Blackstone's Tower: The English Law School - College of Social ...

The Quest For a Core
The Law of Evidence is a rather disorderly, technical and unappealing
subject that is especially puzzling to non-lawyers. By focusing
on it, legal scholars may have inadvertently obscured the potential
interest of the broader field of legal proof to outsiders. This is an
example of academic law not living up to its potential. 5
However, in the work of Bentham, Wigmore and other pioneers
and in "the new evidence scholarship" there is nonetheless a great
wealth of literature of general interest, even if it has been underexploited
within legal education. Furthermore, the logic of judicial
proof and the Law of Evidence by and large share a common body
of key concepts, and there is a good deal of illumination to be had
from the experience and learning that have been built up around
such concepts as hearsay, corroboration, presumptions, circumstantial
evidence, prejudicial effect, and standards of proof, despite
the narrow focus and the tendency to exaggerate the importance
of the Law of Evidence as a body of rules.
Another caveat is that "the new evidence scholarship" is a genuinely
multi-disciplinary enterprise. Law may have a lot to offer, but
equally it has already learned a great deal from other disciplines
and could learn even more. Psychologists have told us about the
reliability of confessions and different kinds of testimony, especially
identification evidence and testimony of child witnesses in sex
abuse cases. 6 Forensic science has made great advances in such
areas as DNA, the analysis of traces, and the use of modern technology
in police investigation. Students of linguistics and semiotics,
such as Umberto Eco, have illuminated aspects of evidence discourse.
Jonathan Cohen, a philosopher, has provoked a major
series of debates in law, statistics, psychology and diagnostic medicine
about Baconian or inductive probability. Probability theorists
are trying to fill a gap in our understanding of how the probative
force of evidence might be systematically assessed and combined.
Developments in computer applications promise to make very significant
contributions to problems of processing and marshalling
masses of evidentiary data; and though some of us are sceptical
about the likely contribution of the computer to decision-making,
every sceptical move is seen as a challenge to be surmounted by
more refined analysis. 7 Last, but not least, David Schum himself, a
psychologist, who has taught engineers, intelligence analysts, and
law students among others, has contributed as much illumination
to law as he has gleaned from it.
Finally, Schum rightly points to the analytical complexities of
arguments about evidence in legal and in other contexts. But there
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