TEACHING EVIDENCE: IS THE UNITARY APPROACH VALID?

Abstract

The lawyer who sets out to produce a case book faces at the outset a difficult choice: to compile or to write, to provide the sources or to use the sources as an occasion for interpolating commentary. Of course most case books are the outcome of a compromise between these alternatives, but even so one hardly ever fails to detect which of them has had the upper hand. The course taken by P. B. Carter in Cases and Statutes on Evidence (Sweet & Maxwell, London i981), is clear and bold-the provision of primary sources. He divides the book into two parts; the first consisting of cases and the second of statutes and rules. This is the only book, I believe, which contains a comprehensive collection of the statutory material which is traditionally regarded as pertaining to the law of evidence. In view of the number and diversity of statutes containing provisions on evidence, and considering the substantial increase in legislative activity, this book offers an invaluable reference source even to those who have easy access to a law library. There are hardly any important omissions from the statutory section and its chronological arrangement would often save even the need to consult the table of contents or the index. The case law section of the book is arranged in twenty-six chapters, each preceded by a brief and lucid introduction designed-as the author explains-'to give a framework within which the relevant authorities can be seen'. This framework follows the hitherto generally accepted division of the subject. We find, for example, chapters on the burden of proof, on presumptions, on corroboration, on confessions, on evidence of disposition and so forth. It could, however, be argued that this traditional method of exposition, common-as it is-to most books on evidence, has become a hindrance to the understanding of the subject. To begin with, this method gives the impression that there is a unitary law of evidence; that the law applicable in criminal and civil cases is at base the same, though subject to numerous exceptions. While that may have been true fifty years ago or more, it is not so today. Civil cases are no longer tried before juries (subject to minor exceptions) so that many jury-related rules have disappeared from civil litigation, or are in the process of doing so. The rule against hearsay is to all intents and purposes confined to criminal proceedings only. But, above all, most of the rules of evidence applicable in criminal cases are in some way or other derivable from two fundamental principles: the need to protect the citizen from wrongful conviction, something that is akin to the constitutional right of personal freedom, and the right against self-incrimination. These two principles serve not