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The Refoundation of Evidence Law

Published online by Cambridge University Press:  09 June 2015

Alex Stein
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Extract

This article examines and criticizes the conventional evidence doctrine and its core principle (albeit with exceptions) of legally unregulated fact-finding. New foundations for evidence law are offered that reflect a principled allocation of the risk of error in conditions of uncertainty. Such conditions are present in virtually every litigated case. This article opposes the doctrine of ‘free proof’. That doctrine underlies the current flowering of discretion injudicial fact-finding and is responsible for the ongoing abolition of evidentiary rules. The evidence law theory developed in this article is of course itself theory-dependent. Far from claiming the theory here is uniquely correct rather than simply valid, I shall be satisfied by its survival as yet “another view of the Cathedral”. Nonetheless, evidence law as conventionally portrayed can hardly be compared with Monet’s Cathedral. It is conspicuously more like Pisa’s Leaning Tower. This article aims at returning the leaning tower of evidence law to an upright position.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 9 , Issue 2 , July 1996 , pp. 279 - 342
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Copyright © Canadian Journal of Law and Jurisprudence 1996

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References

Different drafts of this article were presented at a Conference on the Reform of Criminal Evidence (Vancouver, 1992), at an International Conference on the Rights of the Accused, Crime Control, and Protection of Victims (Jerusalem, 1993), at faculty seminars held by the Faculty of Law, Hebrew University of Jerusalem (1994), by the University of Florida College of Law (1995), and at a workshop on evidence theory held at Cardozo Law School (1995). I wish to express my appreciation to all those who participated in these events. In particular, I am grateful to Ron Allen, Eyal Benvenisti, Craig Callen. Charles Collier, Zohar Goshen, Eliahu Harnon, John Jackson, Motta Kremnitzer, Dale Nance, Edward Rock, Michael Seigel, Glenn Shafer, Ron Shapira, Christopher Slobogin, Peter Tillers, Nina Zaltzman. and Azriel Zuckerman for their valuable criticism and suggestions.

Special thanks for the continuing support of Professor William Twining, who supervised my doc-torate dissertation in which I developed many of the ideas that shaped this article. I have also benefited from research assistance ably provided by Jennifer Goldberg and Patricia Hernandez (class 1996, University of Miami School of Law) and by Irus Braverman and Tirza Leibovitz (graduates of the Law Faculty, Hebrew University of Jerusalem). Finally, I would like to express my gratitude to Dean Samuel C. Thompson, Jr. and to both the administration and the faculty of the University of Miami School of Law for their hospitality during 1994/95.

1. This metaphor is borrowed from Calabresi, Guido & Melamed, A. Douglas “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral” (1972) 85 Harv. L. Rev. 1089.CrossRefGoogle Scholar

2. Bentham, Jeremy Rationale of Judicial Evidence, vol. 5 (London: J. W. Paget, 1827) at 477–94.Google Scholar

3. See Bentham, ibid.; Chamberlyne, Charles F. “The Modern Law of Evidence and Its Purpose” (1908) 42 Am. L. Rev. 757;Google Scholar Hand, Learned “The Deficiencies of Trials to Reach the Heart of the Matter” in Lectures on Legal Topics, 1921–1922 (New York: Macmillan, 1926) at 96–104;Google Scholar Wigmore, John H. A Treatise on the Anglo-American System of Evidence in Trials at Common Law §8c 3d ed. (Boston: Little, Brown, 1940)Google Scholar (endorsing many of Bentham’s claims, but not supporting a wholesale abolition of evidentiary rules); Davis, Kenneth C. “An Approach to Rules of Evidence for Non-Jury Cases” (1964) 50 Am. Bar Assoc. J. 723 at 726Google Scholar (“Our sick body of evidence law will get well sooner if our American doctors will consult with some European evidence doctors”); Davis, Kenneth C. Administrative Law Treatise, 2d ed. (San Diego, CA: K.C. Davis, U. of San Diego, 1980) § 16:2.Google Scholar For discussions of this claim see Twining, William L. Theories of Evidence: Bentham and Wigmore (London: Weidenfeld & Nicolson, 1985);Google Scholar Lewis, A.D.E. “The Background to Bentham on Evidence” (1990) 2 Utilitas 195;CrossRefGoogle Scholar Landsman, Stephan “From Gilbert to Bentham: The Reconceptualization of Evidence Theory” (1990) 36 Wayne L. Rev. 1149.Google Scholar

4. The best general discussion of this phenomenon can be found in Damaška, Mirjan R. “Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study” (1973) 121 U. Penn. L. Rev. 506;CrossRefGoogle Scholar and in Damaska, Mirjan R. The Faces Of Justice and State Authority (New Haven, CT: Yale University Press, 1986).Google Scholar See also Nijboer, J.F. “Common Law Tradition in Evidence Scholarship Observed from a Continental Perspective” (1993) 41 Am. J. Comp. Law 299 at 301CrossRefGoogle Scholar (“By the way: Before 1838 evidence was traditionally not seen as a part of procedural law. In the eighteenth century it was often viewed by Dutch legal scholars as a special subject ‘an sich’.”): and consider the following statement made by a German jurist Hermann Kantorowitz:

From the ruins of torture arose triumphantly, to the horror of all the despondent, free proof-assessment, the pride of the present.

Herget, James E. & Wallace, Stephen “The German Free Law Movement as the Source of American Legal Realism” (1987) 73 Va. L. Rev. 399 at 415.CrossRefGoogle Scholar

5. See, e.g., Damaška, ibid, at 540–41 (proof beyond reasonable doubt as a general requirement); Nijboer, ibid., at 309 (best available evidence as a general requirement).

6. See Nijboer, supra note 4 at 301 ff. For discussion of some of these rules see Frase, Richard S. “Introduction” in The French Code of Criminal Procedure, The American Series Of Foreign Penal Codes, vol. 29 (Littleton, CO.: F.B. Rothman, 1988) at 21–31.;Google Scholar Schmidt, Eberhard “Introduction” in The German Code of Criminal Procedure, The American Series of Foreign Penal Codes, vol. 10 (Littleton, CO.: F.B. Rothman, ]1965) at 13–17;Google Scholar Langbein, John H. Comparative Criminal Procedure: Germany (St. Paul, MN: West Publishing, 1977) at 61–86.Google Scholar

7. See, e.g.. §§52–53a 0f the German Code of Criminal Procedure (privileges applying, inter alia, to fiancés, spouses and some other relatives of the accused, to clergymen, to patient-physician and attorney-client relationships and to governmental secrets).

8. See, e.g., Code Civil (France), Arts. 1341–48 .

9. See Farnsworth, E. Allan Contracts (Boston: Little, Brown, 1982) §§7.2, 7.3.Google Scholar

10. See Thayer, James B. A Preliminary Treatise on Evidence at the Common Law (South Hackensack, NJ: Rothman, 1898) 390; 512;Google Scholar Farnsworth, ibid, at §7.2.

11. E.g., rules that exclude illegally obtained evidence. See Pakter, Walter “The Exclusionary Rule in France, Germany and Italy” (1985) 9 Hast. Int. & Comp. L. Rev. 1;Google Scholar Bradley, Craig M. “The Exclusionary Rule in Germany” (1983) 96 Harv. L. Rev. 1032.CrossRefGoogle Scholar

12. The following discussion draws on: Thayer, supra note 10, ch.12; Wigmore, supra note 3, §8; Thayer, Ezra R. “Observations on the Law of Evidence” (1915) 13 Mich. L. Rev. 355 at 364CrossRefGoogle Scholar (“ask any able and candid judge of some experience how far he goes by the books in ruling on questions on evidence. His answer will confirm what Mr. Choate once said to me in speaking of my father’s Treatise on Evidence, then recently published. He said, ‘Tell your father it is a good book, but it is a pity he did not publish it while there was still such a thing in existence as the law of evidence.’”); McCormick, Charles “Tomorrow’s Law of Evidence” (1938) 24 Am. Bar Assoc. J. 507;Google Scholar Morgan, Edmund & Maguire, John “Looking Backward and Forward at Evidence” (1937) 50 Harv. L. Rev. 909 at 922–23;CrossRefGoogle Scholar Morgan, Edmund “The Jury and the Exclusionary Rules of Evidence” (1937) 4 U. Chi. L. Rev. 247;CrossRefGoogle Scholar Maguire, John Evidence; Common Sense, and Common Law (Chicago: The Foundation Press, 1947) at 10ff;Google Scholar Cleary, Edward “Evidence as a Problem in Communicating” (1952) 5 Vand. L. Rev. 277;Google Scholar Weinstein, Jack “Some Difficulties in Devising Rules for Determining Truth in Judicial Trials” (1966) 66 Colum. L. Rev. 223;CrossRefGoogle Scholar McNamara, Philip “The Canons of Evidence—Rules of Exclusion or Rules of Use?” (1986) 10 Adelaide L. Rev. 341;Google Scholar Mengler, Thomas M. “The Theory of Discretion in the Federal Rules of Evidence” (1989) 74 Iowa L. Rev. 413;Google Scholar Twining, William L. Rethinking Evidence: Exploratory Essays (Oxford: Blackwell, 1990) ch.6;Google Scholar Bryden, David P. & Park, Roger C. “Other Crimes’ Evidence in Sex Offence Cases” (1994) 78 Minn. L. Rev. 529 at 561Google Scholar (“For centuries, the movement has been toward abolition of those evidentiary rules that have as their basis the danger of misleading the fact-finder. Jurists and scholars alike increasingly have agreed with Bentham that technical rules of evidence designed to prevent fact-finders from making mistakes are, at best, more trouble than they are worth.”).

