The fate of evidence law: Two paths of development

AuthorZhuhao Wang
Date01 July 2020
Published date01 July 2020
DOI10.1177/1365712720930797
Subject MatterArticles
EPJ930797 329..348 Article
The International Journal of
Evidence & Proof
The fate of evidence law:
2020, Vol. 24(3) 329–348
ª The Author(s) 2020
Two paths of development
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DOI: 10.1177/1365712720930797
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Zhuhao Wang
China University of Political Science and Law, Beijing, China
Abstract
Evidence law was famously deemed ‘the child of the jury’, its development widely perceived as a
by-product of the jury trial. Conventional wisdom tells us that juries, because of their cognitive
and epistemic failings, can hardly be trusted and thus need rules of evidence to steer them in the
right direction. Therefore, given that jury trials are vanishing in the United States and other
common law countries, we must question whether the traditional evidence-law model is sus-
tainable. At the same time that juries have been on the decline, rapid developments in science
and technology have led to new forms of evidence, including scientific evidence, electronic
evidence and process-based evidence. Presenting these new types of evidence at trials, how-
ever, often creates a mismatch with the traditional evidence-law framework. A systematic
redesign of 21st-century evidence law to better accommodate the intensified interplay between
science, technology and the law seems to be the next natural development. This essay explores
these two distinct paths of evidence law—the old, jury-driven model and a new, science-
directed model—and argues for preserving the old path while at the same time spending
more resources and making greater effort to accommodate these new forms of evidence.
Keywords
Evidence law, juries, new forms of evidence, science and technology
Introduction
As a Chinese scholar working on foundational research for China’s emerging legislative efforts on
evidentiary rules, I have been studying the origins and development of evidence law in other countries,
with the hope of learning important ideas that can inform China’s elementary reform. The well-
developed, proven system of American evidence law, with its sophistication and conceptual clarity,
naturally caught my eye as an important reference. Over the years, I have benefited tremendously from
learning many conceptual advances and wisdom embedded in American evidence law, while becoming a
loyal fan of it. Nonetheless, three interrelated questions have repeatedly bothered me:
Corresponding author:
Zhuhao Wang, Institute of Evidence Law and Forensic Science, China University of Political Science and Law, 25 Xitucheng Road,
Haidian District, Beijing 100088, China.
E-mail: wangzhuhao@cupl.edu.cn.

