Against ‘Free Proof’

Israel Law Review

Volumn 31, Issue 1-3, 1997, Pages 573-589

  Stein, Alex ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

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EID: 85011202215     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700015405     Document Type: Article

References (77)

1. J. Heydon, Evidence: Cases and Materials (2nd ed., 1984) 3.
2. W.L. Twining, Rethinking Evidence (1990) 197.
3. See REL, 322–342.
4. See J. Bentham, Rationale of Judicial Evidence, vol. V, (1827) 477–494
5. C.F. Chamberlyne, “The Modern Law of Evidence and Its Purpose”, (1908) 42 Am. L.R. 757
6. Learned Hand, “The Deficiencies of Trials to Reach the Heart of the Matter”, in Lectures On Legal Topics, 1921–1922 (1926) 89, at 96–104
7. J. H. Wigmore, A Treatise on The Anglo-American System of Evidence in Trials at Common Law (3rd ed., 1940) §8c (endorsing many of Bentham's claims, but not supporting a wholesale abolition of evidentiary rules)
8. K.C. Davis, “An Approach to Rules of Evidence for Non-Jury Cases”, (1964) 50 A.B.A.J. 723, at 726
9. K.C. Davis, Administrative Law Treatise (1980) § 16:2.
10. For discussions of this idea see W.L. Twining, Theories of Evidence: Bentham and Wigmore (1985)
11. A.D.E. Lewis, “The Background to Bentham on Evidence”, (1990) 2 Utilitas 195.
12. Procedural justice is not invariably treated as instrumentalist. To certain procedural arrangements, such as the right to be heard and present evidence, people may be entitled deontologically. This may explain, for example, the accused's right to cross-examination, when the admissibility of a testimony incriminating him is conditioned upon providing him an adequate opportunity to exercise this right. Evidence excluded under this condition would be excluded not because it is devoid of probativity; it would be excluded because to force a person into a criminal trial without providing him a fair opportunity to confront adverse witnesses is devoid of political warrant. Findings that could be made on the basis of unexamined testimonial accounts could be accurate, but their accuracy is not the issue. The issue is whether the community where criminal trials are allowed to be conducted without full participation of the accused is politically attractive. See R. Summers, “Evaluating and Improving Legal Process – A Plea for ‘Process Values’”, (1974) 60 Cornell L.R. 1
13. M.D. Bayles, “Principles for Legal Procedure”, (1986) 5 Law & Phil. 33.
14. As pointed out by Lawrence Tribe: “The right to be heard from, and the right to be told why, are analytically distinct from the right to secure a different outcome; these rights to interchange express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one. … For when the government acts in a way that singles out identifiable individuals – in a way that is likely to be premised on suppositions about specific persons – it activates the special concern about being personally talked to about the decision rather than simply being dealt with”. L. Tribe, American Constitutional Law (1978) 503–504. There is, however, a good reason to be skeptical about freestanding procedural rights. Let it be assumed, counterfactually, that there is no epistemic fallibility problem and that we live in a world of infallible judges. Would there be room in this world for procedural rights that are valuable intrinsically rather than instrumentally? I believe this question should be answered in the negative. If so, the right to be heard seems to be related more closely to our epistemic fallibility than it is related to our moral virtuousness.