13. Later in this article, they will be referred to as FRE.

14. See McNamara; Twining; and Mengler, supra note 12.

15. See Strong, John W. et al., McCorinick on Evidence, vol.14th ed. (St. Paul, MN: West Publishing, 1992) at 268–72.Google Scholar

16. See, e.g., McCormick, ibid. ch. 15; Choo, Andrew L.T. Abuse of Process and Judicial Slays of Criminal Proceedings (Oxford: Oxford University Press, 1993) at 88–118.Google Scholar

17. Wigmore, supra note 3, §11.

18. Kunert, Karl H. “Some Observations on the Origin and Structure of Evidence Rules Under the Common Law System and the Civil Law System of ‘Free Proof’ in the German Code of Criminal Procedure” (1966–67) 16 Buffalo L. Rev. 122.Google Scholar

19. See “Symposium: Does Evidence Law Matter?” (1992) 25 Loyola L.A. L. Rev. 629–1023. See also Park, Roger C. “Evidence Scholarship, Old and New” (1991) 75 Minn. L. Rev. 849 at 859–71.Google Scholar

20. See Twining, supra note 12 at 1.

21. See Lempert, Richard “The New Evidence Scholarship: Analyzing the Process of Proof” (1986) 66 Boston U. L. Rev. 439.Google Scholar

22. For a brief survey of the ‘New Evidence Scholarship’ see Twining, William & Stein, Alex “Evidence and Proof” in The International Library of Essays in Law and Legal Theory Areas—volume XI (New York: New York University Press, 1992) at 21–4.Google Scholar

23. See L. Jonathan Cohen, “Freedom of Proof” in Twining, William ed., “Facts in Law” (1983) 16 Archive für Rechts-und Sozialphilosophie 1;Google Scholar Twining, supra note 12, ch.3; Tillers, Peter & Schum, David “Hearsay Logic” (1992) 76 Minn. L. Rev. 813 at 815Google Scholar (“The law of evidence, by its nature, is a type of epistemological theory. The epistemology of the American law of evidence has an empiricist tinge.”).

24. See Purcell, Edward A. Jr. The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington: University Press of Kentucky, 1973);Google Scholar Fishkin, James Beyond Subjective Morality (New Haven, CT: Yale University Press, 1984);Google Scholar Fishkin, James “Liberal Theory and the Problem of Justification” (1986) 28 Nomos 207.Google Scholar

25. Cf. Raz, Joseph The Morality of Freedom (Oxford: Clarendon Press, 1986) at 181.Google Scholar

26. Cohen, supra noie 23 at 12–14.

27. See Twining, supra note 3 at 66–100.

28. Bentham, supra note 2 at 1–15.

29. Bentham, Jeremy A Treatise on Judicial Evidence (London: J.W. Paget, 1825) at 6–7.Google Scholar

30. Cf. Rorty, Richard “Solidarity or Objectivity” in Rajchman, John & West, Cornel Post-Analytic Philosophy (New York: Columbia University Press, 1985) at 3.Google Scholar

31. Twining, William L. “Hot Air in the Redwoods, A Sequel to the Wind in the Willows” (1988) 86 Mich. L. Rev. 1523 at 1539–41.CrossRefGoogle Scholar

32. This echoes the well-known incommensurability problem. See, e.g., Schauer, Frederick “Commensurability and Its Constitutional Consequences” (1994) 45 Hast. L.J. 785.Google Scholar

33. For critique of Bentham’s Fixed hierarchical value-structures see Graham, Kenneth Jr. “There’ll Always be an England: The Instrumental Ideology of Evidence” (1987) 85 Mich. L. Rev. 1204.CrossRefGoogle Scholar See also Graham, Kenneth Jr. “The Persistence of Progressive Proceduralism” (1983) 61 Tex. L. Rev. 929.Google Scholar

34. Heydon, J.D. Evidence: Cases and Materials 2d ed. (London: Butterworths, 1984) at 3.Google Scholar

35. Twining, supra note 12 at 197.

36. See supra notes 3 and 12.

37. Subject to those few passages where a differentiation between judges and jurors is either explicit or implicit, this article’s use of the terms ‘judge/s’, ‘judicial’ etc., will be generic.

38. This session took place at a Conference on the Reform of Criminal Evidence, organized by the Society for Criminal Law Reform (Vancouver, August, 1992). Credit for framing the issue in this way goes to the Conference Chairperson, Professor Ronald Allen.

39. See Kunert, supra note 18.

40. Galligan, Denis “More Scepticism about Scepticism” (1988) 8 Oxford J. of Legal Stud. 249 at 257.CrossRefGoogle Scholar

41. Cohen, supra note 23.

42. Ekelöf, Per Olof “Free Evaluation of Evidence” (1964) 8 Scandinavian Studies in Law 47.Google Scholar

43. See Twining, supra note 12, ch.6.

44. McCormick, supra note 15, chs.8–12.

45. See, e.g., Greenawalt, Kent “Silence as a Moral and Constitutional Right” (1981) 23 Wm. & Mary L. Rev. 15;Google Scholar Stuntz, William J. “Self-incrimination and Excuse” (1988) 88 Colum. L. Rev. 1227.CrossRefGoogle Scholar

46. See Arenella, Peter “Schmerber and the Privilege Against Self-incrimination: A Reappraisal” (1982) 20 Am. Crim. L. Rev. 31.Google Scholar

47. See FREI 004(1); 804(a); Nance, Dale “The Best Evidence Principle” (1988) 73 Iowa L. Rev. 227.Google Scholar

48. See, e.g., Thayer, James B. “Presumptions and the Law of Evidence” (1889) 3 Harv. L. Rev. 141;CrossRefGoogle Scholar Morgan, Edmund “Presumptions” (1937) 12 Wash. L. Rev. 255;Google Scholar Laughlin, Charles V. “In Support of the Thayer Theory of Presumptions” (1953) 52 Mich. L. Rev. 195;CrossRefGoogle Scholar Allen, Ronald J. “Presumptions in Civil Actions Reconsidered” (1981) 66 Iowa L. Rev. 843.Google Scholar

49. Although there is no general formal requirement to this effect, this would arguably be the best proof. See, e.g., Lipton, Jack P. “A New Look at the Use of Social Science Evidence in Trademark Litigation” (1988) 78 Trademark Rep. 32 at 63Google Scholar (“the failure of a trademark owner to run a survey may now give rise to an adverse inference.”); Jacoby, Jacob, Handiin, Amy H. & Simonson, Alex “Survey Evidence in Deceptive Advertising Cases under the Lanham Act: An Historical Review of Comments from the Bench” (1994) 84 Trademark Rep. 541.Google Scholar

50. See McNaughton, John “Judicial Notice—Excerpts Relating to the Morgan-Wigmore Controversy” (1961) 14 Vand. L. Rev. 779;Google Scholar Davis, Kenneth C. “Judicial Notice” (1955) 55 Colum. L. Rev. 945.CrossRefGoogle Scholar

51. See FRE 201 (d), according to which taking of a judicial notice in civil litigation becomes mandatory upon request.

52. See FRE 408. See also FRE 410 (the same applies to plea bargaining); Rush & Tompkins v. GLC. [1988] 3 All E.R. 737; Brazil, Wayne D., “Protecting the Confidentiality of Settlement Negotiations” (1988) 39 Hast. L.J. 955.Google Scholar

53. See Kaplow, Louis, “Rules versus Standards: An Economic Analysis” (1992) 42 Duke L.J. 557.CrossRefGoogle Scholar

54. See, e.g., Sartorius, Rolf, “Social Policy and Judicial Legislation” (1971) 8 Am. Phil. Quart. 151.Google Scholar

55. See McCormick, supra note 15, chs. 13-15. See also Ashworth, Andrew, “Excluding Evidence as Protecting Rights” (1977) Crim. L. Rev. 723.Google Scholar

56. FRE 407.

57. See Flaminio v. Honda Motor Co., 733 F.2d 463 (7th Cir. 1984) (Posner, J.).

58. For its discussion see Note, “Making Sense of Rules of Privilege Under the Structural (ll)logic of the Federal Rules of Evidence” ( 1992) 105 Harv. L. Rev. 1339 at 1351 ff.

59. Cf. Ayres, Ian & Gertner, Robert, “Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules” (1989) 99 Yale L. J. 87.CrossRefGoogle Scholar

60. As acknowledged, e.g., by Blackmun, Justice in University of Pennsylvania v. Equal Employment Opportunity Commission 110 S.Ct. 577 at 582 (1990).Google Scholar

61. Summers, Robert, “Evaluating and Improving Legal Process—A Plea for ‘Process Values’” (1974) 60 Cornell L. Rev. I;Google Scholar Bayles, Michael D., “Principles for Legal Procedure” (1986) 5 L. & Phil. 33.CrossRefGoogle Scholar

62. Cf. Jonakait, Randolph N., “Restoring the Confrontation Clause to the Sixth Amendment” (1988) 35 U.C.L.A. L. Rev. 557.Google Scholar

63. See FRE 404(a); Mueller, Christopher B. & Kirkpatrick, Laird C., Evidence (Boston: Brown & Co., 1995) at 216–18.Google ScholarPubMed

64. See, e.g., Wasserman, David T., “The Morality of Statistical Proof and the Risk of Mistaken Liability” (1991) 13 Cardozo L. Rev. 935.Google Scholar

65. See Wasserman, ibid. Cf. Acorn, A.E., “Similar Fact Evidence and the Principle of Inductive Reasoning: Makin Sense” (1991) 11 Oxford J. of Legal Stud. 63 CrossRefGoogle Scholar (1991). As Dworkin wrote, “[i]t is unjust to put someone in jail on the basis of a judgment about a class, however accurate, because that denies his claim to equal respect as an individual.” Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1978) at 13.Google ScholarPubMed

66. See FRE 412; Sexual Offences (Amendment Act) (U.K.), 1976, s.2; Temkin, Jennifer, Rape and the Legal Process (London: Sweet & Maxwell, 1987) at 119–33.Google Scholar

67. Mueller & Kirkpatrick, supra note 63 at 235–44.

68. Zuckerman, Adrian A.S., The Principles of Criminal Evidence (Oxford: Clarendon Press, 1989) ch. 16;Google Scholar Dennis, Ian H., “Reconstructing the Law of Criminal Evidence” (1989) 42 Current Legal Problems 21.Google Scholar

69. US v. Leon, 468 U.S. 897 at 938 (1984) (the dissenting opinion of Brennan, J.).

70. See Nesson, Charles R., “The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts” (1985) 98 Harv. L. Rev. 1357;CrossRefGoogle Scholar Nesson, Charles R. & Benkler, Yochai. “Constitutional Hearsay: Requiring Foundational Testing and Corroboration Under the Confrontation Clause” (1995) 81 Va. L. Rev. 149.CrossRefGoogle Scholar See also Note, “The Theoretical Foundation of the Hearsay Rules” (1980)93 Harv. L. Rev. 1786 at 1807.

71. For its general discussion see Nesson, ibid.; Dennis, supra, note 68.

72. See FRE 404(a), 609.

73. See, e.g., FRE 411 (liability insurance not admissible upon the issue whether the insured acted negligently or wrongfully).

