The Modern Trial and Evidence Law: Has the "Rambling Altercation" Become a Pedantic Joust?

This Article places the relationship between evidencerules and the modern trial in a historical context. Thetrial's foundation is in popular culture-lay witnessestestifying before a lay jury. Eighteenth-century trials werea "rambling altercation" between the defendant and hisaccusers-unruly (literally), unstructured, very brief, andless concerned with the "truth"than a socially acceptablejudgment. The modern trial's emergence in the nineteenthcentury coincided with the professionalization of law, theactive involvement of lawyers as advocates, and thesprouting of evidence rules to regulate both lawyers andlay juries.

Nonetheless, evidence law accommodatedprevailing lay culture in order to foster legitimacy. Trialsnow searched for the truth, but did so in nineteenth-century terms.The problem today is that many of the keyepistemological assumptions of modern evidence law,especially credibility and character, draw from thosenineteenth-century roots. Dissatisfaction with some ruleshas triggered several troubling trends. One fixates onesoteric rules that beget inscrutable, often nonsensical,distinctions.

A second embraces psychology and socialscience as a means of fact finding and the polestar for therules themselves. Examples of both trends are drawn fromcharacter evidence, expert testimony, and credibilitydoctrine. Together, these trends reveal the law's discomfort with,and occasional contempt for, contemporary lay thinking.Trials are fast becoming a pedantic joust, inaccessible tothe lay public. Neither sophistic rules nor the lateststyling of social science are the answer.

Yet it may well bethat current evidence law poorly reflects modern popularthinking as well. The trial's legitimacy demands thatevidence law effectively mediate between legal institutionsand prevailing social and cultural thought aboutcredibility and human contact.