The Law of Evidence: Privacy and Disclosure

Abstract

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.