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
Donnelly, Richard C., "The Law of Evidence: Privacy and Disclosure" (1954). Faculty Scholarship Series. Paper 4762.