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Freedom of Proof and the Reform of Criminal Evidence1

  • William Twining


In recent years reform of the Law of Evidence has been the subject of renewed interest in many common law countries. Since the adoption of the Federal Rules, debate about wholesale reform has been relatively muted in the United States. But this is exceptional. Major reports have been produced in Australia, New Zealand, Canada, Scotland, and England. With the exception of Canada, most of these have led, or are likely to lead, to significant legislative changes. This period of reformist activity has coincided with a greatly increased interest in theoretical aspects of evidence and proof, sometimes referred to as “The New Evidence Scholarship”. The historical origins of these two movements are rather different, but their ways of talking and thinking about the subject are, of course, intimately connected.



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Research Professor, University College London. I am grateful to Terence Anderson, Ian Dennis, Michael Graham, Alex Stein, and the participants at the Jerusalem Conference for helpful comments on earlier drafts.



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2 Until recently there was no Standing Committee on the Federal Rules. There were only six substantive legislative amendments of the Rules in the fifteen years after their enactment in 1975. Becker, Edward R. and Orenstein, Ariva, “The Federal Rules of Evidence After Sixteen Years”, (1992) 60 Geo. Wash. L. R. 857 (arguing, inter alia, for the establishment of an Advisory Committee). The Advisory Committee, appointed by the Chief Justice of the United States, was discharged after the enactment of the Federal Rules, but has recently been revived. Saltzburg, Stephen A., Martin, Michael M., and Capra, Daniel J., Federal Rules of Evidence Manual, Vol. 1 (5th ed., 1994) 6 .

3 Developments in Australia are reviewed by Choo, Andrew L. -T., “Reform of Evidence Law in Australia” [1993] Crim. L.R. 268 and Ian Dennis, , “Codification and Reform of Evidence Law in Australia” [1996] Crim. L. R. 481 ; of the many reports the most important is Australian Law Reform Commission, Evidence Law (Report 38, Canberra, 1987), see now The Evidence Act 1995 (Commonwealth). In Canada there have been a number of major reports, but almost no major legislative changes: see especially Law Reform Commission of Canada, Report on Evidence (Ottawa, 1975); Ontario Law Reform Commission, Report on the Law of Evidence (1976); Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (1982). Neither the draft Evidence Code nor the draft Uniform Evidence Act has been enacted, largely because of opposition from the practising profession to comprehensive revision of the rules of evidence. See generally, Sopinka, John, Lederman, Sidney N. and Bryant, Alan W., The Law of Evidence in Canada (Toronto, 1992). Since 1980, The Scottish Law Commission has produced a series of consultation papers and reports some of which have resulted in legislation. The New Zealand Law Commission has produced an outstanding series of preliminary papers on evidence since 1991. See especially: “Evidence Law: Principles for Reform” (Paper no. 13, 1991); “Evidence Law: Codification” (Paper No 14, 1991); “Evidence Law: Hearsay” (Paper No 15, 1991); “Criminal Evidence: Police Questioning” Paper No. 21, 1992). On Ireland, see Fennell, Caroline, The Law of Evidence in Ireland (Butterworth, 1992). There is a useful survey of hearsay, especially in criminal proceedings, in selected common law and civil law jurisdictions in the English Law Commission's Consultation Paper on Criminal Law: Evidence in Criminal Proceedings: Hearsay and Related Topics (Consultation Paper No. 138, 1995), discussed in articles by Zuckerman, A. A. S., Ormerod, David C., and Spencer, J. R. in [1996] Crim. L. R. 433 .

4 Report of the Royal Commission on Criminal Justice (Chairman Viscount Runciman of Doxford), (London: HMSO cm 2263, 1993).

5 The Law Commission, The Hearsay Rule in Civil Proceedings (Law Com. No. 216) (London: HMSO, Cm 2321, 1993). See also The Hearsay Rule in Civil Proceedings, (1991), Consultation Paper No. 117 (1991). See now, Civil Evidence Act, 1995, implementing the Law Commission's proposals.

6 Ibid., chap. 8, paras. 25-26. See now The Criminal Justice and Public Order Act 1994 (the Evidence provisions are usefully reviewed by Ian Dennis in [1995] Crim L. R. 4) and the Law Commission's Consultation Paper No. 138 (1995).

7 A striking example is the refusal of common law jurisdictions to introduce a formal requirement for corroboration of eyewitness identification evidence in the light of very extensive empirical research about factors that tend to make such evidence unreliable in many contexts. In England the Criminal Justice and Public Order Act, 1994 ss. 32 and 33 have further attenuated corroboration requirements (implementing the Law Commission's report on corroboration (Law Com. No. 202, 1991)), discussed by Peter Mirfield, [1995] Crim. L. R. 448 and Diane Birch [1995] Crim. L. R. 524.

