs. Because jurors decide alone, their initiation into desirable ways of decision-making must occur before they retire and begin to deliberate. Norms applicable to decision-making cannot be modulated to only partially foreseeable issues as deliberations progress. And because judges are no longer permitted informally to communicate with the jury or empowered to make jurors reconsider their verdict, the need for formal instructions becomes plain. No wonder judges wrestle to give operational meaning even to those decisional

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conventions that are so deeply bracketed in changing contexts that they resist concrete articulation. Valiant judicial attempts to spell out the operational meaning of reasonable doubt for criminal cases is probably the best-known example of such —largely Sisyphian —efforts.48 In short, problems pertaining to fact-finding that are expressly regulated and highly visible in the fishbowl world of jury trials remain veiled from view in Continental procedure, shrouded by the secrecy of the deliberation room.49 The close association of decisional standards and related provisions with jury instructions indicates that this sui generis part of common law evidence is deprived of most of its meaning in bench trials or other native AngloAmerican versions of the unitary court. Where the judge decides alone, the rules applicable to the method of decision-making are not announced by him before he retires to the chambers to decide the case. And unless he articulates these rules in justifying the decision, their propriety may escape challenge and appellate review altogether. When detached from their moorings in the bifurcated court, the elaborate proof standards and related aspects of common law evidence thus acquire a platonic quality—a property even more ethereal than that exhibited by intrinsic admissibility rules when invoked in juryless trials. IMPACT ON BASIC EVIDENTIARY CONCEPTS

How far the ripple effects of court bifurcation can reach is clearly visible in the concept of relevance, seemingly ecumenical and independent of institutional context. This concept is one of the building blocks of Anglo-American 48. See Patricia Wald, "Guilty Beyond a Reasonable Doubt," 1993 U. of Chi. Legal Forum 87,111-12.. Whether the finely shaded variations of the test make any difference in jury deliberations is problematic: experiments with mock juries suggest that they spend very little time discussing reasonable doubt. See Hastie et al., Inside the Jury, supra n. 7, at 170, passim. Of course, this does not prevent judges from carefully scrutinizing the precise wording of proposed reasonable doubt tests: the language clearly matters for the ex ante legitimation of verdicts discussed earlier. Observe also that a verdict rendered by a jury that applied "a less demanding standard than reasonable doubt can be a nullity, not amenable to harmless error review." Sullivan v. Louisiana, 508 U.S. 2,75 (1993). It should be noted, however, that not all common law countries require that the reasonable doubt formula be further articulated. See Barbara Shapiro, Beyond Reasonable Doubt and Probable Cause (Berkeley, 1991), 2.74-75. 49. For a historical perspective on the connection between the burgeoning of formal instructions and increased rigidity in the relationship between judge and jury, see John Langbein, "Historical Foundations of the Law of Evidence: A View from the Ryder Sources," 96 Colum. L. Rev., 1168,1196 (1996).