15. Procedural rights may also be taken (rather exotically) as a source of some indispensable psychological satisfactions. See, e.g., D. Leonard, “The Use of Character to Prove Conduct”, (1986–1987) 58 U. Colorado L.R. 1 (offering a catharsis-based explanation to the right to adduce evidence highlighting one's character). It is, however, an empirical question whether they are actually taken in this way. Whether the taxpayers' subsidy of litigation should cover also psychological (or otherwise ritualistic) satisfactions of the litigants is another question casting serious doubts upon the “freestanding rights” approach.
16. J.B. Thayer, A Preliminary Treatise on Evidence at the Common Law (1898) 314n.
17. L.J. Cohen, “Freedom of Proof”, in W.L. Twining (ed.) Facts in Law, (1983) 16 A.R.S.P. 1, at 21.
18. Cf. Joseph Raz, The Morality of Freedom (1986) 181.
19. This refers to a “strong discretion”, according to the taxonomy developed by R. Dworkin, Taking Rights Seriously (1977) 31–39.
20. Cohen, Taking Rights Seriously, at 10ff.
21. See L.J. Cohen, The Probable and the Provable (1977) ch. 24.
22. For further discussion of this assumption, see Twining, The Probable and the Provable, at ch. 4.
23. For its challenges based upon cognitive theory, see D. Kahneman, P. Slovic & A. Tversky (eds.), Judgment Under Uncertainty: Heuristics and Biases (1982).
24. For its recent legal-philosophical challenges, see D. Nicolson, “Truth, Reason and Justice: Epistemology and Politics in Evidence Discourse”, (1994) 57 M.L.R. 726
25. M.L. Seigel, “A Pragmatic Critique of Modern Evidence Scholarship”, (1994) 88 NW. U. L. R. 995.
26. Stein, REL, at 296ff.
27. See D. Nance, “The Best Evidence Principle”, (1988) 73 Iowa L. R. 227, at 229; 240.
28. See Federal Rule of Evidence (USA) (thereafter: FRE) 401
29. J.L. Montrose, “Basic Concepts of the Law of Evidence”, (1954) 70 L.Q.R. 527
30. R. Lempert, “Modeling Relevance”, (1977) 75 Mich. L.R. 1021
31. P. Tillers, “Modern Theories of Relevancy”, in Wigmore, Mich. L.R., vol. 1A (Tillers Revision, 1983) §37.
32. For full argument, see Stein, REL.
33. Stein, REL.
34. Scholars paying less attention to the risk-of-error problem may still favor (wrongly, in my opinion) the demolition of formal structures in the area of evidence law. See, e.g., M.R. Damaska, Evidence Law Adrift (1997). Those who adopt Bentham's utilitarian approach, which perceives the law of procedure and evidence as aiming solely to maximize the amount of correct decisions, would also support evidential discretionism. Because facts of each case are unique, particularized rulings on evidentiary matters will promote decisional accuracy far better than general rules. The utility principle will thus allow the risk of error to be allocated by judges, with no immunities granted to individual litigants. As for the risks regarded as especially harmful, such as conviction of an innocent person, they should be avoided – each risk individually – on utilitarian grounds.
35. See G. J. Postema, Bentham and the Common Law Tradition (1986) 341–357; 403–408
36. W.L. Twining, Theories of Evidence: Bentham & Wigmore (1985) 47ff, 98–100.
37. In civil cases, missing evidence may be left unaccounted for, if its absence cannot be attributed to one of the parties in dispute. This will allocate the risk of error in a roughly equal fashion. See A. Porat & A. Stein, “Liability for Uncertainty: Making Evidential Damage Actionable”, (1997) 18 Cardozo L.R. 501.
38. See L. J. Cohen, “The Role of Evidential Weight in Criminal Proof”, (1986) 66 B.U.L.R. 635, at 636–37.
39. J. M. Keynes, A Treatise on Probability (1st ed., 1921) 77.
40. Keynes, A Treatise on Probability., at 77, 84.
41. See A. Stein, “Judicial Fact-Finding and the Bayesian Method: The Case for Deeper Scepticism About their Combination”, (1996) 1 Int. J. Evidence & Proof 25.
42. Such arguments have been labeled and dealt with as “transforming arguments” in Stein, REL.
43. See Twining, REL, at chs. 3 & 4.
44. The term ‘ampliative induction’ is taken from L.J. Cohen, An Introduction to the Philosophy of Induction and Probability (1989) 1–4.
45. See Cohen, An Introduction to the Philosophy of Induction and Probability., at §1.
