Foreword

• Author: David H. Doherty
• Profession: Justice
• Pages: 23-24

FOREWORD

Were the law of evidence a science, it would be an app lied science. While the study of

the law of evidence can be an enga ging and challenging intellectua l exercise, it is the

application of that law in the context of the ad versarial process that poses the g reatest

challenge. Criminal law yers are the premier, if not the only remaining, pr actising clini-

cians of the law of evidence. This text, M odern Criminal Evidence, authored by several

busy practising criminal l awyers and intended for use by crimina l lawyers, will quickly

become a valued clinical tool .

Even a brief review of the table of contents reveals the ambiti ous scope of the text. It

truly leaves no evidentiary s tone unturned.

The first chapter (Introduction: Basi c Concepts in the Law of Evidence) sets the tone

and standard for the rest of the text . Not surprisingly, there is nothing new in this chap-

ter. It does, however, deserve to be read and reread regularly. The chapter i dentifies and

assembles the fundame ntal principles of the law of evidence with a masterful logic a nd

clarity. With a firm grip on the material provided in Chapter 1 , counsel will be well armed

to effectively analyze and argue m ost evidentiary problems that will arise in the course

of a criminal trial, subject per haps to arguments turning entirely on statutory provisions.

Chapters 2 (From Evidence to Verdict: Confessions of a Judicial Fact-Finder), 3 (Judi-

cial Notice), and 5 (Circumstantial Evidence), and to a lesser extent, par ts of Chapter 4

(Opinion Evidence), all examine the fact-finding process . In addition to clearly describ-

ing the operative principles an d the different facets of fact-finding in criminal trials, the

text identifies and explores th e complex intersection where testimo ny, judicial notice,

and inference-drawing meet and som etimes collide to produce factual findin gs. The

authors make the importa nt point that as our society becomes more diverse and prev i-

ously widely held common be liefs become less common, and sometimes controversial ,

the fact-finding process becomes more complic ated and, some would say, suspect.

Chapter 2 provides a valuable persp ective on the law of evidence, which to my

knowledge cannot be found in a ny of the other standard texts. The chapter affords the

reader insight into how a very exper ienced and highly regarded tria l judge approaches

fact-finding in the dynamic of an unfolding tria l. Justice Pomerance’s candid obse rva-

tions provide insights that will allow litigators to bet ter know the audience to whom

they direct their submissions . Those same observations bring clarity to the evid entiary

principles and rules governing th e fact-finding function.

The law of evidence is obviously a broa d field. Individual chapters focus on sp e-

cific kinds of evidence: for example, Chapter 6 (Hear say) and Chapter 13 (Documentary

Evidence). Other chapters focus on the process involved in eliciting evi dence and the

rules referable to certain kinds of witn esses and certain kinds of evidence: for example,

Chapter 8 (Examination of Witnesses) and Cha pter 9 (Specific Types of Witnesses).

All of the chapters share a similar rhy thm. A topic is introduced with a clear state-

ment of the operative principle or r ule. That statement is followed by an identif ication

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