The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments

TLDR: In this article, the authors consider the potential costs of normative shortcuts to procedural reform; institutional differences between the two Western legal families capable of affecting the fact-finding style are quite considerable.

Abstract: Inspiration for procedural reform is increasingly sought in the legal thesaurus of foreign countries. In their search for new solutions, lawyers are prone to focus almost exclusively on normative aspects of foreign arrangements, trying to ascertain whether they hold promise of advantages over domestic law. But this understandable deformation professionelle is not without its costs: the success of most procedural innovation depends less than lawyers like to think on the excellence of rules. More than in the private law domain, perhaps, the meaning and impact of procedural regulation turn on external conditions most directly on the institutional context in which justice is administered in a particular country.2 If imported rules are combined with native ones in disregard of this context, unintended consequences are likely to follow in living law. And while some of these consequences can turn out to be a pleasant surprise, others can be very disappointing. Those contemplating to combine common law and civil law approaches to factfinding should be especially sensitive to the potential costs of normative shortcuts to procedural reform; institutional differences between the two Western legal families capable of affecting the factfinding style are quite considerable. In criminal procedure, a few good lessons have already been learned about problems that arise when factfinding arrangements from one family are incorporated into the institutional milieu of the other. Here experience has shown how easily an imported evidentiary doctrine, or practice, alters its character in interaction with the new environment.3 Even textually identi-

Full text

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MIRJAN DAMASKA
The
Uncertain
Fate
of
Evidentiary
Transplants:
Anglo-American
and
Continental
Experiments
Whenever new laws
are
framed
it
is imperative
that
they
should
be consonant
with
the
institutions of
the
state
to which
they
are
destined.!
Inspiration for procedural reform
i~
increasingly sought
in
the
legal
thesaurus
offoreign countries.
In
their
search for new solutions,
lawyers
are
prone to focus almost exclusively on normative aspects of
foreign arrangements,
trying
to
ascertain
whether
they
hold promise
of
advantages over domestic law.
But
this
understandable
deforma-
tion professionelle
is
not
without
its
costs:
the
success of most proce-
dural
innovation depends less
than
lawyers like to
think
on
the
excellence of rules. More
than
in
the
private law domain, perhaps,
the
meaning
and
impact of procedural regulation
turn
on external
conditions - most directly on
the
institutional context
in
which jus-
tice is administered
in
a
particular
country.2
If
imported rules
are
combined
with
native ones
in
disregard of
this
context,
unintended
consequences
are
likely to follow
in
living law. And while some of
these
consequences
can
turn
out
to be a
pleasant
surprise, others
can
be very disappointing.
Those contemplating to combine common law
and
civil law ap-
proaches to factfinding should be especially sensitive to
the
potential
costs ofnormative shortcuts to procedural reform; institutional differ-
ences between
the
two Western legal families capable ofaffecting
the
factfinding style
are
quite considerable.
In
criminal procedure, a few
good lessons
have
already been
learned
about problems
that
arise
when
factfin,ding
arrangements
from one family
are
incorporat~d
into
the
institlltional milieu of
the
other.
Here
experience
has
shown how
easily
an
imported evidentiary doctrine, or practice,
alters
its
charac-
ter
in
interaction
with
the
new environment.
3
Even textually identi-
MIRJAN
DAMASKA
is
Sterling Professor
of
Law, Yale University
..
1.
Giambattista
Vico, On the Study, Methods
of
Our Time 65 (Elio Gianturco
trans!. 1965). . . .
2.
I do
not
mean
to disparage
the
contribution
ofthe
entire
cultural ecosystem
in
establishing the meaning
of
rules.
But
this
contribution, is less palpable
than
that
of
institutions which
are
specifically designed to operate
in
the
administration ofjustice.
3. A classic example is
the
misfortunes
of
the
transplanted
English criminal
jury
on
the
Continent. The reaction to reforms introduced by
the
new
Italian
Code ofCrim-
inal Procedure furnish another, more recent illustration.
839

