The peculiarity of American evidence law: An outsider's observation and reflection

Date01 July 2022
Published date01 July 2022
AuthorZhuhao Wang
Subject MatterArticles
The peculiarity of American
evidence law: An outsiders
observation and reection
Zhuhao Wang
Institute of Evidence Law and Forensic Science,
China University of Political Science and Law, Beijing, China
American evidence law is puzzling. It is essentially a large class of exclusionary rules barring
certain types of otherwise relevant evidence from reaching the trier of fact at trial, although
the same types of evidence would largely be regarded as valuable in the civil law system or
simply in everyday life. For outsidersespecially those from civil law countries, which favour
the principle of free proofsuch peculiarity is difcult to understand. It is not an overstate-
ment to say that the law of evidence simply never developed in civil law countries. As an out-
sider to the common law system, the author of this article probed into literatures regarding
rationales for American evidence law, with a focus on the jury controltheory raised by
James Bradley Thayer, who described evidence law as child of the jury systemin the late nine-
teenth century. Taking a close look at the complex, dynamic relationship between the common
law jury and American evidence law, the author argues that it is time for the child (evidence
law) to grow up by departing from jury thinking. American evidence scholarship should shift at
least partially away from jury-based trials and toward other contexts. Such a shift will make
evidence law more engaged with todays legal environment and on a global scale.
child of the jury system, evidentiary rules for non-jury proceedings, jury control theor y of
evidence law, peculiarity of American evidence law, rise of non-jury proceedings
To a scholar from a civil law jurisdiction, American evidence law is doubly puzzling. First is the issue of
codication. Although codication as a concept originated in the civil law system, most civil law coun-
tries do not appear interested in creating a statute for evidence (Zhang, 2008: 123). Rather, in Germany,
Corresponding author:
Zhuhao Wang, 25 Xitucheng Road, Haidian District, Beijing 100088, P.R. China.
The International Journal of
Evidence & Proof
2022, Vol. 26(3) 271286
© The Author(s) 2022
Article reuse guidelines:
DOI: 10.1177/ 13657127221104651
France, China and other civil law countries, the rules governing evidence are scattered among various
procedural statutes. According to comparative evidence scholar Mirjan R. Damaška, it is not an overstate-
ment to say that the law of evidence simply never developed at all in civil law countries (Damaška, 1995a:
2657; 1995b: 343348). Counterintuitively, it is common law countries, despite their reliance on case
law, that have developed sophisticated evidence statutes, a representative example being the U.S. Federal
Rules of Evidence (FRE).
A second puzzle for outsiders is the question of what is actually encompassed in evidence statutes.
Common sense suggests that accurate fact-nding is most likely to result when people receive all avail-
able relevant information, and eighteenth-century legal philosopher Jeremy Bentham wrote that the ideal
juridical system was one of free proof, in which evidence was admitted if logically relevant (if the con-
sideration of some piece of evidence made a proposition more or less likely than it would have been
without that evidence) and was then weighted in accordance with its intrinsic and probative value.
This principle of free evidence, though highly discretionary, is exactly the tradition of civil law countries
(He and Yao, 2003: 6465). The FRE, in contrast, are essentially a large cluster of exclusionary rules
barring certain types of evidence from reaching the trier of fact at trial, though these same types of evi-
dence would largely be regarded as valuable in the civil law system or simply in everyday life.
So, why is American evidence law so peculiar? Some scholars view it as the product of the adversary
system, with exclusionary rules being an attempt to achieve adversarial fairness (Langbein, 1996: 1172;
Morgan, 1937: 255; Nance, 1988: 229). Still others explain its peculiarities as stemming from a desire to
purify courts of perjury and fabrication (Imwinkelried, 1992: 1077). The great American evidence scholar
James Bradley Thayer provided perhaps the most convincing answer to this question in 1898, however,
when he described the law of evidence as the child of the jury systemin his A Preliminary Treatise on
Evidence at the Common Law:[O]ur 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 product of the jury
systemwhere ordinary, untrained citizens are acting as judges of fact (Thayer, 1898: 508509).
According to Thayer, then, exclusionary rules are needed to protect the jury against cognitive
Scholars in civil law countries are interested in this issue as well. For example, China is currently
developing its own evidentiary rules and evidence law system, and a better understanding of the peculi-
arities of American evidence law would help Chinese law reformers clarify what can and cannot be
learned from extant codes such as the U.S. Federal Rules of Evidence.
This article is divided into six parts. The rst part sketches Thayers observations on the relationship
between the common law jury trial and evidence law evolution, and the key principles of his Jury Control
Theory of evidence law. The second part examines critiques of the Jury Control Theory and two alter-
native explanations of American evidence lawthe adversary system and dishonesty prevention. The
third part reviews modern American evidence law, which shows that although signicant progress has
been made since Thayers time, American evidence law is very much still the child of the jury trial,
even as jury trials decline in number across the country. Based on these observations,the f ourthpart proposes
that the childthat is, American evidence lawmust now grow up, departing from the jury trial thinking
and adapting to non-jury proceedings like bench trials and alternative dispute resolutions (ADRs). The fth
1 Bentham (1827: 209) (stating that Benthams notion of Free Proof allowed for no restrictions other than the general principles of
practical reason). Especially noteworthy is Benthams claim that [a]lmost every rule that has ever been laid down on the subject
of evidenceis repugnant to the ends of justice(Bentham, 1827: 4). For extensive discussion, see generally Twining (1985).
2 Goldman (1999: 291) (stating that in making nonjudicial factual determinations, people usually do not make use of such articial
rules of exclusion).
3 Note: Studies on American evidence law gained popularity in China in the early 2000s, but mainstream Chinese legal scholars
quickly realized that the peculiarity of American evidence law makes it nearly impossible to borrow from the FRE. Featured arti-
cles published in China include, e.g., Chen (2007:5); Feng (2008:171). But see Yi (2008: 80).
272 The International Journal of Evidence & Proof 26(3)

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