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Evidence Law Adrift

Evidence Law Adrift

Copyright Date: 1997
Published by: Yale University Press
Pages: 176
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  • Book Info
    Evidence Law Adrift
    Book Description:

    In this important book, a distinguished legal scholar examines how the legal culture and institutions in Anglo-American countries affect the way in which evidence is gathered, sifted, and presented to the courts. Mirjan Damaska focuses on the significance of the divided tribunal (between judge and jury), the concentrated character of trials ("day-in-court" justice), and the prominent role of the parties in adjudication (the adversary system). Throughout he contrasts the Anglo-American system with Continental, or civil- law justice, where lay fact finders sit with professional judges in unified tribunals, proceedings are episodic rather than concentrated, and the parties have fewer responsibilities than in the common-law tradition.Damaska describes the impact of the traditional institutional environment on the gathering and handling of evidence in common- law jurisdictions and then explores recent transformations of this environment: trial by jury has dramatically declined, pretrial proceedings have greatly proliferated, the adversary system shows signs of weakening in some types of cases. As a result, many rules and practices supporting the treatment of evidentiary material are in danger of becoming extinct. In addition, says Damaska, the increasing use of scientific methods of inquiry could place further strains on the use of traditional common-law evidence. In the future we should expect greater variety in decisionmaking activity, with factual inquiries tailored to the specific type of proceeding and common-law evidence restricted to a narrow sphere

    eISBN: 978-0-300-14647-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-x)
  4. Introduction
    (pp. 1-6)

    It has become something of a commonplace to observe that the Anglo-American 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 théâtre, has no exact parallel in legal proceedings outside the orbit of the common law. Several other features...

  5. 1 Character of Common Law Evidence: A View from the Outside
    (pp. 7-25)

    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...

  6. 2 The Archetypal Trial Court
    (pp. 26-57)

    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...

  7. 3 Concentrated Proceedings
    (pp. 58-73)

    Having shown how the shape of the paradigmatic trial court supports evidentiary arrangements distinctive to Anglo-American procedure, my aim in this chapter is to demonstrate the extent to which these arrangements can be explicated as suited to a historic mode of proceedings that centers mainly on continuous trials. But before setting out to explore the connections between trial focus and evidence, a few prefatory remarks are in order to assuage skepticism about the propriety of this undertaking.

    First, a few words on the importance of trial concentration for the understanding of Anglo-American evidentiary arrangements. At the beginning, as the modern...

  8. 4 The Adversary System
    (pp. 74-124)

    The previous chapters examined ways in which first, the shape of the trial court and second, the temporal compression of proceedings support the distinctive features of common law evidence. This chapter deals with their third and final prop—the adversary system itself. ByadversaryI mean a system of adjudication in which procedural action is controlled by the parties and the adjudicator remains essentially passive.¹ In the fact-finding domain, this implies that the litigants and their counsel decide what facts shall be subject to proof. It further implies that litigants and their counsel are entrusted with seeking evidentiary material, preparing...

  9. 5 Institutional Transformations
    (pp. 125-142)

    The preceding chapters were concerned with relating common law evidence to three historically interconnected aspects of the institutional environment: the organization of the trial court; the temporal concentration of proceedings; and the enhanced impact of the parties upon procedural action. Each of the three elements has supported evidentiary doctrines and practices in the form they have assumed since the eighteenth century. Taken together, they provide a firm basis for arguments in favor of the central characteristics of the classical Anglo-American fact-finding style. They are the pillars carrying common law evidence.

    Since I have dealt with each separate aspect by an...

  10. 6 Epilogue: The Future
    (pp. 143-152)

    To consider the future, in the closing years of the twentieth century, is largely to talk about the creeping scientization of factual inquiry. In the wake of stupendous scientific and technological advances made over the past fifty years, new methods of establishing facts have begun to compete with traditional fact-finding ways in a variety of social spheres—including the administration of justice. An ever-increasing number of facts of importance for the legal process can now be established only by sophisticated technical instruments. And as the gulf widens between reality as perceived by our natural sensory apparatus and reality as revealed...

  11. Index
    (pp. 153-160)