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evidentiary doctrine: it is at the heart of the evidentiary lexicon, playing an important role in practical legal discourse. In its most frequent application, relevance relates to the probative potential of an item of information to support or negate the existence of a fact of consequence (factum probandum). The idea the concept conveys is that an item is connected by logical or experiential links with the proposition to be proven. But the concept's task is not to suggest the strength of this connection: that is a question pertaining to the weight of evidence. The relevance of evidence and its weight are two distinct, albeit closely related, concepts: the former depends solely on the cognitive potential of information, whereas the latter also depends on the credibility of the information's transmitter.50 If we now survey legal systems outside the common law world, we find that relevance so understood plays hardly any role in legal discourse. In the Continental legal tradition, for example, noted for its penchant for conceptual digestion of the law, the probative value of information is seldom discussed apart from the credibility of its carrier. Technical concepts dealing with the probative effects of evidence are more encompassing than Anglo-American relevance.51 And when Continental lawyers consider the probative potential of an item of information apart from the reliability of its transmitter, it is mainly to ascertain whether this item has a bearing on the facts in issue —that is, whether the item is "material."52 Why is a conceptual tool so central in Anglo-American procedure without importance in other systems? The answer emerges from the contrast between the bifurcated common law 50. Relevance is also conceptually distinct from the concept of "materiality," which addresses the problem of whether an item of information is capable of establishing a fact that makes a difference in terms of the case's legal theory. For the American understanding of this distinction, see Richard Lempert and Stephen Saltzburg, A Modern Approach to Evidence, id ed. (St. Paul, Minn., 1982.), 148-51. For English law, see Adrian Zuckerman, The Principles of Criminal Evidence (Oxford, 1989), 47-53. 51. For an analysis of these concepts in the widely influential German theory, see Leo Rosenberg and Karl-Heinz Schwab, Zivilprozessrecht, i3th ed.(Munich, 1981), 658. A Dutch comparativist has recently noted the disparities between Continental and AngloAmerican basic evidentiary concepts. J. F. Nijboer, "Common Law Tradition in Evidence Scholarship Observed from a Continental Perspective," 41 Am. J. Comp. L. 299, 304 (i993)52,. See, e.g., Max Alsberg et al., Der Beweisantrag im Strafprozess, 5th ed. (Cologne, 1983), 580. Admittedly, the distinction between materiality and relevance is made sporadically by Continental jurists. Even then, the distinction is equated with the opposition of direct and circumstantial evidence. See Taruffo, Prova, supra n. 2,2,, at 338,42.9.

56

The Archetypal Trial Court

court and unitary courts that prevail elsewhere. In the former, the judge stands at the gate of the fact-finding citadel, charged with determining whether information to be passed on to the ultimate fact finder possesses a sufficient cognitive potential to be admissible. But the trustworthiness of the information's carrier is not his business: that lies in the exclusive province of the revered jury.53 In a posture reminiscent of the Lady in Lorenzo Lotto's Annunciation, then, the judge must turn his back to the messenger and concentrate solely on the import of the message. Unitary court judges, by contrast, are not obliged to concentrate on the probative value of information apart from the credibility of its transmitter. And because the probative value of the message and the trustworthiness of the messenger are jointly considered, the need to express these two aspects of evidence processing by two separate conceptual categories appears as a barren theoretical impulse. In the classical Anglo-American trial court, the fact that the probative potential of information and the credibility of its transmitter are determined by different individuals is not without broader influence on evidentiary thought. Lawyers are in the habit of fastening their attention on judicial rulings that concern the probative value of information, and this cynosure underscores the importance of inferential chains leading from isolated bits of information to facts in issue. The habit grooves the legal sensibility into what has been called the "atomistic" approach to the processing of evidence. This orientation is reinforced by the importance attributed by common law to structuring the argumentation about evidence in the jury room. As a result, atomistic analysis of evidentiary questions assumes great prominence, tending to overshadow psychological aspects of the fact-finding decision.54 53. For example, it is inappropriate for the judge to exclude a witness's testimony as "irrelevant" on the ground that he finds the witness unworthy of trust. Of course, in the practical application of the law, the boundary between the relevance of evidence and its weight can be permeable. Thus, in balancing the probative potential of evidence against its prejudicial effect, at least some judges cannot refrain from making credibility judgments. For examples of this practice in American courts, see, e.g., United States v. Thomson, 615 F.2.d 32.9, 333 58-73» I2-5» «6» i*9~34> 142Proof: belated submission of, 65-68; documentary, 70; exclusion of, 66nn Proof, freedom of, 17, 19, 2.8; Continental, 2,0-2.5 Proof, standards of: in Anglo-American procedure, 36, 38, 39, 53, 54, 83, 92; in Continental procedure, 39, 53, 83, 114,12.1 Proof-taking, i, 2, 5, 41^0, 46, 62, 64, 68, 69, 72, 86, 12on9o; AngloAmerican, 82, 92, 93, 94, 134; Continental, 66, 71, 82-83, 91? 93 Propensity evidence, 31-32 Proprietary concept of evidence, 76 Public interest litigation, 100, io6n64, mn7i, 112, 1 3 8. See also Class actions Pugliese, Giovanni, 27^