330
The International Journal of Evidence & Proof 24(3)
a.
Can and should evidence law somehow stay robust, even as jury trials vanish?
b.
Can and should evidence law be made to apply in most dispute resolutions?
c.
Can and should evidence law somehow ‘go global’, expanding beyond common-law countries?
My instincts tell me that evidence law should remain a strong force, apply to most formal disputes,
and be a popular and influential subject of law all over the world. However, the conventional wisdom
indicates the opposite. I have been told that the jury trial was fundamental to the origin of evidence law,
and the Jury Control theory of evidence law has been dominant throughout its development. I have been
told that evidence law does not apply to alternative dispute resolutions (‘ADRs’) and is almost always
applied loosely in bench trials. I have also been told that evidence law is a peculiar feature of the
common law system and has almost never been a subject of serious study in civil law countries.1
These questions on the traditional role of evidence law are being met with a second set of questions,
as scientific, electronic and process-based evidence arise globally through rapid advances in science and
technology. Methods for presenting these new types of evidence at trials often clash with the traditional
evidence-law framework. For example, cross-examination may be the ‘greatest legal engine ever
invented for the discovery of truth’ with regard to witnesses (Wigmore, 1940: 32, sec. 1367), but it
is a poor instrument for probing the reliability of evidence based on an entirely computerised or
mechanical process (Cheng and Nunn, 2019: 1077–1080). The natural next development would appear
to be a systematic redesign of evidence law for the 21st century to better accommodate such evidence.
Such a framework will very likely no longer focus on jury control, nor otherwise be dependent on trial
by jury; rather it will focus on providing guidance to trial judges and other professional triers of fact in
assessing the reliability of these new forms of evidence, and it will almost certainly have a strong global
influence.
This essay analyses these two paths of evidence law development in the context of the American
legal system as seen through the eyes of an outside reviewer and argues that to strive for a different and
better future, the traditional evidence law framework should be preserved (the old path), but more energy
and passion should be devoted to developing a parallel body of evidence rules to accommodate evidence
based on developments in science and technology (the new path).
The essay proceeds in three parts. The first part reviews the traditional evidence law framework and its
dominant theory, the imminent threats to it and the efforts of modern evidence scholars who are struggling to
rejuvenate the subject. The next part explores three new forms of evidence based on developing science and
technology, forms that have started being accommodated by regulations drastically different from the
traditional framework. These regulations suggest a potential new path for the development of evidence
law. Finally, the third part proposes—to borrow a Chinese proverb—a new approach of ‘old way for the
elder, new way for newcomers’, for the future development of evidence law.
The old path with no easy way out
Conventional wisdom holds that Anglo-American evidence law is inextricably intertwined with the jury
trial. In the late 19th century, James Bradley Thayer, the great American evidence scholar, described the
law of evidence as ‘the child of the jury system’ (Thayer, 1898: 266). In his book A Preliminary Treatise
on Evidence at the Common Law, Thayer stated that ‘Our law of evidence is a piece of illogical, but by
no means irrational, patchwork; not at all to be admired, nor easily to be found intelligible, except as a
1. What I describe as the general consensus on Anglo-American evidence law has (with no surprise) been criticised by some. For
example, a scholar and friend tried to convince me that the common law thinking of evidence law has already influenced
European jurisdictions, inter alia through the medium of Article 6 of the European Convention on Human Rights (ECHR).
Nonetheless, in my opinion, such influence is an exception to the norm, and has only limited, dispersed impact on individual
civil law countries since Article 6 of ECHR defers to regulations under national law for rulings on the admissibility of evidence.
See European Court of Human Rights (2019).

Wang
331
product of the jury system…. where ordinary, untrained citizens are acting as judges of fact’ (Thayer,
1898: 508–509). In other words, Thayer believed that the jury was at the heart of the essentially peculiar
and often counterproductive institution of the law of evidence. Thayer’s student John Henry Wigmore,
another great American evidence scholar, made this point more explicit: juries, because of their cognitive
and epistemic failings, could hardly be trusted to apply the more scientific principles of proof directly to
particular issues, and thus they needed exclusionary rules of evidence to steer them in the right direction
(i.e., the Jury Control theory of evidence law).2
But nowadays the use of jury trials has been reduced in the United States and other common law
countries, and this decline continues (Schauer, 2006: 172–175). Research indicates that the number of
jury trials in US federal and state courts in both civil and criminal cases has diminished over the past 50
years, in both absolute (i.e., total number) and relative terms (i.e., as a percentage of all case disposi-
tions) (Bornstein and Greene, 2017: 8; Galanter, 2004: 459; Refo, 2004: 1). Many factors contribute to
this phenomenon, particularly an increase in ADRs (e.g., mediation, arbitration) and other nontrial
dispositions (e.g., settlements, plea agreements, summary judgments) (Bornstein and Greene, 2017: 8;
Refo, 2004: 58). Mirjan Damaška wrote in his book Evidence Law Adrift that ‘the American jury system
is now more ornamental than functional’ (Damaška, 1997: 129). Nonetheless, several American evi-
dence scholars fired back, questioning Damaška’s description. Roger Park countered that ‘Considered as
a percentage of cases tried, however, the jury seems to be holding its own. Federal jury trials have been a
fairly constant proportion of all trials in the last three decades, in criminal cases comprising a majority of
all trials.…Though jury trial seems anachronistic in certain types of cases, it will die slowly if at all’
(Park, 1998: 1494–1495). Likewise, Laird Kirkpatrick stated, ‘[Damaška’s] minor premise—that jury
trials are in the process of decline—is subject to challenge, at least if the focus is on the United States. In
the small fraction of cases that actually go to trial, the dominant form of trial in the United States remains
the jury trial’...

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