8 A few legislative amendments have, in the process of simplification and increase of discretion, opened the door to exclusion of more evidence, for example, s. 78 of the Police and Criminal Evidence Act, 1984 (broad discretion to exclude where admission “would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it”).

9 RE, at 194-203.

10 Recently, one strand of “The New Evidence Scholarship” represented by Ian Dennis, John Jackson, and Alex Stein, has argued for a new theory of the Law of Evidence based on normative principles rather than Thayer's weaker “principle of free proof”. Ian Dennis, , “Reconsidering the Law of Criminal Evidence”, (1989) CLP 21 and Instrumental Protection, Human Right or Functional Necessity? Reassessing the Privilege Against Self-Incrimination”, (1995) 54 Cambridge L. J. 342 ; Jackson, John, “Analyzing the New Evidence Scholarship: Towards a New Conception of the Law of Evidence”; (1996) 16 Oxford J. Legal Studies 309 ; Stein, Alex, “The Refoundation of Evidence Law”, (1996) 9 Can. J. of Law and Jurisprudence 279 . The issues raised by these recent writings are too complex to pursue here; suffice it to say that I am generally sympathetic to this development, but I would continue to emphasise the importance of re-integrating the different bodies of rules of evidence into their respective procedural contexts rather than trying to preserve or revive a unified law of evidence as, for example, John Jackson suggests. See below n. 12.

11 RE, at 203-5, and chap. 11.

12 For example, legislation such as the Police and Criminal Evidence Act, 1984 and the literature relating thereto. Most courses on the Law of Evidence in England concentrate very heavily on criminal evidence (there is not much civil evidence law left to teach) and increasingly the literature treats criminal and civil evidence separately. In RE, at 348, I suggested that “it makes sense for most purposes of study, exposition and theoretical critique to treat the logic of proof and the rules of evidence as two intimately related parts of the same subject.” On reflection, I think that this statement needs to be qualified: while civil and criminal evidence do share some basic concepts and a shared foundation in the logic of proof (see Anderson, T. and Twining, W., Analysis of Evidence (1991)), for most other purposes, and especially in considering law reform, the reintegration of evidence with the different branches of procedure is so crucial that it is misleading to talk of the Law of Evidence as a single subject. For a good discussion of the relationship between civil and criminal evidence, see Zuckerman, A., Principles of Criminal Evidence (1989), chap. 1. However, John Jackson concludes that it is worth maintaining both evidence as a single subject and the law of evidence as a single body of rules: “It is, of course, important that proper consideration is given to the different procedural contexts in which information and evidence is generated and evaluated. Due weight can be given to the values that are considered important in each particular procedural context. But if the law of evidence is to retain an identity of its own, it must transcerid the particular contexts in which evidence is conveyed and evaluated, by conceptualizing new models of proof that do justice to the goals of truth finding and fairness that are still considered important in a number of procedural contexts.” (supra n. 10, at 327-8).

13 The situation in the United States is more complex. The trend has to some extent been in two different directions: on the one hand, the impact of constitutional law on criminal procedure has, inter alia, promoted the separation of criminal and civil evidence; on the other hand, insofar as the constitutional aspects are treated more in courses on criminal procedure than in courses on evidence, this has helped the survival of courses and of course books that treat evidence as a single subject centred on the Federal Rules. American courts are more inclined to treat precedents on, e.g. experts, as belonging to a single field. Of course, the FRE do distinguish between criminal and civil cases for some purposes. New Zealand, Australia and Canada law reformers have so far generally leant against separate civil and criminal evidence codes. The Scottish Law and English Commissions have both treated civil and criminal hearsay as two distinct subjects, see below n. 20.

14 See supra n. 3.

15 See RE, chap. 5 and at 366-8.

16 A striking example is the important recent empirical work on the role of stories in fact-finding, which treats contested jury trials as the paradigm: e.g. Bennett, W. and Feldman, M., Reconstructing Reality in the Courtroom (1981); and the important “story model” of Pennington, Nancy and Hastie, Reid, which is a by-product of jury research. “The Story Model of Decision-making” in Hastie, R. (ed.), Inside the Juror (Cambridge U.P., 1993) 192 ; “A Cognitive Model of Decision-making: The Story Model” in the Cardozo Symposium on Decision and Inference in Litigation (1991) 13 Cardozo L. R. 519 ; cf. the distorting effect of the jury model on eyewitness identification research, RE, chap. 5.