Park, Roger, 3 in 10 Parties: control over procedural action, 66, 74~75> 7^-88, 109, 134-4*; «>le of, 4, 5, 136. See also Fact-finding: party-controlled Pascal, Blaise, 42. Penn, William, 66ni2 Pennington, Nancy, 3on7, 35n2i Penrod, Steven, 3on7 Perillo, Joseph, io8n67 Pertile, Antonio, 29n6 Pieper, Helmut, 33ni6 Pizzi, William, 491142.

Rakos, Richard, 3 in 10 Rational factual inquiry, 44; and adversary fact-finding, 94-103; judicial and extra judicial, 89-94; objective of, 110-24; and partisan interest, 88-103 Reasons for decisions, 41-43, 451138, 46; written, 46, 51 Relevance, 54-55, 83, 87; vs. materiality, 55nn50,52 Resnik, Judith, 140112,8, 1481111 Roman-canon law, 19-20, 22; and admissibility, 51^6; in French revolution, 20, 21, 28; and fresh testimony,

Merle, Roger, 40112.9, 71112.6 Merryman, John, 1 1 iny i Miene, Peter, 3inio Miller, D. Carey, 8ni, iO7n65 Miller, David, 961143 Mitnick, John M., 5 in4 5 Mittermeyer, Carl, 73^2,5 Mittermeyer, J., 22n3 3 Monahan, John, I46n8 Morgan, Edmund, 2.n3, 34ni7 Mueller, Christopher, 33ni5, 79nn, ioon52 Muller-Dietz, Heinz, 95^1 Nagel, Heinrich, 8ni, 4on29 Nance, Dale, 2113, 3in9, 85^2., 99n5O Ne crimina maneat impunita, 119 Netherlands, The, 2in32 Newark, Mike, 77n7 Nijboer,J.E, 55n5i Nobili, Massimo, 2in32 Nordenberg, Mark, i44nz Norr, Knut, io6n64, nm72, ii3n76, H9n87 Nussbaum, Martha, 42^33, 43n35

Index 70, 73> an^ hearsay, 15112.2,; influence of, 69112.1, io6n64, 112., 113^6; and judges, 40; and proof, 7, 10, 40^9, 45n38, H9n89; and rights of defendants, I3ni7 Roman (classical) law, 2.7, 971144 Rome: Church of, 119, 151 Rosenberg, Leo, I3ni5, 551151, 8ini6, io6n64 Rousseau, Jean-Jacques, 37 Roxin, Glaus, 23^5, 27n2 Russia, 2.8n5, 39^7 Saks, Michael, 34ni9 Saltzburg, Stephen, 32ni4, 55^0, iO4n6i Schlesinger, Rudolf, 8n2, 9n4, unio, 64n8, 67ni5, 7inz4, 78n8, n8n85, I5oni5 Schulhofer, Stephen, I27n7, 135ni8 Schunemann, Bernd, 10^58 Schwab, Karl-Heinz, I3ni5, 551151, 8mi6, io6n64 Schwartzer, William, 1 2 3 n9 Scientific evidence, 33. See also Experts Searle, John, 94n4i Second-hand evidence. See Hearsay Sessar,K., 102^158 Shapiro, Barbara, 19^9, 54n48 Shapiro, David, 1 3 3 n 1 Sheppard, Blair, 98^7 Si iudicas, cognosce, 135 Simpson, Nicole, 3on8 Simpson, O. J., 3on8, 66nn Smith, Thomas, 68ni9 Stahlmann, Gunter, 33m6 Stair, James Balrymple, 1 3 zni 5 Starkie, Thomas, 2n2, 4in3 1 Steiner, George, 941141, iom56 Stipulations, 87, 104, 106, 122, 139 Suggestive questions. See Leading questions Summers, Rorbert, ion 6