74. See FRE 403; The Police and Criminal Evidence Act (U.K.), 1984, s.78; Imwinkelried, Edward J., “The Meaning of Probative Value and Prejudice” (1988) 41 Vand. L. Rev. 879.Google Scholar See also Bruton v. United States, 391 U.S. 123 (1968) (the defendant’s out-of-court confession, admissible against him only, but not against his co-defendant, should be excluded because of its likely ‘spillover effect’).

75. Allocation of the risk of error in civil trials will be dealt with later in this article.

76. See Nozick, Robert, Anarchy, State and Utopia (Oxford: Blackwell, 1974) at 96ff;Google Scholar Wertheimer, Alan, “Punishing the Innocent-Unintentionally” (1977) 20 Inquiry 45.CrossRefGoogle Scholar

77. See Wertheimer, ibid.; Mueller & Kirkpatrick, supra note 63, eh.3.

78. E.g., in the rules excluding hearsay and character evidence.

79. In England, for example, the judge had, until recently, to warn the jury that it would be dangerous to convict the accused upon his accomplice’s testimony, unless it is corroborated by some independent evidence. Davies v. DPP [1954] 1 All E.R. 507 at 513; and see infra note 221.

80. See, e.g., Patterson v. New York 432 U.S. 197 (1977); The Magistrates1 Courts Act (U.K.), 1980, s.101; Mueller & Kirkpatrick, supra note 63 at 159-66; Zuckerman, supra note 68 at 142–51.

81. For discussion of this issue see Stein, Alex, “Criminal Defenses and the Burden of Proof” (1991) 28 Coexistence 133;Google Scholar Stein, Alex, “After Hunt: The Burden of Proof, Risk of Non-Persuasion and Judicial Pragmatism” (1991) 54 Modern Law Rev. 570;CrossRefGoogle Scholar Stein, Alex, “From Blackstone to Woolmington: On the Development of a Legal Doctrine” (1993) 14 J. of Legal Hist. 14.CrossRefGoogle Scholar

82. See, e.g., Beardsley, James, “Proof of Fact in French Civil Procedure” (1986) 34 Am. J. Comp. L. 459 CrossRefGoogle Scholar (observing the existence of ‘fact-avoidance’ as a means of conflict-resolution); Pakter, supra note 11 (illegally obtained evidence may exceptionally be excluded in France, Germany and Italy); Fassler, Lawrence J., “The Italian Penal Procedure Code: An Adversarial System of Criminal Procedure in Continental Europe” (1991) 29 Colum. J. Transnat’l L. 245 Google Scholar (a larger number of values overriding rectitude of decision recognized by the Italian criminal justice system).

83. See Damaška, supra note 4 in The Faces of Justice and State Authority at 54-56, and in U. Penn. L. Rev. passim. See also Fletcher, George, “The Right and the Reasonable” (1985) 98 Harv. L. Rev. 949 (fixed hierarchical structuring of legally protected values as generally characterizing the Continental legal doctrine).CrossRefGoogle Scholar

84. Thayer, supra note 10 at 314.

85. Cohen, supra note 23 at 21.

86. Legally undisturbed fact-finding by the jury may be regarded as a political virtue. Arguably, the jury should be licensed to settle cases holistically by applying undifferentiated community stan-dards. See, e.g., Zuckerman, supra note 68, chs.1-3; Collier, Charles, “The Improper Use of Presumptions in Recent Criminal Law Adjudication” (1986) 38 Stan. L. Rev. 423 at 457-60.CrossRefGoogle Scholar My article is premised on a different theory of legitimacy, one that requires articulated justification for judicially prescribed coercion.

87. Cohen, supra note 23 at lOff.

88. For its discussion see Twining, supra note 12, ch.4. For its recent philosophical defence see Kornblith, Hilary, Inductive Inference and Its Natural Ground: An Essay in Naturalistic Epistemology (Cambridge, MA: MIT Press, 1993).Google Scholar I accept this assumption as practically correct. See Cohen, L. Jonathan, The Probable and the Provable (Oxford: Clarendon Press, 1977)CrossRefGoogle Scholar ch. 24. For a recent challenge of this assumption see Nicolson, Donald, “Truth, Reason and Justice: Epistemology and Politics in Evidence Discourse” (1994) 57 Modern Law Rev. 726.CrossRefGoogle Scholar See also Seigel, Michael L., “A Pragmatic Critique of Modern Evidence Scholarship” (1994) 88 Northwestern U. L. Rev. 995 Google Scholar (arguing that evidence scholarship has been distorted by the ‘twin vices of foundationalism and logical positivism’ and that these epistemological assumptions need to be replaced with pragmatism and practical reason).

89. Intentionally or not, traditional expository writings on evidence law tend to strengthen this assumption. This is done as follows:

  • (1)

    (1) first, by portraying evidentiary rules as exceptions to Freedom of Proof, which, in turn, are subject to their own exceptions that reinstate this freedom. This marginalizes the legal, i.e., value-motivated, interference with the allegedly empirical reasoning followed by judges;

  • (2)

    (2) second, by dichotomously dividing the already exceptional rules into two distinct (Wigmorean) categories:

  • (a)

    (a) rules grounded on ‘auxiliary’ or ‘probative’ policies which are justified empirically;

  • (b)

    (b) rules motivated by ‘extrinsic’ policies, i.e. by the exceptionally strong value considerations which set aside decisional rectitude.

This attains further marginalization of values in judicial fact-finding.

A vivid example of this marginalization can be found in Dale Nance’s influential article, dedicated to the ‘best evidence principle’. Professor Nance writes:

More generally, this Article demonstrates that, putting aside the rules, such as those governing privileges, which are said to serve extrinsic social policies, the remaining evidentiary rules are more plausibly attributable to the epistemic concerns of a tribunal… This operationalized meaning, which can be said to refer to the evidence that is ‘epistemically best’, is the primary focus of our attention.

Nance, supra note 47 at 229; 240. My claim can be easily verified by any standard treatise on evidence, such as McCormick, supra note 15; Tapper, Colin, Cross on Evidence 7th ed. (London: Butterworths, 1990).Google Scholar

90. See FRE 401; Montrose, James L., “Basic Concepts of the Law of Evidence” (1954) 70 L. Quart. Rev. 527;Google Scholar Lempert, Richard, “Modeling Relevance” (1977) 75 Mich. L. Rev. 1021;CrossRefGoogle Scholar Ball, Vaughn, “The Myth of Conditional Relevancy” (1980) 14 Georgia L. Rev. 435;Google Scholar Tillers, Peter. “Modern Theories of Relevancy” §37 of Wigmore on Evidence, vol. 1A, (Boston: Little. Brown, 1983);Google Scholar Nance, Dale, “Conditional Relevance Reinterpreted” (1990) 70 Boston U. L. Rev. 447;Google Scholar Allen, Ronald J., “The Myth of Conditional Relevancy” (1992) 25 Loyola L.A. L. Rev. 871.Google Scholar

91. By devoting to the issue of weight less than one page (page 61 out of 736) Cross on Evidence, supra, note 89) provides a representative example. This work admits that the “…tendency of the modern law is in favour of a broad basis of admissibility” (ibid, at 61 ). Determination of evidential weight was placed beyond the scope of this work presumably because “the former [evidential admissibility] is a matter of law; weight of evidence, on the other hand, is a question of fact” (ibid.). This statement is based on the assumption of separation. See also McCormick, supra note 15; Mueller & Kirkpatrick, supra note 63; Weinstein, Jack & Berger, Margaret, Weinstein’s Evidence (New York: M. Bender, 1975);Google Scholar Fishman, Clifford S., Jones on Evidence 7th ed. (Rochester, NY: Lawyers Co-operative, 1994) (not discussing evidential weight).Google Scholar

92. See Lempert, supra note 21.

93. These works include, principally, Gulson, J.R., Philosophy of Proof, 1 st ed. (Littleton, CO: F.B. Rothman, 1905);Google Scholar Wigmore, John H., The Principles of Judicial Proof, 2d ed. (Boston: Little, Brown, 1931 );Google Scholar Wigmore, John H., The Science of Judicial Proof 3d ed. (Boston: Little, Brown, 1937)Google Scholar (subsequent references will be made to the second edition of this book); Michael, Jerome & Adler, Mortimer, The Nature of Judicial Proof: An Inquiry into the Logical, Legal and Empirical Aspects of the Law of Evidence (tentative draft, 1931);Google Scholar Michael, Jerome & Adler, Mortimer, The Trial on an Issue of Fact (1934) 34 Colum. L. Rev. 1224;CrossRefGoogle Scholar Michael, Jerome & Adler, Mortimer, “Real Proof” (1952) 5 Vand. L. Rev. 344;Google Scholar Tillers, Peter & Schum, David, “Charting New Territory in Judicial Proof: Beyond Wigmore” (1988) 9 Cardozo L. Rev. 907;Google Scholar Anderson, Terence & Twining, William, Analysis of Evidence (London: Weidenfeld and Nicolson, 1991 ) ch.6;Google Scholar Hastie, Reid, Penrod, Steven D. & Pennington, Nancy, Inside the Jury (Cambridge, MA: Harvard University Press, 1983) 163–64 and 234ff;CrossRefGoogle Scholar Allen, Ronald J., “Factual Ambiguity and a Theory of Evidence” (1994) 88 Northwestern U. L. Rev. 604;Google Scholar and other materials listed in Twining & Stein, supra note 22.

