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One Hundred Years of Evidence Law Reform: Thayer's Triumph |
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| This Essay traces the history of twentieth century
evidence reform through the codification efforts led by
three great evidence scholars: Thayer, Wigmore and Morgan.
This codification movement resulted in the drafting of
the Federal Rules of Evidence in 1975, and their subsequent
adoption by over forty states. In particular, Swift
focuses on the writings of Thayer and brings his
achievements in the field to the attention of the current
generation of evidence students. Thayer, and many other major twentieth century reformers, advocated increasing the discretion of the trial judge to admit or exclude evidence. Swift defines what is meant by "discretion" in this context, and contrasts the operational thinking required of judges under a standard of discretion with the categorical thinking required by bright-line rules. The debate over discretion is then sketched through Wigmore's and Morgan's competing approaches to codification, the failure of the Model Code of Evidence in the 1940s, and the ultimate success of the Federal Rules. Now that Thayer's call for increased discretion has triumphed, however, troublesome issues of an "excess" of trial court discretion are raised in three areas of law: hearsay, expert opinions and character. Swift describes how recent developments permit trial judges to ignore bright-line rules and, in the area of expert opinion, to make essentially unreviewable determinations regarding the admission or exclusion of outcome-determinative scientific evidence. She identifies fundamental values that are threatened by these developments and posits that the changing nature and context of litigation at the end of the twentieth century make excess discretion even more problematic. |
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Copyright
© 2000 by California Law Review, Inc. |
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