Evidence Commons^™

The Confrontation Right Across The Systemic Divide, Richard D. Friedman

Book Chapters

In his notable work, Evidence Law Adrift, Mirjan Damaška identified three pillars of the common law system of determining facts in adjudication, and examined these through a comparative lens: the organisation of the trial court; the phenomenon of temporally compressed trials; and a high degree of control by parties and their counsel. In reviewing the book, I suggested that a strong concept of individual rights was another critical feature of the common law system, especially in its American variant and especially with respect to criminal defendants.

In this essay, I will explore how these four features play out in the …

No Link: The Jury And The Origins Of The Confrontation Right And The Hearsay Rule, Richard D. Friedman

Book Chapters

The rule against hearsay has long been one of the most distinctive elements of the common law of evidence, and indeed— except for recent changes on the civil side in many jurisdictions— of the common law system of trial. Observers have long believed that the rule, like most of the other exclusionary rules of the common law of evidence, is "the child of the jury system". Though Edmund Morgan argued vigorously to the contrary, the received understanding is that the jury's inability to account satisfactorily for the defects of hearsay explains the rule. A famous, and perhaps seminal, expression of …