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

Abstract

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 outsiders—especially those from civil law countries, which favour the principle of free proof—such peculiarity is difficult to understand. It is not an overstatement to say that the law of evidence simply never developed in civil law countries. As an outsider 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 control’ theory raised by James Bradley Thayer, who described evidence law as ‘child of the jury system’ in the late nineteenth 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 today's legal environment and on a global scale.