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Theories of Evidence: Bentham and Wigmore. By William L. Twining. [Weidenfeld & Nicolson, London, 1985, 265 pp., softbound; available also in hardbound].

Published online by Cambridge University Press:  16 February 2016

Alex Stein
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Israel Law Review , Volume 22 , Issue 2 , Summer–Autumn 1987 , pp. 245 - 276
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1987

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References

In writing this review I have benefited from the encouragement, comments and suggestions of Prof. E. Harnon, and I am grateful to him for all of these.

1 Twining, W.: (a) “Goodbye to Lewis Eliot” (1980) 15 J.S.P.T.L. 2Google Scholar; (b) “Taking Facts Seriously”, in Essays on Legal Education (Gold, N., ed., Toronto, 1982) 51Google Scholar; (c) “The Rationalist Tradition of Evidence Scholarship”, in Well and Truly Tried (Campbell, E. & Waller, L. ed., Sydney, 1982) 211Google Scholar; (d) “Rule-Scepticism and Fact-Scepticism in Bentham's Theory of Evidence”, in Facts in Law, Proceedings, Association for Legal and Social Philosophy, ARSP Series No. 16, Twining, W., ed. (Steiner, Wiesbaden, 1983) 65Google Scholar; (e) “Evidence and Legal Theory” (1984) 47 Mod. L.R. 261 and in Legal Theory and Common Law (Twining, W. ed., Oxford, 1986) 62Google Scholar; (f) “Some Scepticism about Some Scepticisms” (1984) 11 Brit. J. Law & Society 137, 285.

2 See, for example, Nethanyahu, S., “About the Developments in the Fields of Professional Privileges” in Sefer Sussmann, Essays in Memory of Justice Yoel Sussmann (Jerusalem, 1984, in Hebrew) 297, at 305.Google Scholar

3 Supra n. 1(e), at 263–264.

4 See, for example, Harnon, E., Law of Evidence, Part 2 (Jerusalem, 1977, in Hebrew) 143–152Google Scholar (discussing the Rule against Hearsay).

5 See, for example, State of Israel v. Silverman's Estate (1983) 37(iv) P.D. 281, at 287; State of Israel v. Tubul and Itach (1985) 39(iii) P.D. 536, at 608.

6 “A Proposed Evidence Act” (1981) 34 HaPraklit 137; “Symposium on the Proposed New Evidence Law” (1986) 16 Mishpatim 3; on this subject see Harnon, E., “A New Draft of an Evidence Code: Are Revolutionary Changes Desirable?” (1983) 18 Is.L.R. 99.Google Scholar

7 Wigmore, J.H., A Treatise on the Anglo-American System of Evidence in Trials at Common Law, Vol. 1 (Tillers, P. rev., Boston, 1983) para. 8–8cGoogle Scholar; Cf. Jackson, J.D., “Wigmore Refurbished?” (1985) 48 Mod. L.R. 601, at 602.Google Scholar

8 Supra, n. 1(c).

9 Wigmore, J.H., A Treatise on the Anglo-American System of Evidence in Trials at Common Law (Boston, 3rd revised ed., 1940).Google Scholar

10 (a) (Boston, 1 st ed., 1913); (b) (Boston, 2nd ed., 1931); (c) The Science of Judicial Proof (Boston, 3rd ed., 1937). A less known book of Wigmore's, J.H. is A Student Textbook of the Law of Evidence (Brooklyn, 1935).Google Scholar

11 Wigmore, supra n. 10(b), at 5.

12 Ibid, at 3.

13 Ibid.

14 The classical examples of this kind of literature are Cross, R., On Evidence (London, 5th ed., 1979)Google Scholar; McCormick, , On Evidence (St. Paul, Minn., 3rd ed. by Cleary, E.W., 1984)Google Scholar; and, of course, J.H. Wigmore's Treatise, supra n. 9.