94. See, e.g., Bentham, supra note 2, vol. 1 at 1–2 (“To give instructions, serving to assist the mind of the judge in forming its estimate of the probability of truth, in the instance of the evidence presented to it; in a word, in judging of the weight of evidence: this is the other of the two main problems which are here attempted to be solved.”). An exception to this observation (the only one I am aware of) can be found in Cohen, L. Jonathan, “The Role of Evidential Weight in Criminal Proof” (1986) 66 Boston U. L. Rev. 635.Google Scholar

95. See, e.g., Beaver v. Fidelity Life Association, 313 F.2d 112 at 115 (10th Cir., 1963) (“The trial court instructed the jury … that there is a presumption against suicide. … [i]t may be that the trial court’s instruction did not accord the presumption the evidential weight … Kansas decisions are inclined to give it.”); Grenke v. Commonwealth, 796 S.W.2d 858 at 859 (Ky., 1990) (“The temporal remoteness of a prior conviction affects its evidential weight.”); Barclays Bank PLC v. Franchise Tax Board of California 114 S.Ct. 2268 at 2286 note 32 (1994) (“The Solicitor General suggests that… ‘the statements of executive branch officials are entitled to substantial evidentiary weight…’. We need not to resolve this dispute.”); United States v. Perry, 1995 U.S. App. Lexis 2011 (4th Cir., 1995) (“Defendant’s assertion of his speedy trial right is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.”); United States v. Dirden, 38 F.3d 1131 at 1138 (10th Cir., 1994) (“the defendant’s assertion of the speedy trial right is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.”); United States v. Burns, 37 F.3d 276 at 281–82 (7th Cir., 1994) (“The answers to the questions asked during the search are of minimal evidentiary weight compared to the kilogram of cocaine found in the motel room.”); In re Air Disaster at Lockerbie Scotland on December 21, 1988, 37 F.3d 804 at 837 (2nd Cir., 1994) (citing the district judge: “But I may give evidentiary weight, probable cause weight, to the fact that a grand jury has returned the indictment.”); United States v. Abreo, 30 F.3d 29 at 32 (5th Cir., 1994) (“Abreo signed an unambiguous plea agreement that made no mention of a preservation of his right to pursue a suppression claim. Such a document is accorded great evidentiary weight.”); Adams v. Leapley, 31 F.3d 713 at 715 (8th Cir., 1994) (“We further note that Adams was able to challenge the evidentiary weight of these tests by thoroughly cross-examining Riis and by presenting his own expert witness.”).

See also Black’s Law Dictionary 6th ed. (St. Paul, MN: West Pub.. 1990) at 1594. (“Weight of evidence. The balance or preponderance of evidence; the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their ver-dict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.”.

96. See Von Wright, Georg H. A Treatise on Induction and Probability (New York: Harcourt, 1951) ch.7;Google Scholar Kneale, William Probability and Induction (Oxford: Clarendon Press, 1949) ch.3;Google Scholar Carnap, Rudolf Logical Foundations of Probability (Chicago: University of Chicago Press, 1950) ch.2;Google Scholar Cohen, L. Jonathan An Introduction to the Philosophy of Induction and Probability (Oxford: Clarendon Press, 1989) ch. 1.Google Scholar

97. Probability arguments may also be confined to merely stating the amount of F’s in S. Such ‘enumerative’, as opposed to ‘ampliative’, statements make no inferential progress and are therefore unimportant. See Cohen, ibid. at 1–2.

98. See Cohen, supra note 96; Tillers, supra note 90, §37.6; Shafer, Glenn & Pearl, Judea Readings in Uncertain Reasoning (San Mateo, CA: Morgan Kaufmann, 1990).Google Scholar

99. Cohen, supra note 96 at 53–58.

100. P[F1 & F2] needs to be subtracted from the right side of this equation in order to avoid double-counting. See, e.g., Kneale, supra note 96 at 125–26.

101. See, e.g.. Resnik, Michael D. Choices: An Introduction to Decision Theory (Minneapolis: University of Minnesota Press, 1987) at 68–74.Google Scholar

102. The same can be restated as derivation of the posterior odds from the prior odds and the likelihood ratio:

103. Application of the Bayesian approach would involve severe computational difficulties in cases involving numerous items of evidence. See Callen, Craig R. “Notes on a Grand Illusion: Some Limits on the Use of Bayesian Theory in Evidence Law” (1982) 57 Indiana L.J. 1 at 15.Google ScholarThis approach would also require judges to proceed from the bulk of general knowledge which they cannot reasonably be expected to possess. See Allen, supra note 93 at 607–08. This approach is also internally problematic because it forces judges into probabilistic reasoning that would have an artificially diminished weight. See infra notes 121–23 and the adjacent text. For more details see Stein,, Alex “Judicial Fact-Finding and the Bayesian Method: The Case for Deeper Scepticism About Their Combination” forthcoming in (1996) 1 Google ScholarEvidence & Proof.

104. Jonathan Cohen, L. “On the Psychology of Prediction: Whose is the Fallacy?” (1979) 7 Cognition 385 at 389. For a detailed account and formalization of Baconian probability see Cohen, supra note 88, part III; Cohen, supra note 96, chs. I and 5.CrossRefGoogle Scholar

105. See Cohen, supra note 96, § 14.

106. An approach known as ‘atomistic’. See Twining, supra note 12, ch.9: Anderson & Twining, supra note 93, 168–69. This approach was favored by Wigmore, supra note 93. See also Tillers & Schum, supra note 93.

107. See Frank, Jerome Courts on Trial (Princeton, NJ: Princeton University Press, 1949) at 165–85;Google Scholar Neil MacCormick, D. Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978) at 87–93;Google Scholar Neil MacCormick, D. “The Coherence of a Case and the Reasonableness of Doubt” (1980) 2 Liverpool L. Rev. 45;CrossRefGoogle Scholar Neil MacCormick, D. “Coherence in Legal Justification” in Krawietz, W. etal., Theorie der Normen (Berlin: Duncker & Humblot, 1984) 37;Google Scholar Abu-Hareira, M.A. “An Early Holistic Conception of Judicial Fact-Finding” (1986) Juridical Rev 79:Google Scholar Sherwin, Richard K. “Law Frames: Historical Truth and Narrative Necessity in a Criminal Case” (1994) 47 Stan. L. Rev 39.CrossRefGoogle ScholarAllen, supra note 93, contains an especially powerful account.

108. Twining, supra note 12, ch.9; Anderson & Twining, supra note 93 at 168–69.

109. Keynes, John M. A Treatise on Probability, 1st ed. (London: Macmillan, 1921) at 71 and 77.Google Scholar For further discussion see Jonathan Cohen, L. “Twelve Questions about Keynes’s Concept of Weight” (1985) 37 British J. for the Phil, of Science 263; CrossRefGoogle ScholarCohen, supra note 96, §14.

110. Cohen, supra note 96, §14.

111. Cohen, supra note 88 at 75.

112. Not according to the intuitions held by the late Sir Richard Eggleston and Professor Glanville Williams.See Eggleston, Richard “The Probability Debate” (1980) Crim. L. Rev. 678;Google Scholar Eggleston, Richard “Focusing on the Defendant” (1987) 61 Aust. L.J. 58;Google Scholar Williams, Glanville “The Mathematics of Proof” (1979) Crim. L. Rev. 297.Google Scholar

113. The problem of weight cannot be avoided by resorting to the ‘indifference doctrine’, often named as ‘the principle of insufficient reason’ (see Cohen supra note 96, §6). Under this doctrine, two mutually inconsistent factual possibilities should be deemed equiprobable as long as there is no evidence-based reason to treat one of them as being more probable than the other. This assumption is obviously problematic because it purports to procreate knowledge out of ignorance. But dif-ficulties involved in the indifference doctrine go far beyond that. As pointed out by William Kneale,

[the ‘indifference doctrine’] is supposed to justify the assertion that the probability of a die’s falling with the number one uppermost is 1/6, but it could be used equally well to justify an assertion that the probability is 1/2. For we may consider as our alternatives the two cases falling-with-the-number-one-uppermost and falling-with-some-other-num-ber-uppermost; and, when our only information is that a die has been thrown, we may say that we know of no reason to assert either of these alternatives rather than the other. From this it should follow that their probabilities are each equal to 1/2. A precisely similar argument can, of course, be constructed to show that the probability of a die’s falling with the number two uppermost is 1/2, and so on for each of the six possible results, which is absurd.

Kneale, supra note 96 at 147.

To escape from this paradox, the indifference doctrine needs to be qualified by one condition: the alternatives to which it would apply have to be determined with equal degree of specificity. (Kneale, ibid, at 148-50). To satisfy this requirement would, however, be a rather daunting task because there is no test by which equispecificity of the alternatives could be identified a priori. The decision-maker would therefore be driven towards expanding her inquiry and thus obtaining more information. In doing this, she may either fail or succeed. If she fails, application of the indifference doctrine would be epistemically unattractive. If she succeeds, this would build up an entirely new informational setting where:

  • (1)

    (1) reasons may be found for rejecting the equiprobability of the alternatives (e.g., the die was found to be ‘loaded’ rather than ‘fair’); or:

  • (2)

    (2) reasons may be found for upholding the equiprobability of the alternatives (e.g., the die was found to be ‘unloaded’ and ‘fair’).

The indifference doctrine would thus be inapplicable yet again. Satisfaction of the ‘equispecificity-of-the-alternatives’ condition would make it otiose.

Weight also cannot be factored into the probability calculus, e.g., by reducing the probability of a proposition not sufficiently supported by the evidence. This would unwarrantedly increase the probability of this proposition’s negation; unwarrantedly - because scanty evidential support for proposition A does not entail, ipso facto, the existence of massive support for not-A. As demonstrated below, weight and probability are two distinct and important dimensions of judicial fact-finding. They should therefore be kept apart.

114. See Kaye, David H. “The Limits of the Preponderance of the Evidence Standard: Justifiably Naked Statistical Evidence and Multiple Causation” (1982) Am. Bar Foundation Research J. 487.Google Scholar

115. 3Consider, e.g., 100 indictments accusing each of 100 prisoners of murdering a prison guard. The prosecution’s evidence establishes beyond doubt that:

  • (1)

    (1) at the time of the killing there were 100 prisoners in the yard;

  • (2)

    (2) these prisoners were the defendants;

  • (3)

    (3) all but one of the prisoners participated in the killing.

However, there is no evidence personally identifying the defendants as either participating or not participating in the killing.

This example is adapted from Nesson, Charles, “Reasonable Doubt and Permissive Inferences: The Value of Complexity” (1979) 92 Harv. L. Rev. 1187 at 1192–93. According to Professor Nesson,CrossRefGoogle Scholar

[t]he process of criminal adjudication requires something more than a high probability of a defendant’s guilt. A trial is intended to gather all available relevant information bearing on what happened. If, at the conclusion of the evidence, any uncertainty remains about whether the defendant committed the crime, it is unlikely ever to be resolved. It is the function of the jury to produce an acceptable, albeit artificial, resolution of just such conflicts, and by its verdict to put to rest any lingering doubts. If the jury is to discharge this function successfully, the jurors must not only express their beliefs in the defendant’s guilt by their verdict, but also the evidence upon which the jurors deliberated must do more than establish a statistical probability of the defendant’s guilt: it must be sufficiently complex to prevent probabilistic quantification of guilt. Some uncertainty will always be present in criminal cases, but so long as the evidence prevents specific quantification of the degree of that uncertainty, an outside observer has no choice but to defer to the jury’s verdict.

ibid. 1198–99.

