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THE FUTURE OF FREE PROOF IN CRIMINAL CASES
of a prosecution witnesses be corroborated by an expert in the application of a
scientifically based method of credibility determination. An increasing number
of rules of this kind are likely to be accorded a legitimate place in future evidence
law, while at an equal pace the number of situations will decrease in which judges
can establish facts solely on their subjective assessment of probative value. In other
words, the free evaluation of evidence will be further weakened.
Should this development be deplored? Does free evaluation really deserve to
be considered an ideal forensic fact-finding arrangement from which only a few
exceptions are tolerable? What should give us pause in accepting this view is that
it implies the undesirability of injecting the law into one of the most important
activities in the administration of justice. To devotees of the rule of law this must
appear strange. An ideal system to them would be one in which rules of law
determine the value of evidence in advance and lay down what proof is needed
for factual determination. Like the rule of law in general, these rules would
then function as a safeguard against arbitrariness and prejudice, guaranteeing
uniformity and facilitating predictability. An added benefit of their existence
would be the protection against charges of partiality in decision-making. Why
should such a system, saturated by law, not be considered ideal to a devotee of
the rule of law, rather than being viewed as a regression to an earlier stage in the
evolution of forensic fact-finding? The main reason is that the probative effect of
evidence depends so much on the context and the particularity of experience that
adopting fixed rules on such an unstable subject would be like trying to define a
chameleon by reference to the color of skin. This suggests, however, that it is more
appropriate for a devotee of the rule of law to treat free evaluation of evidence
as the second best solution rather than as an ideal. To the extent that useful
rules on the processing of evidence can be drafted, they should not be treated
as a departure from but rather as a movement toward a truly ideal fact-finding
system. And while as far as we can see scientific proof will not replace reliance
on ordinary cognition, this replacement cannot be ruled out for some distant
and very differently organized society. But we need not worry about the possible
remote agonies of the presently venerated free evaluation of evidence. We should
say instead with Racine:
“.. tant de prudence entraine trop de soin nous ne savons prévoir les malheurs de
si loin.”
1 “So much prudence requires too much care, we do not know how to foresee misfortunes
from so far”. Racine, Andromaque, Act I, Scéne I.
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