15 Supra n. 1(b).

16 Wigmore, supra n. 10(b), at 48.

17 On the “holistic” conception of judicial proof see Abu-Hareira, M., “An Early Holistic Conception of Judicial Fact-Finding” (1986) Juridical Review 79.Google Scholar On the “narrative coherence” as a justification of findings of fact see MacCormick, N.D., “Coherence in Legal Justification”, in Theorie der Normen (Krawietz, W. et al. , eds., Berlin, 1984).Google Scholar

18 Evidence Ordinance (New Version), 1971, 2 L.S.I. [N.V.] 198.

19 Sec. 54 requires the giving of reasons when the decision reached is based on the evidence of a single witness, in those circumstances laid down in the section. See Harnon, supra n. 4, at 5–7. The provisions of sec. 54A of the Evidence Ordinance (Amendment No. 6) Law, 1982 (36 L.S.I. 208) require that a decision on facts based upon the testimony of the victim in a sexual offence be reasoned; this being a condition of the conviction of a person with that offence on the basis of that testimony alone. This is also the case when the court bases its factual findings on a statement given outside of court, when that statement is admitted by virtue of sec. 10A of the Evidence Ordinance (Amendment No. 4) Law, 1980 (34 L.S.I. 13), as stated at the end of sec. 10A(c).

20 On this rule in general see, Kremnitzer, M., “Criteria for Fact-Findings and Intervention of Court of Appeal in Findings Relating to Credibility of Witnesses” (1983) 35 HaPraklit 407.Google Scholar

21 See supra n. 1(b).

22 Wigmore, supra n. 10(b), at 5.

23 Ibid., at 955.

24 Ibid., at 955–956.

25 Ibid., at 958.

26 Alon v. The Government of Israel (1982) 36(iv) P.D. 449, at 461–475.

27 Wigmore, supra n. 10(b), at 959–960, and see the book under review, at 157–158.

28 Bentham, J., Judicial Evidence (Dumont, M., ed., London, 1825) 2.Google Scholar

29 Ibid., at 226ff.

30 Supra n. 1(d), at 75.

31 Bentham, supra n. 28, at 6–7.

32 Ibid.

33 Ibid., at 240–245.

34 Ibid., at 238–239.

35 Ibid., at 246–247.

36 See also supra n. 1(c),(d),(f).

37 This assumption can be doubted: see Frank, J., Courts on Trial (Princeton, 1949)Google Scholar; regarding W. Twining's view of J. Frank's realism, see supra n. 1(f), at 157ff.

38 Cf. Cohen, L.J., “Freedom of Proof”, in Facts in Law, Proceedings, Association for Legal and Social Philosophy, ARSP Series No. 16, Twining, W., ed. (Steiner, Wiesbaden, 1983) 1.Google Scholar

39 Ibid., at 2.

40 Ibid.

41 According to Prof. H. Hart's famous distinction between the “core” and the “penumbra” of the legal norm, Hart, H., “Positivism and the Separation of Law and Morals” (1957) 71 Harv. L.R. 593.CrossRefGoogle Scholar

42 Cf. Dworkin, R.H., “Principle, Policy, Procedure”, in Crime, Proof and Punishment, Essays in Memory of Sir Rupert Cross (Tapper, C.F.H. ed., London, 1981) 193Google Scholar; subsequently published in Dworkin, , A Matter of Principle (Oxford, 1985) 72–103.Google Scholar

43 On the general discussion on absolute rights, see Lahav, P. & Kretzmer, D., “A Bill of Rights for Israel: A Step Forward?” (1976) 7 Mishpatim 154Google Scholar; Shiloh, S., “On ‘Absolute’ Rights in the Human and Civil Rights: Basic Law Bill” (1977) 7 Mishpatim 539Google Scholar; Lahav, P. & Kretzmer, D., “Who's Afraid of ‘Absolute’ Rights? – A Reply to Dr. Shiloh” (1977) 7 Mishpatim 541.Google Scholar

44 Wigmore, supra n. 10(b), at 961–963.

45 Another policy of granting rights can be based on the theory of “process values”, which has been advanced, arguing that values such as fairness, dignity and participation ought to be impregnated into legal procedure independently of their effect on the accuracy of outcomes. See Summers, R.S., “Evaluating and Improving Legal Process – A Plea for ‘Process Values’” (1974) 60 Corn. L.R. 1.Google Scholar According to this approach, resultoriented procedural efficiency is not a sole determinant of procedural quality, and procedural arrangements might be understood not merely instrumentally, justifying procedures because they increase the accuracy of the substantive judgments, but also intrinsically, as something to which people are entitled within the official process by which their affairs can be affected. For the subsequent discussion of the “process values” see Bayles, M.D., Principles of Law (Dordrecht, 1987) at 18–75.CrossRefGoogle Scholar

46 R. Dworkin, supra n. 42.

47 Note, “The Theoretical Foundation of the Hearsay Rules” (1980) 93 Harv. L.R. 1786.

48 Ibid., at 1787–1789.

49 Ibid., at 1789–1793.

50 This argument was discussed by the present reviewer in his LL.M. thesis “The Rule against Hearsay in Criminal Proceedings and the Possibility of its Abolition”, which was written under the supervision of Prof. E. Harnon. This work is available at the Faculty of Law, The Hebrew University of Jerusalem.

