Evaluation of Evidence: Pre-Modern and Modern Approaches

"Should the law restrain the freedom of the trier of facts to determine the value of evidence in criminal cases? This question intensely preoccupied nineteenth-century lawyers. On the continent of Europe, the triggering event for mulling it over was the challenge which the French revolutionary idea of free evaluation of evidence presented to traditional legal proof rules of Roman-canon origin. In England, responsible for stirring the debate was Jeremy Bentham's scathing critique of the subjection of fact- finding activity to legal regulation. Although his primary target was rules on the admissibility of evidence, he also lambasted rules of weight. In the battle over the fate of the ancien regime's justice system, which relied on legal proof rules, the debate became politicized and acrimonious. As the conceptual scaffolding for this debate, continental legal theorists posited a stark contrast between two fact-finding schemes - one rejecting and the other adopting legal constraints on the fact-finders' assessment of the value of evidence. English jurors were placed in the former and continental professional judges in the latter scheme. In this Manichaean opposition, English jurors appeared completely free from legal constraints, while continental judges seemed like robotic implementers of Roman-canon rules on the quantity and quality of evidence, required to arrive at factual findings irrespective of their personal assessment of evidence. This opposition was accepted as true in common law countries and became the dominant account of how factual findings were made on the continent during the ancien regime"--