Conclusions

• Author: David M. Paciocco/Lee Stuesser
• Pages: 499-508

1. INTRODUCTION

Tradition does not carry the weight it once did. This is because our

conception of the common law has changed, particularly as it applies

to the law of evidence.

In its classic form, the common law, which is the life-spring for

most of our rules of evidence, is endemically backward-looking and

general. It values formal justice, which is achieved by treating like

cases alike, more than it values a particular judge’s sense of substantive

justice in a given case. This is a corollary of the rule of law, with its cen-

tral notion that people should be ruled by law rather than by the will,

tastes, or perspectives of other people. In the end, it is expected that a

judge can say, “It is not my decision. I am simply applying the law.”

And it is expected that, in the interests of justice in the long run, the

judge will apply those rules even when they seem manifestly inappro-

priate in the case at hand.

This model was never applied with perfect fidelity. Like any human

system, it is prone to poor or even manipulative application. Whatev-

er its strengths or weaknesses might have been, a case can be made that

it no longer serves as an appropriate model for judicial decision mak-

ing. Without a doubt, it certainly does not describe the current law of

evidence. Despite the effort that we, as the authors of this book, have

made to state the law of evidence in proposition form, its rules are

CONCLUSIONS

chapter 13

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