51 As stated by Wigmore, supra n. 10(b), at 970: “…the hearsay rule, in truth, is not only the pride of the Anglo-American system of evidence; it is even the triumph of harmony between the data of science and the empiric trial rules”.

52 Cf. the 6th Amendment of the U.S. Constitution known as a “Confrontation Clause”; California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2nd 489 (1970); Wigmore, supra n. 9, vol. 5, para. 1395–1400; McCormick, supra n. 14, at 749–753.

53 Cf. Zuckerman, A.A.S., “Privilege and Public Interest”, in Crime, Proof and Punishment, Essays in Memory of Sir Rupert Cross (Tapper, C.F.H. ed., London, 1981) 248.Google Scholar

54 See sec. 10A of the Evidence Ordinance (Amendment No. 4) Law, 1980 and cf. rule 801(d) of the Federal Rules of Evidence of the United States.

55 See, for example, Huli v. State of Israel (1981) 35(iii) P.D. 477; Cohen v. State of Israel (1981) 35(iii) P.D. 94.

56 California v. Green, supra n. 52.

57 On this subject see: Packer, H.L., “Two Models of the Criminal Process” (1964) 113 U. Pa.L.R. 1CrossRefGoogle Scholar; Llewellyn, K.N., Jurisprudence (Chicago, 1962) 439ff.Google Scholar; Griffith, , “Ideology in Criminal Procedure or a Third ‘Model’ of the Criminal Process” (1970) 79 Yale L.J. 359CrossRefGoogle Scholar; Damaska, M., “Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study” (1973) 121 U.Pa.L.R. 506CrossRefGoogle Scholar; see also Ratushny, E., Self Incrimination in Canadian Criminal Process (Toronto, 1978) 1–50.Google Scholar

58 Bentham, supra n. 28, at 238.

59 Ibid., at 246.

60 Ibid., at 241.

61 Keeton, G.W. & Marshall, O.R., “Bentham's Influence on the Law of Evidence” in J. Bentham and the Law (Keeton, G.W. & Schwarzenberger, G. eds., London, 1948) 79, at 95.Google Scholar

62 Bentham, supra n. 28, at 237. Emphasis added.

63 Trusov, A., An Introduction to the Theory of Evidence (Moscow, 1963) 152–153Google Scholar; See also Vishinsky, A., Teoria Sudebnich Dokazatelstv v Sovietskom Prave (The Theory of Judicial Evidence in the Soviet Law) (Moscow, 1950) 124Google Scholar; Belkin, R.S. et al. , Teoria Dokazatelstv v Sovietskom Ugolovnom Processe (The Theory of Proof in the Soviet Criminal Process) (Moscow, 2nd ed., 1973) 90–112.Google Scholar

64 A. Trusov, ibid., at 9–22.

65 In this context the growth of interest in the integration of theories of probability in the field of proof in adjudication and the current “probability debate” are especially notable: see Eggleston, R., Evidence, Proof and Probability (London, 2nd ed., 1983)Google Scholar; Cohen, L.J., The Probable and the Provable (Oxford, 1977)CrossRefGoogle Scholar; “Symposium: Probability and Inference in the Law of Evidence” (1986) 66 Bost. U.L.R. nn. 3 & 4.

66 As mentioned by another reviewer of the book, Jackson, J.D., “Book Review” (1987) 38 North. Ir. Leg. Q. 98, at 100Google Scholar:

The truth is not out there waiting to be picked up; it has to be constructed by a procedure that is sought best to lead to the most accurate construction, bearing in mind the subject of inquiry, the kind of truth that have to be investigated, the degree of certainty that is required and the general goals of the whole enterprise. If in the context of adjudication there are no rules on how triers of fact should operate, there will be no guarantee that these goals will be furthered, and one of the goals of any rational system of justice, that of consistent decision-making, will certainly not be furthered.