17 Para. 4.2.

18 Report on Corroboration, Hearsay and Related Matters (1986), Scot. Law Com. No. 100, para. 1.3. However, it is worth noting that the Scottish Law Commission explicitly adopted a different approach to criminal hearsay in its discussion paper two years later.

19 This issue was the subject of a protracted debate, starting in The New Law Journal between September and December, 1993. Professor Michael Zander, who had entered some significant dissents to the Report, in defending the Royal Commission's pragmatic approach, stated that: Avoiding conviction of the innocent is obviously of very great importance, but so is the conviction of the guilty — and so, for that matter, is achieving efficiency and due economy in the system. Each had to be given its proper weighting in regard to every topic.” (1993) 143 NLJ 1338 . This, predictably, attracted attacks on the ground that the approach was unprincipled and incoherent. The Government was highly selective in its treatment of the Runciman “package”, leaning strongly in the direction of a strong “law and order” set of piecemeal legislative changes, some of which had been implemented by 1996. For a useful collection of materials relating to the story of the Runciman Commission and its aftermath, see Zander, M., Cases and Materials on the English Legal System (7th ed., 1996).

20 “Our strongly-held provisional view is that there must be different rules for the admissibility of evidence in criminal and civil courts … [T]he purposes of the two kinds of proceedings are different and, significantly, they have, on the whole, very different fact-finding bodies as well as different standards of proof. Moreover … a finding in civil proceedings has no probative value in criminal proceedings, while a conviction in criminal proceedings is regarded in civil proceedings (other than for libel and slander) as evidence only that the person in question committed the offence unless the contrary is proved.” LC Report 138, supra n. 6, para. 1.13 (footnotes omitted).

21 See further Stein, supra n. 10.

22 For a longer account see Langbein, John, Torture and the Law of Proof (Chicago, 1977), chap. 3. A useful summary of the continental sources and history is Kunert, K., “Some Observations on the Origins and Structure of Evidence Rules under the Common Law System and the Civil Law System of ‘Free Proof’”, (19661967) 16 Buffalo L. R. 122 . This needs to be read subject to the more recent research of John Langbein and others, see below.

23 John Langbein has convincingly shown that the decline of torture and of the formal system of proof preceded their formal abolition by at least a century and probably more. The attribution of the abolition of torture to enlightenment criticism is accordingly little more than a “fairy tale”:

“… the Roman-canon law of proof lost its force not in the nineteenth century but in the seventeenth. A new system of proof, which was in fact free judicial evaluation of the evidence although not described as such, was developed in the legal science and the legal practice of the sixteenth and seventeenth centuries and confirmed in the legislation of the seventeenth and eighteenth centuries … Torture could be abolished in the eighteenth century because the law of proof no longer required it.” J. Langbein, supra n. 22, at 11-12. Recent research suggests that the process may have begun even earlier, e.g. Soman, Alfred, Sorcellerie et justice criminelle: le Parlement de Paris, 16e-18e siecles, (Brookfield, Vt. 1992); see also, Peters, Edward, Torture (Blackwell, 1985). For present purposes the central point is that “free proof” in Continental Europe replaced a body of rules of quantum and weight which were never of significance in England.

24 Damaska, M., The Faces of Justice and State Authority (1986). On the relationship between legal culture and proof, see further, M. Damaska, “Rational and Irrational Proof Revisited”, Cardozo J. of Int. and Comp. Law (1996, forthcoming) and W. Twining, “Civilians Don't Try” (Reply to Damaska) ibid.

25 In 1988 I was invited to give a lecture on “free proof” in Trento in Northern Italy. On arrival I discovered that the primary concern behind the choice of topic was a feeling on the part of first instance judges that their findings of fact were being too frequently reversed on appeal or review, in other words the freedom of triers of fact to make final determinations rather than a freedom from rules of evidence.

26 Wigmore went so far as to say that to talk of rules of weight or credibility in the common law system is moral treason” (1908) 3 Illinois L. R. 477–8.

27 For a detailed account see my Theories of Evidence: Bentham and Wigmore (1985) (hereafter TEBW), chap. 2.

28 TEBW, at 66-75. Bentham was, of course, prepared to recommend exclusion of evidence if it was irrelevant or superfluous or its adduction would involve preponderant vexation, expense or delay in the particular circumstances of the case.

29 7 Works 599. Bentham attached great value to both cross-examination and publicity and was much concerned with the “forthcomingness” of witnesses.

