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THE FUTURE OF FREE PROOF IN CRIMINAL CASES
What can one say about the likely fortunes of free evaluation of evidence in the
future? To offer conjectures on this topic is largely to talk about the increasing
influence of science and technology on factual inquiry. An increasing number of
facts that used to be determined by witnesses, or could not be determined at all,
can now be established by sophisticated technical instruments. And as the gulf
widens between reality perceived by our sensory apparatus and reality discovered
by devices capable of revealing the world beyond the reach of this apparatus, the
importance of human sensing has begun to decline in a variety of social spheres.
In some sports, for instance, challenges are appearing to the rulings of referees
by recourse to instruments capable of determining facts more accurately than
the human sensorium. Will the administration of justice be able to close the door
to increasingly reliable fact-finding instruments and methods without becoming
vulnerable to charges of dilettantish dabbling and obscurantism? Consider
that even as things now stand witness testimony is increasingly confronting a
competitor in the “silent testimony” of technological devices, testimony that must
be translated to judges by expert witnesses. The importance of these “translators” of
silent testimony will inevitably grow. Consider also that in some jurisdictions facts
are becoming subject of formal expert testimony which until recently belonged
to the basket of background information used by judges to evaluate evidence
formally presented in court. For the establishment of these facts common sense
and ordinary experience may not much longer be sufficient. In some American
courts, for example, the question whether the woman’s delayed report of rape
weakens her credibility calls for the opinion of experts rather than uneducated
guesses of the jurors. Changes seem likely even in the vitally important matter
of assessing witness credibility. Following improvements in the precision of
instruments like the polygraph, for example, one can easily imagine the emergence
of rules requiring that the testimony of witnesses, especially those offered by the
prosecution, be corroborated by expert testimony.
All this is not to say that forensic fact-finding will in the foreseeable future
be handed over to men and women in white coats. Science and technology, it
has rightly been remarked, are not Trojan horses in the citadel of free evaluation
of evidence. Scientific consensus is rare, and the attitude of ordinary people to
scientists is sufficiently ambivalent to prevent judges from unreflectively deferring
to experts. Assuming that polygraph experts will be permitted to testify, for
instance, judges will still remain entitled to assess their credibility. Nor is it
render general verdicts. In the continental European version of jury trials, where jurors
answer specific factual questions and return special verdicts, a degree of control over their
fact-finding is possible. For the duty of the Spanish jury to explain its verdicts, see Stephen
Thaman, Should criminal juries give reasons for their verdicts?, Chicago-Kent Law Review
88 (2011), 613-628.
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