In my view, the prosecution’s evidence is not sufficient for conviction not because it is not sufficiently complex and is therefore incapable of preventing an explicit probabilistic quantification of the doubt. This evidence simply does not cover enough ground and its weight is correspondingly low. Its measure is equal in all of our cases, while it is known that one of the prisoners is innocent. Probability of the prosecution’s case is high, but that should not be enough. This point is further explicated in the text.

116. Edmunds etal. (The Popi M) v. Rhesa Shipping Co. [ 1983] 2 Lloyd’s Rep. 235 (Commercial Court); Rhesa Shipping Co. v. Edmunds etal. (The Popi M) [1984] 2 Lloyd’s Rep. 555 (CA); Rhesa Shipping Co. v. Edmunds etal. (The Popi M) (1985) 2 All E.R. 712 (HL).

117. Cf. Allen, Ronald J. “A Reconceptualization of Civil Trials” (1986) 66 Boston U. L. Rev. 401.Google Scholar(supporting this comparative approach).

118. See Zuckerman, Adrian A.S. “Evidence” (1985) 66 All E.R. Annual Review. at 155–56.Google Scholar

119. Rhesa Shipping Co. v. Edmunds etal. (The Popi M) (1985) 2 All E.R. 712 at 716 (HL).

120. See Abraham, Kenneth S. Distributing Risk: Insurance, Legal Theory, and Public Policy (New Haven, CT: Yale University Press, 1986) at 1–2.Google Scholar

121. 637 A.2d 1101 (1994).

122. Under the Bayes theorem, stated in terms of odds,

If a DNA testing shows that

then

would amount to 3496/1 (generating the probability of paternity which equals to 3496/3496+1, i.e., to 0.9997) only when

i.e., when the prior probabilities of guilt and not guilt are equal.

The Supreme Court of Connecticut held that Whether a prior probability of 50 percent is automatically used or whether the jury is instructed to adopt its own prior probability … an assumption is required to be made by the jury before it has heard all of the evidence - that there is a quantifiable probability that the defendant committed the crime. In fact, if the presumption of innocence were factored into Bayes’Theorem, the probability of paternity statistic would be useless. If we assume that the presumption of innocence standard would require the prior probability of guilt to be zero, the probability of paternity in a criminal case would always be zero. …In other words, Bayes’ Theorem can only work if the presumption of innocence disappears from consideration.

Ibid, at 1107–08.

123. This was beyond dispute.

124. See Bentham, supra note 2, vol. I at 39ff; N. Rescher & C.B. Joynt, “Evidence in History and in the Law”(1959) LVI J. of Phil. 561 at 562ff.

125. Other generalizations to be relied upon are related to people's ability to observe events and then memorize and report them.

126. See e.g., Wigmore, supra note 93 at 17–26. In David Schum’s words,

[generalizations and ancillary evidence help us to defend the strength of links in chains of reasoning we construct; [generalizations and ancillary evidence represent the ‘glue’ that holds our arguments together. Naturally, there will be argument about whether we have used either the correct or strong enough ‘glue’ to hold our arguments together.

120. See Schum, David Evidential Foundations of Probabilistic Reasoning, (New York: J. Wiley, 1994) at 82.Google Scholar

127. Wigmore, ibid, at II. Wigmore classified this as “autoptic preference”, arguing that “[b]ringing a knife into court is in strictness not giving evidence of the knife’s existence. It is a mode of enabling the Court to perceive the existence of the knife, and is in that sense a means of producing persuasion, yet it is not giving evidence in the sense that it is asking the Court to perform a process of inference”. Ibid.

128. See Twining, supra note 12, chs. 3 & 4.

129. The term “ampliative induction” is borrowed from Cohen, supra note 96 at 1–4.

130. See Cohen, ibid. $1.

131. Z usually means either X or Y, as prescribed by the controlling burden of persuasion.

132. See,e.g., Nance, Dale “Legal Theory and the Pivotal Role of the Concept of Coercion” (1985) 57 U. Col. L. Rev. 1.Google Scholar

133. Determination of present and future facts may, for example, be needed for assessing the losses expected to be sustained by tort victims.

134. See, DamaŠka, supra note 4, The Faces of Justice and State Authority at 73–80.See also Stein, Alex “Political Analysis of Procedural Law” (1988) 51 Modern Law Rev. 659.CrossRefGoogle Scholar(reviewing Professor DamaŠka’s book)

135. See Rawls, John A Theory of Justice, (Cambridge, MA: Belknap Press of Harvard University Press, 1971) at 238–41.;Google Scholar Waldron, Jeremy “Vagueness in Law and Language: Some Philosophical Issues” (1994) 82 Calif. L. Rev. 509at 536.CrossRefGoogle Scholar

136. These limitations and some of their implications are insightfully discussed by Hart, Henry M. & Mcnaughton, John T. “Evidence and Inference in the Law” in Lerner, D. etal., Evidence and Inference (Chicago: Free Press of Glencoe, 1959) at 48ff.Google ScholarSee also Hart, Henry M. & Perelman, Chaim The Idea of Justice and the Problem of Argument (New York: Humanities Press, 1963) at 98–108.Google Scholar

137. Wigmore, supra note 93 at 955–56.

138. Weinstein, supra note 12 at 241.

139. See, e.g., Schroeder, Christopher H. “Liberalism and the Objective Point of View” (1986) 51 Nomos. 100.at 106–09.Google Scholar

140. Dworkin, Ronald Law–s Empire (Cambridge, MA: Harvard University Press, 1986) at 1.Google ScholarI was able to find a slightly different version: “After now some dozen years of experience I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death”. Learned Hand, supra note 3 at 105.

141. This will draw on Polanyi, Michael The Tacit Dimension (Garden City, NJ: Doubleday, 1966) at 1‒125.Google Scholar

142. Under the “rational factfinder rule”, which applies to appellate review of convictions, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 433 U.S. 307 at 319 (1979). As explained by the Supreme Court, this standard of review— [g]ives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Ibid. See also Lewis v. Jeffers, 497 U.S. 764 at 779–83 (1990); Herrera v. Collins, 113 S.Ct. 853 at 861 (1993); Jeniges v. Milwaukee County Circuit Court, 733 F.2d 1238 at 1241 (7th Cir., 1984) (following State v. Berby, 81 Wis.2d 677 at 686 (1978): “motive is an evidentiary circumstance which may be given as much weight as the fact-finder deems it entitled to”); Detk v. Atkinson, 665 F.2d 90 at 98–100 (6th Cir., 1981) (no room for scrutinizing the actual reasoning process used by the fact-finder); Base Corporation v. Consumers Union of United States Inc., 466 U.S. 485 at 501 note 17(1984) (distinguishing between “ordinary principles of logic and common experience which are ordinarily entrusted to the finder of fact” and “the realm of a legal rule upon which the reviewing court must exercise its own independent judgment”).

This article calls for a full appellate review in matters involving allocation of the risk of error.

143. See Tillers, supra note 90 at 1082; Tillers, Peter “Mapping Inferential Domains” (1986) 66 Boston U. L. Rev. 883 at 936;Google Scholar Wright, Richard W. “Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof; Pruning the Bramble Bush by Clarifying the Concepts” (1988) 73 Iowa L. Rev. 1001 at 1018.Google Scholar

144. I, for one, doubt this, but the ‘tacit knowledge’ thesis does not allow anyone to refute it.

145. Dworkin, supra note 140.

146. As explained in Jonathan Cohen’s recent contributions to jurisprudence and philosophy of action, judges and juries should determine facts through ‘acceptance’ rather than ‘belief. Belief, in his terms, is a passive state of mind, a product of some psychological causality. Beliefs simply dawn upon people, come over them and grow on them. They may thus be held independently of their reflective endorsement. Acceptance, in contrast, is a standard-based treatment of propositions of fact as true, false or probable. This treatment involves reflective encounter with evidence, as well as construction of arguments, both inductive and deductive. Propositions which become‘accepted’ at the end of this process are deemed to be true, false or probable, irrespective of whether they are actually believed or not. In constructing their explanatory and predictive theories, scientists ground their inquiries upon acceptance rather than belief. Judges and jurors should, according to Cohen, do the same. Judicial decisions ought to be justified. Decision-making founded on belief instead of acceptance would never satisfy this demand. Acceptance as a basis of judicial decision is a prerequisite of its justifiability. See Cohen, L. Jonathan “Belief and Acceptance” (1989) 98 Mind 367;Google Scholar Cohen, L. Jonathan “Should a Jury Say What it Believes or What it Accepts?” (1991) 13 Cardozo L. Rev. 465;Google Scholar Cohen, L. Jonathan An Essay on Belief and Acceptance (Oxford: Clarendon Press, 1992) 1–39, 117–25.Google Scholar

147. Cf. Allen, Ronald J. “Structuring Jury Decision-Making in Criminal Cases: A Unified Constitutional Approach to Evidentiary Devices” (1980) 94 Harv. L. Rev. 321.CrossRefGoogle Scholar

148. It will also be assumed that this evidence had undergone all necessary tests.

149. Cohen, supra note 94 at 636–37. This principle holds true also in the adversarial systems of criminal justice.

150. See, e.g., Rescher, N. Hypothetical Reasoning (Amsterdam: North-Holland Publishing, 1964) at 21 ff;Google Scholar Otte, Richard “Indeterminism, Counterfactuals, and Causation” (1987) 54 Phil, of Science 45.CrossRefGoogle Scholar For a revealing collection of articles on this subject see Jackson, Frank Conditionals (Oxford: Blackwell, 1991).Google Scholar

151. Stalnaker, Robert “A Theory of Conditionals” in Jackson, ibid. 28 at 33.Google Scholar

152. Cf. Cohen, L. Jonathan The Dialogue of Reason (Oxford: Clarendon Press, 1986) at 177–83.Google Scholar

153. Cohen, supra note 96 at 109 (“[i]t looks as though weight cannot be measured at all, but only compared or, at best, ranked within a fairly narrow field of comparison.”)