30 Thayer, J. B., Preliminary Treatise on Evidence at Common Law (1898, reprinted 1969) at 530 , cf. 266.

31 RE chap. 6.

32 Cf. 1 Wigmore, Treatise on classification of rules of evidence, discussed TEBW, 158-9.

33 Supra n. 30, at 314 n. It is not entirely clear (but it is probably unlikely) that Thayer would have included within his conception of “law” Dworkinian principles of political morality or purely admonitory instructions that guide but do not bind the adjudicator, but he would probably have included a judge's duty to warn a jury about the unreliability of eyewitness identification evidence or the evidence of accomplices. What is clear is that Bentham's conception of “rules” is much narrower than Thayer's in this context.

34 RE, chap. 6.

35 Cohen, L. Jonathan, “Freedom of Proof”, in Twining, W. (ed.), Facts in Law (1983, ARSP, Beiheft 16) at 1 , reprinted in Twining, W. and Stein, A. (eds.), Evidence and Proof (Dartmouth, 1992).

36 Cohen talks of “universal” cognitive competence and adopts a somewhat positivistic interpretation of “adjudicative” facts, but he allows for exceptions and concedes a limited role to juries in serving other functions than fact-finding. I have expressed some reservations about Cohen's argument (Analysis of Evidence, at 369-72) especially in relation to culturally plural societies, but these qualify rather than undermine his general thesis. For a balanced discussion of Cohen's work on evidence see Schum, David, Evidential Foundations of Probabilistic Reasoning (New York, Wiley, 1994) 243–61 et passim.

37 One of Cohen's main targets is the work of Kahneman and Tversky which suggests that ordinary adults are susceptible to a number of kinds of endemic fallacy and as such are not “cognitively competent”.

38 See, however, Cohen's thesis about the distinction between belief and acceptance, Should a Jury Say what it Believes or Accepts?”, (1991) 13 Cardozo L. R. 465 ; An Essay on Belief and Acceptance (Oxford, 1992); see also Schum, supra n. 36, at 235-43.

39 This passage is adapted from TEBW, at 71, in which the thesis is examined at length.

40 For a partial dissent from Cohen's strong version of cognitive consensus and for his somewhat positivistic approach to “fact” in legal contexts see RE, 137-8 and Analysis of Evidence, supra n. 12, at chap. 6, section d.

41 On over-inclusive and under-inclusive rules, see Schauer, F., Playing by the Rules (Oxford, 1991), Twining, W. and Miers, David, How To Do Things with Rules (3rd ed., 1991), and Kaplow, L., “Rules versus Standards: An Economic Analysis”, (1992) 42 Duke L. J. 557 .

42 See, however, Stein, supra n. 10. It has been suggested to me that a presumption of free proof follows logically from the assumptions of a Benthamite” Rationalist model” of evidence in adjudication. The argument seems to be that if the direct end of adjudication is rectitude of decision, “the method of reason” prescribes that ordinary principles of valid reasoning are the best means of achieving that end. This suggestion is mistaken for two reasons: first, some rules of evidence — those that Wigmore classified as “rules of auxiliary probative policy” — are justified because they are supposed to enhance rectitude of decision: for example, excluding evidence where the prejudicial effect outweighs its probative value. Second, Benthamite cost-benefit analysis does not put an over-riding priority on rectitude of decision: the direct and subordinate ends (vexation, expense and delay) need to be weighed according to ordinary utilitarian cost-benefit analysis in the circumstances of each case. There is, of course, an assumption that rectitude of decision in adjudication is important, but it does not prescribe a general priority for the “direct end”. Per contra, non-utilitarian principles, such as non-conviction of the innocent, can be given a privileged status at a general level.

43 RE, 183-4.

44 Supra n. 5, at para. 4.2.

45 E.g. Heydon, J.D., Cases and Materials on the Law of Evidence (3rd ed., with Mark Ockelton, 1991) at 89 . Compare, however, the excellent article by Nance, Dale, “The Best Evidence Rule”, (1988) 73 Iowa L. R. 227 , arguing that the rule is far from dead as a general principle, if not as a peremptory rule.

46 Para. 4.5.

47 Para. 1.4.

48 Other objections have been advanced, especially in respect of criminal hearsay, not least that rigid rules governing exclusion or exceptions invite their evasion by fictions and artificial devices. See Zuckerman, supra n. 12, at chap. 11 and Ashworth, A. and Pattenden, R., “Reliability, Hearsay and the English Criminal Trial”, (1986) 102 L. Q. R. 292 . See now the symposium in [1996] Crim. L. R. 133 .

49 Para. 3.41, 4.4.

50 Para. 3.42.

51 Recently civil jury trials have averaged less than 25 a year, mainly in defamation cases. See generally, Zander, supra n. 19, at 376-83.

