NCJ Number
80208
Date Published
Unknown
Length
0 pages
Annotation
In this historical review of evidence law, Charles E. Moylan, Associate Judge of the Maryland Court of Special Appeals, summarizes its evolution from the origins of the common law in 1154 to James B. Thayer's definitive treatise analyzing the law of evidence in 1896.
Abstract
The concept of evidence is deemed unique to the Anglo-American legal system and derived from the uniqueness of trial by jury. Evidence law functions to protect the untrained jury from influences on its judgment. The historical progression by which evidence law evolved begins with the emergence of juries, both grand (23 members) and petty (12 members), in the wake of the Fourth Lateran Council in 1216, which abolished the Church's participation in trial by battle and ordeal. The fact-finding mission of the petty jury stimulated the use of witnesses, which by 1500 were coming to the jury instead of the reverse. In essence, the rules of evidence delineate what the witnesses may or may not testify to. Whereas originally the numerical count of witnesses was of importance in determining the merits of a case, the jury gradually assumed discretion for determining the weight of testimony in terms of its content. Among the concepts and historical practices reviewed in this account is the role of the 'common' law as an instrument by which Anglo-Saxons were 'Normanized,' the roots of criminal law in transgressions against the peace of the king, and the structure of trial by battle or ordeal, in which there is no room for the rules of evidence and preliminaries are immediately followed by divine decision of the verdict.