46. See Stein, REL, at 309–311.
47. For discussion of the same issue with regard to civil cases, see Stein, REL, at 333–342.
48. See FRE 801.
49. For a broader definition, adopted in England, see Wright v. Doe d. Tatham (1837) 7 A & E 313
50. R. v. Kearley [1992] 2 All ER 345.
51. In Israel, such statements would usually be admissible under sec. 10A of the Evidence Ordinance [New Version] 1971.
52. Those that are based upon functionally equivalent substitutes to cross-examination, which would secure the testability of the disputed statement: see E. Swift, “A Foundation Fact Approach to Hearsay”, (1987) 75 Calif. L.R. 1339.
53. See Stein, REL, at 312–316.
54. Hebrew speakers will find more on this issue in A. Stein, “Hearsay Statements as Evidence in Criminal Trials: ‘Is’ and ‘Ought’”, (1992) 21
55. Mishpatim 325
56. in A. Stein, “The Admissibility of Out-of-Court Statements as Evidence in Criminal Trials: On the New Bill, New Ideas, and the Same Old Tenets”, (1993) 10 Mechkarei Mishpat 157.
57. Frye v. United States 293 F. 1013 (1923).
58. See P.C. Giannelly, “The Admissibility of Novel Scientific Evidence. Frye v. United States: A Half-Century Later”, (1980) 80 Colum. L.R. 1197.
59. Daubert v. Merrell Dow Pharmaceuticals Inc., 113 S. Ct. 2786 (1993).
60. The Supreme Court had seemingly adjudicated the notorious Popper-Kuhn controversy in the philosophy of science favorably to Karl Popper. See S. Ct., at 2796–2797.
61. S. Ct., at 2797.
62. For a revealing discussion of the problems posed by Daubert, see R.J. Allen, “Expertise and the Daubert Decision”, (1994) 84 J. Crim. L. & Criminology 1157.
63. See A.A.S. Zuckerman, The Principles of Criminal Evidence (1989) 62–69.
64. See, e.g., Aflalu v. State of Israel, (1980) 34(iii) P.D. 56
65. Brooks v. State of Israel, (1989) 43(iii) P.D. 441.
66. Because judges are both institutionally and de facto incompetent to resolve scientific controversies, they can only defer to experts. See Allen, P.D.
67. Zuckerman, P.D., at 63–64.
68. For another skeptical view concerning the applicability of Daubert to evidence incriminating the accused see M.A. Berger, “Procedural Paradigms for Applying the Daubert Test”, (1994) 78 Minn. L.R. 1345, at 1352–1363. Unlike myself, Professor Berger stops short of arguing that Frye should be reinstated for this limited (but evidently important) purpose.
69. See Nance, Minn. L.R.
70. Cf. M.L. Seigel, “Rationalizing Hearsay: A Proposal for a Best Evidence Hearsay Rule”, (1992) 72 B. U. L.R. 893 (a more radical proposal to replace the hearsay rules by a broad best evidence principle).
71. This approach is taken by the Israeli Law of Criminal Procedure [Consolidated Version], sec. 162. In the United States, this approach would require an abolition of Griffin v. California, 380 US 609 (1965).
72. Provided that his actions against the witness have been proven beyond reasonable doubt (as required, e.g., in England, in R. v. Acton Justices, Ex Parte McMullen and others; R. v. Tower Bridge Magistrates' Court, Ex parte Lawlor, 92 Cr. App. Rep. 98, 104 (1991)).
73. In the US, admissibility conditions can be proven by a mere preponderance of the evidence: see Bourjaily v. United States, 483 US 171 (1987)
74. Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796, n. 10 (1993).
75. Generally adequate, this rule should become more differentiated. My proposal largely corresponds to FRE 804(b)(6) and to the argument made by R.D. Friedman, “Confrontation and the Definition of Chutzpa”, in this issue on p. 506 (except for the standard of proof requirement, which, under the American law and on Friedman's account, is considerably less exacting). In Israel, the disputed statement would be admitted under even less stringent conditions set by sec. 10A(b) of the Evidence Ordinance [New Version] 1971.
76. Cf. State of Connecticut v. Skipper, 637 A. 2d 1101 (1994).
77. See Stein, REL, at 322–342.