154. When judicial experiences are not homogeneous, they may generate two types of disagreement:

  • (1)

    (1) an epistemically genuine disagreement that cannot be eliminated by rational argument and inquiry. Any such disagreement would indicate that there is no sound informational base upon which the decision concerning the defendant’s guilt or innocence could safely rest. The defendant would thus have to be acquitted;

  • (2)

    (2) a non-genuine disagreement, i.e., a disparity between the views held privately by individual judges, which could be eliminated by rational inquiry. Such disagreements are beyond the scope of a normative (as opposed to sociological, psychological, or otherwise descriptive) theory of adjudication.

Judicial disagreements may emanate from deeper epistemic grounds, such as lack of any consensus about rationality. This should make one skeptical not merely about fact-finding, but, indeed, about the very possibility of maintaining a legal order. This problem is far beyond the limits that could conceivably be set for an evidence law theory. See, however, Graham, supra note 33, in 85 Mich. L. Rev. 1204. According to Professor Graham, evidence theory should play an important role in a community which is sharply divided in its attitudes towards rationality. Its task would be to contribute to a cooperative framework that would prevent any cultural imperialism. Unfortunately, Professor Graham gives no hints as to how exactly to harmonize the incommensurable. See Twining, supra note 31.

155. See Hempel, Carl G. “Deductive-Nomological vs. Statistical Explanation”, in Feigl & Maxwell eds., (1962) 3 Minnesota Stud, in the Phil, of Science at 98ff.Google Scholar

156. Positive objections can be exemplified by a (sadly) typical criminal case where, for unidentified reason, a key prosecution witness failed to testify in court after incriminating the defendant at a grand jury hearing, which provided the prosecution with a statement admissible under FRE 804(b)(1). Scarcity of information characterizing cases like this would result in the availability of at least two clashing generalizations:

  • (1)

    (1) People uninterested in the outcome of investigation usually tell the truth:

  • (2)

    (2) People interested in the outcome of investigation might promote their interests by resorting to falsehood.

The defendant’s objection would thus run as follows:

  • (1)

    (1) He was not given an opportunity to fully cross-examine the witness at his trial:

  • (2)

    (2) Judges have therefore to hypothesize about what could have happened, if he had fully cross-examined this witness;

  • (3)

    (3) If he had fully cross-examined this witness, new information, which could thus be obtained, might have brought his case under the uniformity covered by the exculpating generalization.

I can envisage no sustainable response to this objection.

Hebrew speakers may find more on this issue in Stein, Alex, “Hearsay Statements as Evidence in Criminal Trials: ‘Is’ and ‘Ought’” (1992) 21 Mishpatim (“Laws”, Hebrew University of Jerusalem) 325;Google Scholar and in Stein, Alex, “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 Mechkarey Mishpat (“Legal Research”, Bar-Ilan University) 157.Google Scholar

157. Cf. Lange, Marc “Lawlikeness” (1993) 27 Nous I.Google Scholar

158. Stuart Mill, John A System of Logic Ratiocinative and Inductive 8th ed. (London: Longsman, Green, 1941) at 516 Google Scholar (published as first edition in 1843).

159. See, e.g., Von Wright, supra note 96, ch.4; Cohen, supra note 96, ch. I.

160. See infra PART Vl(c).

161. See supra note 111 and the adjacent text.

162. Winans v. Attorney-General [1904] A.C. 287 at 289.

163. See Ehrenzweig, Albert Psychoanalytic Jurisprudence (Dobbs Ferry, NY: Oceana Publications, 1971) at 278–79Google Scholar (also requiring justification in matters of non liquet factum).

164. As Ehrenzweig rightly mentioned, “a judicial power to speak non liquet factum would too easily lend itself to abuse.” Ehrenzweig, Albert Law: A Personal View (Leyden: Sijthoff, 1977) at 86.Google Scholar

165. Namely, the problems associated with conditionalization of probability judgements.

166. As observed by David Schum,

[inferences can only be probabilistic in nature, and our conclusions have to be hedged in some way… On close examination many apparently simple inferences reveal some remarkably subtle properties that often go unrecognized. Inferences can be decomposed to various levels of ‘granularity’. As we make finer decompositions of an inference, we expose additional and often interesting sources of uncertainty. One trouble we face is that there rarely seems to be any final or ultimate decomposition of an inference. Indeed there may be alternative decompositions, none of which we can label as being uniquely ‘correct’. We are often forced to simplify an inference task by cutting a few corners here and there… Having acknowledged the necessity for simplifying inferences,… it seems advisable to have some awareness and understanding of the evidential subtleties that we may be overlooking or suppressing in the process. In probabilistic inferences what we do not consider can hurt us, often very badly.

Schum, supra note 126 at 2.

167. Schum, ibid.; Kneale, supra note 96 at 226-53 (describing this process as a policy decision-making).

168. See cases discussed in Part V(d).

169. Dworkin, supra note 140 at 71, chs.6–7.

170. Unger, Roberto M. “The Critical Legal Studies Movement” (1983) 96 Harv. L. Rev. 561 at 571.CrossRefGoogle Scholar For an insightful discussion of this ‘truncation problem’ see Altman, Andrew Critical Legal Studies: A Liberal Critique (Princeton, NJ: Princeton University Press, 1990) at 147.Google Scholar

171. Determination of the optimal investment into the accuracy of judicial ascertainment of facts is another important issue that needs to be addressed by law-makers. Not affecting my general thesis, and being too complex to be dealt with parenthetically, this issue will not be discussed. For its discussion from an egalitarian angle see Wertheimer, Alan “The Equalization of Legal Resources” (1988) 17 Phil. & Pubi. Affairs 303.Google Scholar For its economic, utility-oriented, analysis see Kaplow, Louis “The Value of Accuracy in Adjudication: An Economic Analysis” (1994) 23 J. of Legal Studies 307.CrossRefGoogle Scholar

172. See Schauer, Frederick Playing by the Rules (Oxford: Clarendon Press, 1991) at 73–76.Google Scholar

173. For discussion of this highly controversial claim see Kennedy, Duncan “Form and Substance in Private Law Adjudication” (1976) 89 Harv. L. Rev. 1685;CrossRefGoogle Scholar Kelman, Mark A Guide to Critical Legal Studies (Cambridge: Harvard University Press, 1987)Google Scholar ch.l: Schauer, ibid, at 162–66; Kaplow, supra note 53.

174. Kaplow, ibid, at 573.

175. Kaplow, ibid.

176. In re Winship, 397 U.S. 358 (1970); Mullaney v. Wilbur, 421 U.S. 684 (1975).

177. Kaplan, John “Decision Theory and the Factfinding Process” (1968) 20 Stan. L. Rev. 1065 at 1071–72.CrossRefGoogle Scholar

178. Posner, Richard Economic Analysis of Law, 4th ed. (Boston: Little, Brown, 1992) at 553 Google Scholar (linking this probability with deterrence and other utility factors).

179. For most revealing discussions of the intellectual foundations of this doctrine see Williams, Glanville The Proof of Guilt 3d. ed. (London: Stevens, 1963)Google Scholar ch.7; Waldman, Theodore “Origins of the Legal Doctrine of Reasonable Doubt” (1959) 20 J. of the History of Ideas 299;CrossRefGoogle Scholar Fletcher, George “Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases” (1968) 77 Yale L.J. 880;CrossRefGoogle Scholar Shapiro, Barbara “‘To a Moral Certainty’: Theories of Knowledge and Anglo-American Juries 1600–1850” (1986) 38 Hast. L.J. 153;Google Scholar Zuckerman, supra note 68, ch.9.

180. Miller v. Minister of Pensions [1947] 2 All E.R. 372 at 373-74 (Denning, L.J.). An observation similar to this was made in Herrera v. Collins, 113 S.Ct. 853 at 860 ( 1993).

181. Zuckerman, supra note 68 at 134–40. Courts, however, are reluctant to articulate this notion. See Cage v. Louisiana, 498 U.S. 39 at 41 (1990); Diamond, Henry A. “Reasonable Doubt: To Define or Not to Define” (1990) 90 Colum. L. Rev. 1716.CrossRefGoogle Scholar

182 According to Bentham, individuals should be protected from wrongful convictions in order to prevent ‘alarm’ in the public at large. Bentham, supra note 29 at 196–97. He estimated that the disutility generated by apprehension of fear and insecurity outweighs the utility of bringing more criminals to justice. This speculation, however, seems to have reflected Bentham’s personal “[a]lli-tudes and scale of values rather than [a] necessary consequence of a utilitarian analysis”. Twining, supra note 3 at 99. Nowadays most people seem to be more concerned with being protected by rather than/rom the criminal law machinery. See Wertheimer, supra note 76 (justifying conviction of an innocent person on utilitarian grounds) and Stein, supra note 156, in 10 Mechkarey Mishpat 157 (arguing that to adopt Wertheimer’s approach is to step upon a politically disastrous ‘slippery slope’).

Another utilitarian attempt to justify the in dubio pro reo principle moves from the ‘act-utilitarian’ to the ‘rule-utilitarian’ strategy. Arguably, this principle minimizes bare harm in the aggregate. Not directly contributing to utility, each of its individual applications would arguably be justified as ‘part of the system’. This argument has rightly become suspected of pernio principii. i.e., of “[a]rguing backward from the fact that our moral intuitions condemn convicting the innocent to the conclusion that such a disability must be in the long-term utilitarian interests of any society.” Dworkin, Ronald A Matter of Principle (Cambridge, MA: Harvard University Press, 1985) 82ff.Google Scholar

Apart from that, the distinction between rule- and act-utilitarianism can hardly be sustained in the present context. See Dworkin, ibid. See also Lyons, David Forms and Limits of Utilitarianism (Oxford: Clarendon Press, 1965) I82ffCrossRefGoogle Scholar (criticizing this distinction in general).

183. For some support of the utilitarian balancing approach see Stephen, James F. History of the Criminal Law of England vol. 1, (London: Macmillan, 1883) at 438;Google Scholar Cahn, Edmond H. The Moral Decision (Bloomington: Indiana University Press, 1955) at 296.Google Scholar

184. Dworkin, supra note 182 at 82ff. See also Tribe, Laurence H. “An Ounce of Detention: Preventive Justice in the World of John Mitchell” (1970) 56 Va. L. Rev. 371 at 386.CrossRefGoogle Scholar

185. I assume that the criminal justice system operates under limited resources, so that greater investment could eliminate more judicial errors. This assumption does not undermine the moral harm rationale. Public resources are scarce, and there is no overriding moral imperative which demands that they should be channelled into criminal proceedings rather than into health, education, highways and other amenities. Citizens benefiting from those amenities may occasionally be harmed by the underfunded criminal justice system. Such an outcome, as regrettable as may be, would be morally indistinguishable from a traffic accident resulting from a poor investment in the road safety. If the process of allocating public resources were politically fair, no person can blame the state for being denied equal treatment when the system accidentally works to her detriment. See Dworkin, supra note 182 at 84–87.

