Case Management, Similar Fact Evidence in Civil Cases, and a Divided Law of Evidence

Abstract

It is widely assumed that, by virtue of their acquired professional skills, judges are markedly better than jurors at performing complex adjudicative tasks and that they are less susceptible to the cognitive distortions that affect lay minds when handling emotive or potentially prejudicial information. Taking its cue from the House of Lords recent decision in O'Brien concerning the admissibility of ‘similar fact evidence’ in civil proceedings, this article reviews existing experimental data which point strongly in the opposite direction. The advent of case management, in both civil and criminal cases, looks set to encourage a system in which the quantity and nature of evidence placed before the tribunal may be influenced by the tribunal's composition. This development is likely to reinforce the assumption of judicial superiority evident in existing procedural rules. Yet if judges share many, if not most, of the cognitive foibles of non-professional fact-finders, it is questionable—in the absence of further study—whether a divided law of evidence would be desirable or justified.