Conclusions

• Author: David M. Paciocco/Lee Stuesser
• Pages: 543-552

543

CHAPTER 13

CONCLUSIONS

1. INTRODUCTION

Tradition does not car ry the weight it once d id. This is because our

conception of the common law has changed, pa rticularly as it applies

to the law of evidence.

In its c lassic form , the common la w, which i s the life-spr ing for most

of our r ules of e vidence, i s endemic ally bac kward-loo king and g eneral. It

valu es form al just ice, whic h is ach ieved by treat ing lik e case s alike , more

than it values a particular judge’s sense of substantive justice in a given

case. This is a corolla ry of t he r ule of law, w ith its central notion that

people should be ruled by law rat her than by the will, taste s, or perspec-

tives of other people. In the end, it is expected that a judge can say, “It is

not my decision. I a m simply applying the law.” And it is expected that,

in the interest s of justice i n the long r un, the judge w ill apply t hose rule s

even when they seem manifestly inappropriate 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. Whatever its

strengths or weaknesse s might have been, a ca se can be made that it no

longe r ser ves as an appro priat e model for judi cial d ecisi on mak ing. Wi th-

out a doubt, it certainly doe s not describe the current law of evidence.

Despite the effort th at we, as the aut hors of thi s book, have made to state

the law of evidence in proposition form, its rules are often uncertai n.

Even when the rules can b e stated with conf‌idence, they c annot always

be applied with cer tainty. The t ruth i s that judges can rarely claim that