This, however, should not foster complacency, as the distinction between ‘injustice’ and ‘mis-fortune’ often does. Victims of accidents should not be left on their own just because they have nobody to blame. See Shklar, Judith The Faces of Injustice (New Haven, CT: Yale University Press, 1988) at 51–82.Google Scholar See also Note, “The Luck of the Law: Allusions to Fortuity in Legal Discourse” (1989) 102 Harv. L. Rev. 1862 (an insightful article showing that ‘luck’ is a value-laden notion).

186. Dworkin, supra note 140, chs.6–7.

187. See FRE 801. For a broader definition, adopted in England, see Wright v. Doe d. Tatham (1837) 7 A&E 313; R v. Kearley [1992] 2 All E.R. 345. On similar grounds, testimony given in-chief should normally not be used as evidence, if the witness abstained from answering questions at her cross-examination. See, e.g., Douglas v. Alabama, 380 U.S. 415 (1965).

188. Swift, Eleanor “A Foundation Fact Approach to Hearsay” (1987) 75 Calif. L. Rev. 1339.CrossRefGoogle Scholar

189. Swift, ibid, at 1356–61.

190. Although in a rather restricted form, this standard is already known as one of the alternative routes of passing constitutional muster under the Confrontation Clause. See California v. Green, 399 U.S. 149(1970).

In my view, hearsay exceptions not satisfying this standard should be regarded as unconstitutional, regardless of whether they are “firmly rooted” or distinctive of “indicia of reliability” (the constitutionality standards set as alternatives in Ohio v. Roberls, 448 U.S. 56 ( 1980); Idaho v. Wright, 110 S.Ct. 3139(1990); While v. Illinois, 112S.Q. 736 (1992)). For criticism of the constitutionality-of-hearsay doctrine see Jonakait, supra note 62; Margaret Berger, “The Deconstitutionalization of the Confrontation Clause: A Proposal for a Prosecutorial Restraint Model” (1992) 76 Minn. L. Rev. 557. See also Nesson & Benkler, supra note 70.

191. Cf. R v. Blaslland [1985] 2 All E.R. 1095 (HL) (excluding a third-party inculpatory admission); Chambers v. Mississippi, 410 U.S. 284 (1973) (third-party admissions admissible only for impeachment purposes). Chambers may, however, be construed more broadly, as opening the gates for defence hearsay on constitutional grounds. See McCormick, supra note 15, vol. I at 129; Imwinkelried, Edward J. “The Constitutionalization of Hearsay: The Extent to Which the Fifth and Sixth Amendments Permit or Require the Liberalization of the Hearsay Rules” (1992) 76 Minn. L. Rev. 521 at 542–48.Google Scholar

192. Guest, Stephen “Hearsay Revisited” (1988) 41 Current Leg. Problems 33.CrossRefGoogle Scholar

193. See FRE 801 and the Advisory Committee’s notes accompanying this rule.

194. This and related problems are insightfully discussed in Seligman, Eustace “An Exception to the Hearsay Rule” (1912) 26 Harv. L. Rev. 146; Finman, Ted “Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence” (1962) 14 Stan. L. Rev. 682;CrossRefGoogle Scholar Morgan, Edmund “Hearsay Dangers and the Application of the Hearsay Concept” (1948) 62 Harv. L. Rev. 177:CrossRefGoogle Scholar Tribe, Lawrence “Triangulating Hearsay” (1974) 87 Harv. L. Rev. 957;CrossRefGoogle Scholar Graham, Michael ‘“Stickperson Hearsay’: A Simplified Approach to Understanding the Rule Against Hearsay” (1982) U. III. L. Rev. 887;Google Scholar Wellborn, Olin Guy III, “The Definition of Hearsay in the Federal Rules of Evidence” (1982) 61 Tex. L. Rev. 49; Guest, supra note 192;Google Scholar Williams, CR. “Issues at the Penumbra of Hearsay” (1987) 2 Adelaide L. Rev. 113;Google Scholar Callen, , Craig R. “Hearsay and Informal Reasoning” (1994) 47 Vand. L. Rev. 43.Google Scholar See also “Symposium on Hearsay and Implied Assertions“ (1995) 16 Miss. College L. Rev. 1–213.

195 See FRE 404; Mueller & Kirkpatrick, supra note 63 at 216–26; Zuckerman, supra note 68, ch. 12.

196 See Mueller & Kirkpatrick, ibid, at 218. New FRE 413, 414,415 run against this approach.

197 FRE 404(b). McCormick, supra note 15, vol. 1 at 798–808; Mueller & Kirkpatrick. supra note 63 at 273–84.

198 See the majority view in United Slates v. Abel, 707 F.2d 1013 at 1016 (9th Cir., 1983), later rejected in United States v. Abel, 469 U.S. 45 (1984). Character-based impeachment of the defendant and his witnesses, presently allowed under FRE 608 and 609, should be confined to situations described in the text. Cf. Friedman, Richard, “Character Impeachment Evidence: Psycho-Bayesian [!?] Analysis and a Proposed Overhaul” (1991) 38 U.C.L.A. L. Rev. 637 (advocating an almost identical approach).Google Scholar

199 See Criminal Evidence Act, 1898, s. I; Zuckerman, supra note 68 at 250–83.

200 Perceiving his trial tactics as uncertain in the eyes of his co-defendant, each defendant will take his co-defendant as anticipating and planning to react to the worst. Typically designed by lawyers, this mutual anticipation triggers mud-slinging tactics. Note that attorneys’ cooperation in such cases is also severely restricted by the rules of professional ethics.

201. Zuckerman, supra note 68 at 280–81.

202. See FRE 403; its English equivalent, s.78 of the Police and Criminal Evidence Act Act, 1984; and the latter’s insightful explanation by Dennis, supra note 68.

203. Zuckerman, supra note 68 at 283. This solution has been rejected by English courts. As explained by Lord Justice Lawton,

[i]n the majority of cases where men are charged jointly, it is clearly in the interests of justice and the ascertainment of the truth that all the men so charged should be tried together.

R v. Hoggins [1967] 3 All E.R. 334 at 336. See also R v. Varley [1982] 2 All E.R. 519 at 522.

204. Frye v. United States 293 F. 1013 (1923)

205. See Giannelly, Paul C. “The Admissibility of Novel Scientific Evidence. Frye v. United States: A Half-Century Later” (1980) 80 Colum. L. Rev. 1197 CrossRefGoogle Scholar

206. Dauberl v. Merrell Dow Pharmaceuticals Inc., 113 S.Ct. 2786 (1993).

207. The Supreme Court had seemingly adjudicated the notorious Popper-Kuhn controversy in the philosophy of science favorably to Karl Popper. See, ibid. 2796–97.

208. Ibid. at 2797. For a revealing critique of Daubert see Allen, Ronald J. “Expertise and the Dauberi Decision” (1994) 84 J. Crim. L. & Criminology 1157;Google Scholar Farrell, Margaret G. “ Daubert v. Merrell Dow Pharmaceuticals Inc.: Epistemology and Legal Process” (1994) 15 Cardozo L. Rev. 2183.Google Scholar

209. See Zuckerman, supra note 68 at 62–69.

210. Because judges are both institutionally and de facto incompetent to resolve scientific controversies, they can only defer to experts. See Allen, supra note 208; Zuckerman, supra note 68 at 63–64.

211. For another skeptical view concerning the applicability of Daubert to evidence incriminating the defendant see Berger, Margaret A. “Procedural Paradigms for Applying the Daubert Test” (1994) 78 Minn. L. Rev. 1345 at 1352–63.Google Scholar Unlike myself, Professor Berger stops short of arguing that Frye should be reinstated for this limited (but evidently important) purpose.

212. A principle embedded, for example, in the authentication and ‘best evidence’ provisions made in FRE, articles IX and X.

213. See Nance, supra note 47; Cf Seigel, Michael L. “Rationalizing Hearsay: A Proposal for a Best Evidence Hearsay Rule” (1992) 72 Boston U. L. Rev. 893 Google Scholar (a more radical proposal to replace the hearsay rules by a broad best evidence principle).

214. For obvious reasons, the diligence standard, to be applied in assessing litigants’ efforts to secure attendance of witnesses, should be far more demanding in the prosecutions’ case. See, e.g., Barber v.Page, 390 U.S. 719 (1968).

215. This requirement is conditioned upon the existence of legal mechanisms preventing frivolous prosecutions. Defendants should also be provided with effective legal assistance.

216. The defendant’s privilege against self-incrimination would still apply at police interrogation and other pre-trial stages.

217. See supra note 45.

218. This would require abolition of Griffin v. California 380 U.S. 609 (1965). Further adjustments that would be required relate to the current impeachment practices. Currently, a defendant taking the stand may be impeached by evidence obtained from her in violation of the Fourth or Fifth Amendment. See Walder v. United States, 347 U.S. 62 (1954); Harris v. New York, 401 U.S. 222 (1971); United States v. Havens, 446 U.S. 620 (1980). The new incentive to testify may thus become detrimental to the exclusionary policy (as can be learnt from James v. Illinois, 493 U.S. 307 (1990), which set an important limitation to the Walder-Harris doctrine by refusing to extend its application to witnesses other than the defendant). The Walder-Harris doctrine would therefore have to be abolished. The possibilities of impeaching the defendant by her prior convictions should also be limited, as suggested earlier in the text.

219. Provided that the defendant’s actions against the witness have been proven beyond reasonable doubt (as required, e.g., in England, in R v. Tower Bridge Magistrates’ Court, Ex parte Lawlor, 92 Cr. App. Rep. 98 at 104(1991).) In the US, admissibility conditions can be proven by a mere preponderance of the evidence: Bourjaily v. United States 483 U.S. 171 (1987); Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 at 2796 note 10 (1993). Generally adequate, this rule should thus become more differentiated.

My proposal largely corresponds to Richard Friedman, “Confrontation and the Definition of Chutzpa” forthcoming in (1997) 31 Israel L. Rev. (except for the standard of proof requirement, which, on Friedman’s account, should be considerably less demanding).

