Bentham's reform of evidence law

Why keep someone from giving evidence that could establish their innocence? That is my first reaction to the old rule. If a defendant wants to explain what happened, surely that account could help the court find the truth. The person might lie, but that is a reason to scrutinize the testimony, not an obvious reason to forbid it altogether.

We have met Bentham, but we haven't yet heard his proposal. For now, the writer is showing us the system he encountered. Notice the judgment in “extreme in its irrationality.” This is not a neutral list of quaint historical practices. The writer thinks something was wrong with the way relevant evidence was being kept out.

Still, some exclusions had sensible reasons behind them. If a witness says that an absent neighbor reported something, the court cannot question that neighbor to check the account. I can see the problem. But does that justify rejecting every such statement? Imagine a relevant, reliable statement whose maker has since died. The concern about cross-examination hasn't disappeared, but automatically excluding the statement might also deprive the jury of useful information. The problem is how mechanically the rule operates.

Paragraph 3 brings that problem into focus: all the technicalities could prevent the truth from emerging, even after an expensive, lengthy case. And reform was hard because lawyers had interests in the existing system and revered tradition. We finally get Bentham's answer: admit virtually all evidence that helps prove or disprove the disputed issue.

In plain English, let the jury hear it. That is his nonexclusion principle. He does allow a few exceptions, including proof whose value doesn't justify the trouble or expense of considering it and confessions to a Catholic priest. So don't turn virtually all into literally everything.

The next paragraph asks whether the jury can always sort the useful evidence from the misleading evidence. Bentham thinks jurors should weigh its character themselves. I understand the appeal: give them more information and let them judge it. But what if the information pushes them toward a wrong verdict? Knowing that someone robbed banks before could make jurors assume that the person committed this robbery too. The earlier crimes don't establish that. The writer's example is about the danger of prejudice outweighing the evidence's usefulness.

There is a second objection, separate from reliability. Some information may be relevant, yet other social values could justify protecting it. If someone expects a priest to disclose a confession in court, that could undermine the willingness to confide. Bentham already accepts an exception for those conversations. Then why not consider similar protection for conversations with social workers or between parents and children? Once we admit that another value can outweigh getting evidence, we need to explain where to draw the line.

The ending gives us a qualified success. The approach that prevailed after Bentham's death favors admitting relevant evidence unless a clear policy reason supports exclusion. His idea became the starting point, with more exceptions than he would have wanted. That is what it means to move from a rule to a presumption: begin by favoring admission, but allow sufficient reasons to overcome that default.

My prediction is that Bentham helped move evidence law toward admitting more relevant information. We should also retain the qualification: the writer sees problems with his proposal, yet treats the movement away from rigid exclusion as an improvement.