678
THE GREEN BAG
are to be hopelessly clogged or turn use lessly round and round in repeated trials and retrials — that, in proportion as the substantive rights of the parties become more complex, the method of adjudicating upon them should become more simple. The development of codification or of stat utory regulation in this direction, the espe cially strenuous assaults repeatedly made upon the "hearsay rule," the distinctively anomolous feature of the entire system, are not without significance. These are gropings for relief; an instinctive protest against an intolerable situation. Evidently, how ever, these efforts have not proved even palliative, much less adequate to the need. Signs are not lacking that the present mul tiplicity in the "rules" of evidence, each implying possible error and consequent re versal, under the "presumption of preju dice from error" theory, is felt to be a very serious impediment to the dispatch of busi ness, and, what is much more serious, to the doing of justice. The leading thinker on this subject has not stated the present situ ation of the law of evidence a shade too strongly. "In part the precepts of evidence con sist of many classes of exceptions to the main rules — exceptions that are refined upon, discriminated, and run down into a nice and difficult attenuation of detail, so that the courts become lost, and forget that they are dealing with exceptions; or perhaps are at a loss to say whether the controlling principle is to be found in the exception or in the general rule, or whether the exception has not come to be erected into a rule by itself. In part, our rules are a body of con fused doctrines, expressed in . ambiguous phrases, Latin or English, half understood, but glibly used, without perceiving that ideas, pertinent and just in their proper places, are being misconstrued and misap plied." (Thayer, Prelim. Treat., 512.) The entirely reasonable sentiment is widely felt and freely expressed, through authoritative sources, that the administra tion of justice, more especially of criminal justice, is in reality breaking down in
America, if, indeed, it cannot be more truly said that it has already done so — with a train of attendant evils entirely obvious. N'o insignificant part in this situation, as has been said, is played by the "rules" of evidence; particularly by the fact that the working out of just administration in a trial court of fine shades of distinction between matters of degree, about which equally in telligent men might easily differ in opinion, is made the subject of a rule, in the ob servance of which each party has rights on appeal, regardless of the relation which the question raised bears to the merits of the controversy or to the substantial justice of the result. It inevitably follows that re versals follow rulings on such points of administration with such frequency as to amount for many litigants to a denial of justice, and to most a deferring of it. The multiplicity of these rulings introduces no inconsiderable burden upon a trial judge. It permits and almost invites the desperate advocate of a worthless cause, in lieu of any substantial trial on the merits to prepare himself for hearing by an elaborate study of minute distinctions. These constitute the basis of requests for rulings so cunningly adjusted in a blending of too much with too little that, as is hoped, the trap frequently escapes the notice of an overworked trial judge, with all the troubles of a trial term on his hands. The trap may then be suc cessfully sprung, at leisure, with the aid of the "presumption of prejudice from error" as a sort of necessary trigger, in an appellate court. Such a system lends itself readily to constant repetitions of the process, until worthy suitors find it easier to forego their claims and mobs go on "lynching bees" rather than put the country to an enormous expense with no result except to demon strate the inefficiency of the present system which is to the lynchers sufficiently obvious already. It is not without importance in connec tion with the future of the law of evidence that probably no portion of this badly de