220. See McCormick, supra note 15, vol.1 at 555–64 (corroboration generally required for confessions); Pattenden, Rosemary “Loss of Innocence: Eyewitness Identification and Proof of Guilt” (1987) 16 J. of Legal Studies 395;Google Scholar J. Arthur, Alacron “Suspect Evidence: Admissibility of Co-Conspirator Statements and Uncorroborated Accomplice Testimony” (1992) 25 Loyola L.A. L. Rev. 953.Google Scholar

221. See Davies v. DPP [1954] 1 All E.R. 507 (England: mandatory corroboration warning of the jury in regard to accomplice testimony); R v. Turnbull [1976] 3 All E.R. 549 (England: discretionary corroboration warning of the jury in regard to identification evidence); Zuckerman, supra note 68 at 154–59 and 176–78. The mandatory corroboration warning requirement in relation to accomplice testimony has recently been repealed by s. 32( 1) of the Criminal Justice and Public Order Act, 1994. English judges may, however, continue to administer similar warnings as a matter of discretion. See Birch, Diane “Corroboration: Goodbye to All That?” (1995) Crim. L. Rev. 524.Google Scholar

222. To use this burden for other purposes (such as extraction of evidence or confirmation of the regular course of events) would be both unfair and economically inefficient. See Alex, Stein “Allocating the Burden of Proof in Sales Litigation: The Law, Its Rationale, A New Theory, and Its Failure” (1996) 50 U. Miami L. Rev. 335.Google Scholar

223. My following discussion draws on Kaplan, supra note 177; Kaye, supra note 114 Orloff, Neil & Stedinger, Jery “A Framework for Evaluating the Preponderance-of-the-Evidence Standard” (1983) 131 U. Penn. L. Rev. 1159;CrossRefGoogle ScholarPosner, supra note 178, §21.2.

224. The same result can be reached by using John Kaplan’s formula (invoked in my discussion of the criminal standard of proof): and by subsequently postulating that plaintiffs’

and defendants’ losses should be treated as equally harmful: Dp=Dd.

225. As observed, e.g., by Winter, Ralph “The Jury and the Risk of Non-Persuasion” (1971) 5 Law & Soc. Rev. 335 at 337.Google Scholar

226. This has always been the position of the Jewish law. According to one of its famous precepts, ‘one who attempts to take from his fellow should bear the burden of proof’. Talmud, Babylonian Bava Kamina (Brooklyn: Tanna v’Rav Publications, 1988) at 6a; 46a-b.Google Scholar

227. Posner, supra note 178 at 552.

228. This is a fairly standard assumption. See, e.g., Shavell, Steven “Suit. Settlement, and Trial: A Theoretical Analysis under Alternative Methods for the Allocation of Legal Costs” (1982) 11 J. of Legal Studies 55 at 61 note 25.CrossRefGoogle Scholar

229. This total amount is arrived at simply by substituting p2 with (l-p1).

230. See Orloff and Stedinger, supra note 223.

231. For examination of this trait see Dworkin, supra note 182 at 125–27.

232. Those who believe that law irremediably suffers from radical indeterminacy would not regard this outcome as a disutility. This article rests upon different jurisprudential assumptions about adjudication, close to those espoused by Ronald Dworkin. See Dworkin, supra note 140. My qualified endorsement of these assumptions can be found in Stein, Alex “Defending Liberal Law” (1993) 22 Anglo-Am. L. Rev. 194.Google Scholar

233. Such cases typically involve:

  • (1)

    (1) deprivation of basic individual rights;

  • (2)

    (2) allegations of fraud and other seriously stigmatizing allegations;

  • (3)

    (3) oral claims contradicting written agreements or wills, and some other disfavored allegations. See, e.g.. Addington v. Texas, 441 U.S. 418 (1979) (involuntary commitment to a mental insti-tution); Santosky v. Kramer, 455 U.S. 745 (1982) (termination of parental rights); Schneiderman v. United Stales, 320 U.S. 118 (1943); Woodby v. INS, 385 U.S. 276 (1966) (denaturalization and deportation); Gertz, v. Robert Welch Inc., 418 U.S. 323 ( 1974) (defamation); and further cases listed in McCormick, supra note 15, vol. II at 443–44.

234. See McCormick, supra note 15, vol.11 at 427–32. Another example can be found in the Uniform Commercial Code, §§ 1–201(8), 2–607(4). The persuasion burden in regard to ‘conformity’ of the tendered goods is placed by these provisions on the seller of rejected goods and on the buyer of accepted goods. This allocation of the risk of error can be justified by the principle of equality, as both plaintiffs and defendants will be exposed to this risk in a roughly equal fashion. For another rationale see Kraus, Jody S. “Decoupling Sales Law from the Acceptance-Rejection Fulcrum” (1994) 104 Yale L.J. 129 at 135–52CrossRefGoogle Scholar(the persuasion burden shouldered by a party with the best access to evidence). I find this explanation implausible. See Stein, supra note 222.

235. See Stein, supra note 81, 28 Coexistence 133 (explaining the reasons behind this allocation of the burden; the same logic applies, mutatis mutandis, in civil trials)

236. Nance, Dale A. “Civility and the Burden of Proof” (1994) 17 Harv. J. of L. & Publ. Pol. 647.Google Scholar

237. McCormick, supra note 15, vol.II at 432.

238. Nance, supra note 236 at 661–72.

239. Stein, supra note 81, 28 Coexistence 133.

240. For an illuminating discussion of this factor see Ullmann-Margalit, Edna “On Presumption” (1983) 80 J. of Phil. 143.CrossRefGoogle Scholar

241. See, e.g., Brook, James “Inevitable Errors: The Preponderance of the Evidence Standard in Civil Litigation” (1982) 18 Tulsa L.J. 79 at 85;Google Scholar Allen, Ronald J. “Burdens of Proof, Uncertainty and Ambiguity in Modern Legal Discourse” (1994) 17 Harv. J. of L. & Publ. Pol. 627 at 634.Google Scholar

This justification should clearly be distinguished from the idea of equalizing the overall error rate between plaintiffs and defendants as groups. See Finkelstein, Michael Quantitative Methods in Law (New York: Free Press, 1978) at 68.Google Scholar Finkelstein’s idea is untenable because members of his ‘groups’ are not mutually associated and do not share their gains and losses. See Kaye, David H. “Naked Statistical Evidence” (1980) 89 Yale L.J. 601 at 607–08.CrossRefGoogle Scholar

242. Arguably, equality in risk-allocation would be greater under the ‘expected value rule’ (which, as explained above, also minimizes large losses). This argument, even if correct, cannot detract from the explanatory power of the equality principle, as presented in the text. The ‘all-or-nothing’ resolution of legal controversies is prescribed by the substantive law. Evidence law is, after all, inherently adjective. This critical argument may, however, support the description of the existing burden-of-persuasion practices as oscillating between utility and equality. This admittedly possible description may have only few significant implications on my following discussion. 1 therefore decided not to probe its validity.

243. See, e.g., FRE 403 (exclusion of preponderantly prejudicial evidence in general); FRE 409 (payment of medical and associated expenses occasioned by an injury is not admissible to prove liability for the injury); FRE 411 (evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongly).

244. See Nance, supra note 47 (advocating this principle on the grounds of epistemic rationality).

245. Nance, supra note 47 at 244ff; Nance, Dale A. “Missing Evidence” (1991) 13 Cardozo L. Rev. 831 at 866.Google Scholar

246. See, e.g., FRE 613(b).

247. Cf. Ayres & Gertner, supra note 59 (discussing this and proposing a competing rationale for default rules in the contract law area).

248. See Farnsworth, supra note 9.

249. Cf. Imwinkelried, Edward J. “The Worst Evidence Principle: The Best Hypothesis as to the Logical Structure of Evidence Law” (1992) 46 U. Miami. L. Rev. 1069 (evidence rules as seeking primarily to eliminate perjury).Google Scholar

250. For support of this idea see McCormick, supra note 15, vol. I at 70–72. See also Farrell, Margaret G. “Coping with Scientific Evidence: The Use of Special Masters” (1994) 43 Emory L.J. 927.Google Scholar

251. This brief discussion is associated with my larger project, “Liability for Uncertainty: Building Up an Evidential Damage Doctrine”, undertaken jointly with Dr. Ariel Porat (of Tel-Aviv University Faculty of Law).

252. See Nance, supra note 245; Solum, L. & Marzen, S. “Truth and Uncertainty: Legal Control of the Destruction of Evidence” (1987) 36 Emory L.J. 1085.Google Scholar

253. See Gorelick, Jamie S., Marzen, Stephen & Solum, Lawrence Destruction of Evidence (New York: Wiley Law Publications, 1989) at 40.Google Scholar An independent tort action should, however, be available to the afflicted party, as contended in “Liability for Uncertainty”, supra note 251.

254. Gorelick, Marzen & Solum, ibid. at 41 –42, provide a qualified support to this claim.

255. Summers v. Tice, 199 P.2d 1 (1948).

256. Ibid. at 4 (emphasis is mine, A.S.). For an illuminating discussion of this case and related issues (which does not, however, explore the idea of ‘evidential damage’) see Thomson, Judith J. Rights, Restitution, and Risk: Essays in Moral Theory, Parent, William ed. (Cambridge. MA: Harvard University Press, 1986) chs.12 & 13.Google Scholar

257. See Restatement of the Law (Second), Torts 2d (St. Paul, MN: American Law Institute Publishers. 1965) §433B.

258. Haft v. Lone Palm Hotel, 478 P.2d 465 (1970).

259. Ibid. 474–75. See also Hall v. E.I. Du Pont de Nemours & Co., Inc., 345 F.Supp. 353 at 378–79 (1972); Azure v. City of Billings, 596 P.2d 460 at 470–71 (1979); Allen v. United States, 588 F.Supp. 247 at 412–13 (1984); In re ‘Agent Orange’ Product Liability Litigation, 597 F.Supp. 740 at 828 (1984); Clemente v. State of California, 707 P.2d 818 at 828 (1985); Dickerson. Inc. v. Holloway, 685 F.Supp. 1555 at 1569 (1987); Price Waterhouse v. Hopkins, 490 U.S. 228 at 263–73 (1989) (O’Connor, J., concurring in judgment) (the same principle relied upon in different contexts).

260. McCormick, , supra note 15, vol. 1 at 250.Google Scholar

261. These are listed and discussed in 21 A.L.R. 2d 1013–43.