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The Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 Colum. L. Rev. 1168 (1996)


The main work of a legal system is deciding matters of past fact. Blackstone remarked that "experience will abundantly show, that above a hundred of our lawsuits arise from disputed facts, for one where the law is doubted of." Was the traffic light red or green? Was it OJ. Simpson or somebody else who wielded the dagger? Find the facts and the law is usually easy. The great chasm that separates the modem Continental legal systems from the Anglo-American systems is largely about the conduct of fact-finding. On the Continent, professional judges take the main responsibility for investigating and adjudicating, although the lawyers for the parties guide and limit the judicial inquiry in important ways. In the Anglo-American legal tradition, by contrast, we parcel out this work of fact-finding among three sets of actors: the lawyers for the parties, the professional judge, and the laypersons who serve as jurors. We leave to the lawyers the responsibility for gathering, sifting, and presenting evidence of the facts. Prototypically, our trial judge sits with a jury. Although many cases fall outside the jury entitlement, and in many others the parties waive it, jury trial remains the presumptive norm in American civil and criminal procedure. The judge who presides over this jury court mediates between the lawyers and the jurors. The judge superintends the lawyers as they adduce their competing versions of the facts and the law for the jurors, and the judge instructs the jurors on the standards they should apply to determine the dispute.

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