NCJ Number
87760
Date Published
1981
Length
21 pages
Annotation
Neither oral nor documentary evidence should be regarded as primary by being admissible to the exclusion of the other or by attaching special weight to it (apart from public documents).
Abstract
The German and French justice systems give primacy to documentary evidence while English law makes oral evidence primary. The credibility of report evidence depends on two variables which cannot often be simultaneously maximized. The reliability of reports of past events can best be assessed by calling their author to give oral evidence so as to expose him/her to unexpected questions. Their correspondence can best be ensured through an accurate record of the events as they occur or soon after, whether in the form of written documents, photographs, tape recordings, film, or other media. The forms of evidence which best comply with both requirements are (1) real evidence at its best: the observation of some object by the judge in a case in which the correspondence of what is observed can be guaranteed by other means, and (2) oral evidence by a witness who made a contemporary or near-contemporary record of the events at issue, with the contents being subject to examination. These forms of evidence, however, are often not available. In their absence, it is unsound for a legal system to opt in principle either for reliability at the expense of correspondence and security or vice versa. The most rational course under such a circumstance is to place testimony and documentary evidence on an equal level. Twenty footnotes are listed.