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The Law of Evidence: Privacy and Disclosure, 14 Louisiana Law Review 361 (1954)


The frequent assertion that the rules of evidence were

spawned by trial by jury is an over-simplification. Judicial distrust

of the jury, as Professor Morgan has shown,' is responsiblefor

only some of the rules. Ancient ideas regarding the reliability

of witnesses have contributed. Judicial beliefs that the suppression

of truth is essential to the fostering of certain relationships

have played a part. The adversary theory of litigation has accounted

for many of the rules. But ideals of justice have also

been influential. Mr. Justice Frankfurter has described this

influence as follows: 2

"Judicial supervision of the administration of criminal

justice in the federal courts implies the duty of establishing

and maintaining civilized standards of procedure and evidence.

Such standards are not satisfied merely by observance

of those minimal historic safeguards for securing trial by

reason which are summarized as 'due process of law' and

below which we reach what is really trial by force. . . . The

principles governing the admissibility of evidence in federal

criminal trials have not been restricted, therefore, to those

derived solely from the Constitution. In the exercise of its

supervisory authority over the administration of criminal

justice in the federal courts . . . this Court has, from the

very beginning of its history, formulated rules of evidence

to be applied in federal criminal prosecutions. . . . And in

formulating such rules of evidence for federal criminal

trials the Court has been guided by considerations of justice

not limited to the strict canons of evidentiary relevance."

The profundity of Justice Frankfurter's observations becomes

apparent if attention is focused on two themes running

through the law of evidence: Privacy and Disclosure.

Date of Authorship for this Version


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