Resumen de Evaluation of Evidence: Pre-modern and Modern Approaches

Orna Alyagon- Darr

• Mirjan Damaška’s Evaluation of Evidence: Pre-modern and Modern Approaches revolves around a dilemma: how free should fact finders be to evaluate evidence in criminal trials? Is truth seeking an overriding consideration which justifies liberal admission of evidence, or will justice be served better by sifting illegal or faulty evidence, albeit at the expense of erroneous conclusions? At one pole stands a system of absolute freedom to receive any evidence and decide on its value, with no limitations whatsoever on competency, admissibility, weight, or the assessment of credibility. At the opposite pole one finds a system in which a rigid evidentiary system binds fact finders’ discretion and dictates what evidence may be submitted and how its value should be considered. The first paradigm is often associated with the medieval English courts, where witnesses could testify to almost anything, and jurors were exposed to hearsay, speculations, indications of the accused’s reputation—in short, even to gossip. The second is associated with their Continental counterparts, where Roman-canon law created an intricate and elaborate evidentiary system in which professional judges had to follow rules pertaining to quality and quantity of evidence, rules that would inevitably lead them to particular factual conclusions, and hence to particular determinations of guilt.