Scholars who downplay the importance of continental rules of evidence implicitly assume that these rules govern courtroom procedure. But evidentiary rules can shape the ways in which evidence is acquired through investigations as well as ways in which it is ultimately presented at trial. By focusing on courtroom procedure, existing misses the important role that continental evidentiary rules play in sifting information at its source. Constraints on investigators become evidentiary rules when they significantly affect how investigators, such as police and undercover agents, obtain information about criminals, sort it and pass it on to prosecutors. In short, investigative rules function as evidentiary rules to the extent that they filter and shape the information that reaches the trier of fact.
Monday, November 10, 2008
Rules of Evidence -- They Are Unavoidable
I have long been of the view that rules governing the admissibility of evidence in adjudication are inevitable in any organized system of adjudication -- in any system of adjudication that is part of a procedural system that reflects and embodies societal preferences for certain modes of procedure rather than some other preferences. Any such system of procedure and adjudication, I have long thought, must filter evidence in some fashion. Now I can cite and quote an interesting article that offers some support for my general hypothesis. See Jacqueline Ross, "Do Rules of Evidence Apply (Only) in the Courtroom? Deceptive Interrogation in the United States and Germany," 28 Oxford Journal of Legal Studies 443, 444 (2008):