The jury and the law of evidence: real and imagined interconnections

Abstract

Among both legal practitioners and legal scholars, the view prevails that Anglo-American rules of evidence should be relaxed in trials where judges sit alone. The most frequently invoked reason for this view is that Anglo-American rules of evidence are called forth because of the cognitive weaknesses of lay adjudicators. Professional judges are supposed to be free of these weaknesses so that in juryless trials, much of the law of evidence loses its raison d'etre. However, since modern research has shown that professional and amateur adjudicators are both prone to over- or underestimate certain classes of information, the view has emerged that a uniform evidentiary regime is mandated for both lay and professional adjudicators. Both classes of adjudicators should be bound by strict rules of evidence. The article questions the wisdom of the uniform fact-finding regime. The main reason for scepticism is the difference in the institutional context of jury and juryless trials. When judges sit without the jury, they must decide not only on the admissibility of evidence but also on the ultimate disposition of the case. Thus, if an inadmissible item of information appears to them as persuasive, they are expected to switch to a third person's viewpoint and attempt to arrive at a decision by hypothesizing what outcome another adjudicator would reach who was uncontaminated by the forbidden information. In the author's opinion, the demand for such an impersonal mode of decision making is on several grounds undesirable. The author is also critical of the view that juryless systems failed to develop a comprehensive law of evidence. He argues that there are many sources of complex evidentiary arrangements, besides those related to lay participation in the administration of justice. As far as the European continent is concerned, this is best exemplified by the juryless Roman-canon procedure of the ancien regime, which developed a very comprehensive law of proof. Moreover, contrary to what is often believed by lawyers in the common law world, even contemporary continental procedures, dominated by professional judges, tend to generate a lot of evidence law although this law is for several reasons not clear in view of outside observers.