The Law of Evidence Essay Example | Topics and Well Written Essays - 3000 words

The Law of Evidence - Essay Example Within the Received View, the importance of testimony in the language of perception runs even deeper. Our daily conversations and descriptions of events are suffused with opinion, interpretation, and evaluation. Often we are allowed only to agree with the leading questions of our conversation partners, questions themselves suffused with assumptions, opinions, interpretations, and evaluation (Pattenden, 1986). Such conversations are about matters of interest but are, much more, occasions by which the speakers constitute and reform their relationship, an enterprise often well served by the sharing of opinions and judgments. The factual accuracy of the accounts is usually of less significance than self-revelation and invitations to reciprocity. By contrast, testimony in response to non-leading questions in the language of perception provides the jury exactly what it needs to decide the case according to the norms embedded in the instructions: an artificially stripped-down, value-free account of the witness's perceptions (Allen, 2005). These perceptions are a kind of "prime matter," as Aristotle put it, utterly plastic to both the jury's empirical generalizations and, more important, to the legal norms embedded in the instructions. Testimony in the language of perception reduces the likelihood that the jury will simply adopt the moral or political judgments smuggled into the "descriptions" by an authoritative or sympathetic witness. It is often suggested that the vigour with which the rule against hearsay is still applied in criminal cases is attributable to the phenomenon of trial by jury in criminal trials on indictment. Juries, it is said, cannot be expected to assess properly the reliability of hearsay evidence on a case-by-case basis, and thus it is preferable that a blanket ban on such evidence be maintained. Concern about the ability of juries to handle hearsay evidence was particularly prevalent in the 19th century, but its influence on current hearsay doctrine is still evident. 'It is probably no accident', Tapper has pointed out, 'that the hearsay rule is the same in both civil and criminal proceedings where the mode of trial is the same, whether in both cases by judge and jury as in the United States, or by judge alone as in South Africa; but different in England and Scotland, where the form of trial is quite different in civil and criminal proceedings.' Further, in Continental jurisdictions, where ve ry little reliance is placed on jury trial, there is no rule against hearsay of the sophisticated variety that exists in England. In Germany, for example, there is no formal ban on oral hearsay (although, in practice, such evidence is usually adduced only if the maker of the statement is unavailable, or to supplement her or his testimony and written hearsay is, subject to minor exceptions, freely admissible. France, like Germany, does not have a formal hearsay rule. The broad drift of the law of evidence has been to admit more and more hearsay evidence, and for the constitutional jurisprudence surrounding the