159

Tapper, Colin, 2.n3, I5n2i, 77n5 Taruffo, Michele, I5nn2i,22, 36n22, 45n38, 55n52., 6408, 8ini6 Testimonial privileges, I2.-I3, 49, 78n8, 87,116 Thagart, Paul, I33ni6 Thaman, Stephen, 2,8n5, 39^7 Thayer, James B., 2., unii Thibaut, John, io2.n58, uon69 Thompson, Robert, 77n6 Tiedemann, Klaus, 2.2^34, 5on43 Tillers, Peter, i2.ni 3, 36n2.2,, 5on44, 62.n6, 79nio Trial-centeredness: demise of, 12.9-34 Trial court: organization of, 4, 2,6-57, . i*5 Trial on the day. See Day-in-court trials Trials: Anglo-American, 118; Continental vs. common law, 59-60, 118 Truth, 1 01, 107; commitment to pursuit of, 76, mn69, 12.0-2.4; Continental judges and, 91; correspondence theory of, 94, 95; discovery in interest of, 67, 87, 100, 102.-3; and protection of rights, 115 Twining, William, 35nn2.o,2,i, 36n2.2., 57n54, 88n2,9, 94^1, i^nii, I49ni3 United States, 132., 134-35, 136-37, 140, i47nio; Continental plaintiffs in, 117-18; defense counsel in, 123; docket pressures in, 141^0; right to jury trial in, I2.6n4, 127 Urbom, Warren K., 34ni7 Van Caenagem, R. C., I5ini6 Van Kessel, Gordon, 12.31196 Van Koppen, P. J., 3 5n2i Velu, Jacques, 4 5n3 8 Verdicts, 69; compensating for cryptic, 41-52; and fact-finding, 41, 51; inscrutability in, 44, 46, 65; jury, 38,

160

Index

Verdicts (continued) 39112.7, 40; legitimacy deficit of unexplained, 41, 46; reasonable doubt in, 541148; unexplained, 41, 42-43, 45, 46, 60, 128. See also Reasons for decisions Vico, Giambattista, 2.on3i, 6in4 Vidmar, Neil, 98^7 Vitu, Andre, 40112.9, 71112.6 Voltaire, 2.on3 1 Von Mehren, Arthur, 6in4, 68ni8 Wagenaar, W. A., 3 $nzi Wahrmund, Ludwig, 1121173 Wald, Patricia, 54^8 Walker, Laurens, 102^58, non69, 14608 Walter, Gerhard, 2.m32,, 4on2,9 War Crimes Tribunal, mi Weigend, Thomas, 9in33, io6n62., io6nn62,,63, H3n75 Weight, rules of, 18, 2,on3i, 2,1, 35, 55 Weimar, Robert, 3sn2i, 421133

White, Justice, 8oni3, 12.3^7 Wiggins, Elisabeth, 145 n 5 Wigmore, John Henry, 2.n2,, i2.ni 3, I4n2.o, 17112.7, 19^9, 35n2.o, son44, 62,n6, 7^14, 79 Williams, Glanville, 44n3 6 Wissler, Roselle, 34019 Witnesses, 63, 65, 149; challenges to, 80-81; confrontation of, 65, 81, 91; Continental, 49, 100; deposition of, 130; expert, 78, 85, 87, 98, 991151, 143, 145113, 146; eye, 19, 81; hearsay, 81,85; impeachment of, 23 n3 5, 79; interrogation of, 72., 81, 93, 96-98, 99, 106, 107, 108; and party control, 7677; preparation of, 77-78, 98; selection of, 98; trustworthiness of, 2.0, 5^1153 Wrightsman, Lawrence, 34ni9, 97^5 Zander, Michael, iz7n6 Zeisel, Hans, 32^13 Zuckerman, Adrian, 55^0