52 The Royal Commission recommended the abolition of “either way” offences, in which the accused can elect for either trial by jury in the Crown Court or to be tried summarily, (chap. 6, recommendations 114-5). If implemented, this will considerably erode the scope of trial by jury. On the ensuing controversy, see Zander, supra n. 19, at 17-22.

53 European Convention on Human Rights, especially Article 6(3)(d) which provides: “6.3 Everyone charged with a criminal offence has the following minimum rights: … (d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” For a useful discussion, see Osborne, Craig, “Hearsay and the Human Rights Court” [1993] Crim. L.R. 255 . In 1988 the Scottish Law Commission explicitly adopted a different approach to criminal and civil hearsay: “For the purposes of criminal proceedings, however, we do not favour the approach adopted either in our Report on Evidence in Civil Proceedings or in the Civil Evidence (Scotland) Bill. We are of the opinion that the higher standard of proof beyond reasonable doubt demanded of the Crown in criminal trials and the nature of the proceedings themselves, where an individual's liberty may be at stake, require a different approach. We consider that as far as practicable, the right to cross-examine the original maker of a statement should be maintained in criminal proceedings and the basic approach of the common law, which observes that principle, should be preserved.” (Citing the European Convention and the case of Unterpertinger, (1/1985/87/139) an Austrian case in which an accused was convicted mainly on the basis of written statements made to the police by non-compellable witnesses who declined to give oral evidence. This was held by the Court of Human Rights to be a violation of Article 6.) (Scot. L. Comm. Discussion Paper No 77 (Sept. 1988)); see also, Funke v. France (1993) 16 E. H. R. R. 297 (European Court of Human Rights), and Saunders v. United Kingdom. The VIth amendment to the U.S. Constitution provides that “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with witnesses against him …”. The relationship between this provision and the hearsay rule under the Federal Rules of Evidence has been the subject of some difficulty. See the excellent discussions by Graham, Michael, “The Confrontation Clause, The Hearsay Rule and The Forgetful Witness”, (1978) 56 Texas L. R. 151 and The Confrontation Clause, The Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship” (1988) 72 Minn. L. R. 523 . Graham recommends that the confrontation clause should be interpreted to read: “In all criminal prosecutions, the accused shall enjoy the right … to be present and to cross-examine his accusers if they are available” (1988 at 600).

54 Supra n. 45.

55 Zuckerman, supra n. 12, at 181, arguing that the prosecution is likely to rely on hearsay in a far greater number of cases than the defence.

56 Para. 1.6.

57 The terms of reference of the Royal Commission were framed more widely to cover much more than alleged miscarriages of justice (Zander (1993), supra n. 19). Nevertheless, the establishment of the Royal Commission was announced on the same day that the Court of Appeal quashed the convictions for murder of the “Birmingham Six” (para. 1) and the context of the exercise was public disquiet about a series of acknowledged miscarriages of justice.

1 The text focuses on debates, reports and trends relating to the reform of the law of evidence in several common law jurisdictions prior to December 1993, the date of the Jerusalem Conference. Some subsequent developments are alluded to in the footnotes, but since the reports discussed in the text were illustrative of quite general themes, I have not substantially altered the text. This paper builds on and extends themes developed in a series of earlier essays, which are collected in Rethinking Evidence (Blackwell, 1990 ; Northwestern U.P., 1994) (hereafter RE). For present purposes the most important theses are: (i) that nearly all specialist Anglo-American writers on the law of evidence between Gilbert (1754) and Cross (1958-79) broadly accepted, explicitly or implicitly, a shared set of assumptions about the ends of adjudication and the nature of proof which can be characterised as “The Rationalist Tradition of Evidence Scholarship” (RE, chap. 3). Although this historical thesis relates to a specific period in the history of the common law, the ideal type has a potentially broader application, with or without modification, to many civilian writers and some earlier common law jurists, (ii) that the modern Anglo-American law of evidence broadly conforms to Thayer's conception of it as a series of disparate exceptions to a principle of free proof, if that term is interpreted to refer to natural or common sense modes of reasoning about facts at trial, unconstrained by artificial, mandatory precepts, such as strict rules excluding classes of evidence or witnesses (RE, chap. 6). (iii) that issues related to evidence and proof arise in relation to all important decisions in criminal and civil litigation and that the law of evidence should not be conceived as bearing solely or mainly on contested trials (RE, chap. 11).

* Research Professor, University College London. I am grateful to Terence Anderson, Ian Dennis, Michael Graham, Alex Stein, and the participants at the Jerusalem Conference for helpful comments on earlier drafts.

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Freedom of Proof and the Reform of Criminal Evidence1

  • William Twining


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