Oldal 205 [205]
OCR
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. + 203 ¢
