Page 199 [199]
THE FUTURE OF FREE PROOF IN CRIMINAL CASES
——o—
MIRJAN DAMASKA'
Stupendously rapid changes in various domains of social life have begun to affect
the administration of criminal justice. Consider only that the full adjudicative
process is everywhere in decline, and that systems of criminal procedure find
it harder and harder to function in accordance with their own long standing
principles. But the judge’s freedom from legal constraints in evaluating evidence
seems at first blush to be unaffected by the winds of change: legal rules limiting the
judges freedom to assess the probative value of evidence continue to be regarded
with suspicion, and must be justified lest they be viewed as a partial regression
to the legal proof system of ancien regime’s criminal procedure. On the pages
that follow I shall argue, however, that the actual sway of the continental free
evaluation principle is already more limited than conventional wisdom suggests,
and that its importance will be further diminished in the future. Going forward,
I will claim, legal proof rules of certain genre will appear increasingly desirable
and constrain judges in their fact-finding activity.
First, then, about the extent of free evaluation of evidence rebus sic stantibus.
After the French Revolutionary Assembly adopted a variant of the English jury
system, the view prevailed that the assessment of the probative potential of evidence
is a matter of legally untouchable inner psychological acceptance, or a matter of the
decision-maker’s “conviction intime”. The certainty required for establishing the
defendant’s guilt was believed to be insufficiently transparent to justify reasoned
explanation, and jurors were not required to give reasons for their decisions.
Their factual findings were consequently exempted from appellate review.’ Soon,
however, unreviewable jury verdicts were subjected to criticism as being erratic,
and most continental jurisdictions abandoned the view that the processing of
evidence is impervious to regulation. The freedom of the judges to determine the
probative value of evidence came to be interpreted to include only the exemption
1 Sterling Professor Emeritus of Law at Yale Law School.
2 The exemption was also supported by the idea that jurors were imagined as avatars of the
sovereign French people, and by the briefly help antipathy toward the hierarchical review
of verdicts.
* 197 «