The Need for Truly Systemic Analysis of Proposals for the Reform of Both Pretrial Practice and Evidentiary Rules: The Role of the Law of Unintended Consequences in "Litigation" Reform

• Published in: The Review of litigation Vol. 32; no. 2; p. 201
• Main Author: Imwinkelried, Edward J
• Format: Journal Article
• Language: English
• Published: Austin University of Texas, Austin, School of Law Publications, Inc 01-04-2013
• Subjects: Civil law; Civil procedure; Evidence; Federal Rules of Evidence; Legal reform; Litigation; Pretrial discovery; Sex crimes; Testimony; Trials; United States > US
• ISSN: 0734-4015

"7 Although it is an overstatement to claim that "there is no such thing as European Continental Evidence law,"8 the continental systems have largely abandoned the canon9 and Roman10 law rules requiring the trier of fact to assign specified weight to particular types of evidence.11 In addition, as a general proposition civilian systems recognize fewer of the exclusionary evidentiary rules that characterize American law.12 For that matter, even countries that share the common-law tradition with the United States have substantially liberalized their admissibility standards. [...]England, the birthplace of the hearsay rule, has significantly relaxed that exclusionary doctrine by conferring more discretion on judges to admit demonstrably reliable, valuable hearsay testimony.13 In contrast, in the United States, the doctrine remains a complicated edifice with a definition,14 two exemptions,15 and no fewer than thirty different exceptions.16 To be sure, the American litigation system is in flux. In most cases, there is no trial.