Evidence and Proof, Economics Of

Functions and Comparisons

Two major structural features distinguish AngloAmerican adjudication. First, the adversary process requires the contesting parties to take the primary responsibility for both investigating facts and selecting information to present in court. Second, there is a strict separation of decisional powers between factual and legal questions, which is represented by (but not exclusively associated with) the use of lay juries to decide questions of fact. Civil law systems tend to differ in both respects. These differences have motivated scholarship considering the comparative properties of the two models, in terms of both outcomes and the necessary content of rules of evidence and proof. Adversarial process is strongly associated with a right of in-person confrontation and cross-examination of opposing witnesses. In the United States, these rights are guaranteed to criminal defendants by both federal and state constitutions and are also reflected in the rules of evidence applied in other types of cases.

In all legal systems, the analysis of evidence law must account for the instrumental function of legal adjudication, as the predominant method by which rules of substantive law are brought to bear upon specific individuals or organizations. Most of the law's effect is produced by the prospect rather than the actuality of trial adjudication; rules of evidence are designed in part to influence primary conduct, mostly in situations that never ripen into legal disputes or adjudications. Those few disputes actually presented for decision probably are not representative of the underlying population of disputes, and even less representative of routine legal transactions. Furthermore, the conventional view is that adjudication must possess a degree of finality, at least as to its specific facts. Thus, fact-finding in legal adjudication differs from most other forms of human factual inquiry. Science, and even history, remain open to revision in light of new data or improved analyses. Legal adjudication generally does not. At some point, finality overcomes accuracy, and the legal system refuses to correct error, with continuing and sometimes fatal consequences to a litigant. This feature also implicates the content of ex ante evidentiary rules.

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