There is an approach to the subject from the viewpoint of history that clarifies the prospect. We may assume that the knowledge derived from an inspection of the scene may be characterized as evidence. Even if this be so, a view is not a "trial" nor any part of a trial in the sense in which a trial was understood at common law. This is seen from two circumstances. In the first place, the judge is not required to be present at a view, though he may go there if he will. In the second place, the practice for many years was to have a committee of the jurors, the usual number being six, attend at the view to represent the whole body. ... We have no thought to suggest that a view by a part of a jury is permissible today. That question is not before us. There is significance, none the less, in the fact that it was permissible in England, the home of the principle that a defendant charged with felony has the privilege of confronting his accusers and of being present at his trial. Certain it is that in the land where these maxims had their genesis and from which they were carried to our shores the proceeding known as a trial was thought of as something very different from the proceeding known as a view. To transfer to a view the constitutional privileges applicable to a trial is to be forgetful of our history.Of course, in the absence of some kind of tyranny of labels, the rule of law can hardly exist, can it? What Cardozo wanted is a sensible, or appropriate, or "just," interpretation of the scope of constitutional "labels" such as "trial," confrontation," and "due process." (In this particular case, Justice Cardozo emphasized in part that the reach of constitutional language must be sensitive to the purpose or purposes of the constitutional language. [Of course, Cardozo could not really escape the tyranny of labels: even matters such as purposes and historical practice must ordinarily be communicated by "labels." The true question question is which label or set of labels controls.])
A fertile source of perversion in constitutional theory is the tyranny of labels. Out of the vague precepts of the Fourteenth Amendment a court frames a rule which is general in form, though it has been wrought under the pressure of particular situations. Forthwith another situation is placed under the rule because it is fitted to the words, though related faintly, if at all, to the reasons that brought the rule into existence. A defendant in a criminal case must be present at a trial when evidence is offered, for the opportunity must be his to advise with his counsel, Powell v. Alabama, supra, and cross-examine his accusers, Dowdell v. United States, supra; Commonwealth v. Slavski, supra. ... Let the words "evidence" and "trial" be extended but a little, and the privilege will apply to stages of the cause at which the function of counsel is mechanical or formal and at which a scene and not a witness is to deliver up its message. In such circumstances the solution of the problem is not to be found in dictionary definitions of evidence or trials. It is not to be found in judgments of the courts that at other times or in other circumstances the presence of a defendant is a postulate of justice. There can be no sound solution without an answer to the question whether in the particular conditions exhibited by the record the enforced absence of the defendant is so flagrantly unjust that the Constitution of the United States steps in to forbid it.
In any event, is a view evidence or isn't it? Answer: the courts are divided on the question, but the trend is toward the answer "yes."