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cal rules acquire a different meaning
and
produce different
consequences
in
the
changed institutional setting. The music of
the
law changes, so to speak,
when
the
musical
instruments
and
the
players
are
no longer
the
same. .
In
civil procedure,
the
mixing of factfinding
arrangements
has
been urged somewhat less frequently,4 despite
the
fact
that
the
con-
trast
between
the
continental
and
Anglo-American institutional con-
text
is
here
somewhat reduced: continental civil litigation contains
pronounced "adversarial" features. Nevertheless,
important
differ-
ences
of
procedural ecology remain,
and
their
importance for
the
suc-
cess of evidentiary
transplants
should
not
be ignored. Among
the
many factors responsible for
the
contrast
between
the
Anglo-Ameri-
can
and
continental factfinding style,
three
stand
out
sharply
in
im-
portance:
the
different court organization,
the
varying temporal
organization ofproceedings,
and
the
unequal
allocation ofprocedural
control between
the
court
and
the
parties.
5
Mainly responsible for
the
contrast,
these
three
factors
are
the
most likely suspects for imposing
constraints on
the
transplantation
of evidentiary
arrangements
across
the
two
great
families ofWestern procedure.
The influence of
the
first factor on evidence law is widely appreci-
ated:
the
relation between Anglo-American admissibility rules
and
the
jury
trial
is regularly invoked
in
explaining
the
distinctive char-
acter
of common law evidence. Since
the
risks of evidentiary
trans-
plants
undertaken
in
ignorance of
this
factor
are
thus
relatively
minor, I shall refrain from commenting on them.
6
The impact
of
the
second contextual factor -
the
different temporal organization of
proceedings -
has
also often been observed. Some commentators
have referred to
the
opposition between "continuous" common law
factfinding
and
"episodic" continental proof-taking
as
"the
grand
dis-
criminant"
that
sets
the
two families of civil procedure
apart.
7
It
is
true
that
the
prerequisites for introduction of
the
concentrated style
in
continentaljustice
and
the
episodic
in
common law procedure have
been insufficiently explored.
s
But
because some experience
with
4.
This is not to say
that
there
were no
mutual
borrowings. Thus, for example,
the
widely influential
Austrian
reforms
that
introduced a version
of
party
examina-
tion to
the
Continent were openly borrowed from England. See Pekelis, "Legal Tech-
niques
and
Political Ideologies,"
41
Mich.
L.
Rev. 665, 679 (1943). More recent
and
interesting
mixtures
of
common law
and
continental
arrangements
exist
in
Japan.
5.
Although historically intertwined, these factors
are
analytically distinct.
6.
The perils of such
transplantation
also recede because
the
civil
jury
entitle-
ment
seems to be weakening
in
most Anglo-American countries. England,
the
country
of
the
jury's origin,
has
almost completely abolished
the
civil
jury
in
the
1930's. See
Administration
of
Justice (Miscellaneous) Provisions Act.
7.
Kaplan, "An American Lawyer
in
the
Queen's Courts: Impressions of English
Civil Procedure," 69
Mich. L. Rev. 821, 841 (1971).
8.
As
an
example, observe a neglected condition for
the
introduction
of
concen-
trated
trials
of
the
Anglo-American genre into continental civil justice.
If
trials
are
to
continue to be exclusive suppliers ofinformation to
the
court, they
must
be thoroughly

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EVIDENTIARY
TRANSPLANTS
841
these
difficulties
has
already
been acquired,9 I
shall
leave
the
impact
of
this
factor on evidentiary
transplants
to one side
here
as
well.
What
remains
for consideration, then, is
the
third
factor -
the
unequal
allocation ofresponsibility for procedural action between
the
court
and
the
parties.
The
unforeseen effects on
the
factfinding style
of
tinkering
with
this
factor seem to
me
most
in
need of elucidation,
and
the
remarks
that
follow will be directed solely to them.
I.
CONTROL
OVER
F
ACTFINDING
ACTION
Before examining
these
effects, however, a quick reconnaissance
is
in
order
to
map
the
differences between Anglo-American
and
conti-
nental
procedure
in
allocating control over factfinding. These differ-
ences
reach
the
high
point
in
criminal procedure: while
the
continental criminal
judge
takes
the
lion's
share
of factfinding activ-
ity,
in
Anglo-American
lands
procedural action is to a much
greater
extent
in
the
hands
of
the
lawyers for
the
prosecution
and
the
de-
fense.
But
this
difference, quite
dramatic
in
criminal cases, is greatly
reduced
in
civil litigation. The
main
reason is
the
curtailment
of
the
continental judge's
mastery
over
the
life of
the
civil action - includ-
ing
its
factfinding component. This
curtailment
deserves a closer
look, because
it
is neglected
in
comparative procedure.
lO
To begin with,
the
monopoly power ofcontinental civil
parties
to
frame factual issues imposes more serious limits on
the
court's in-
dependent
investigative activity
than
do
the
parameters
of
prosecutorial charges
in
criminal
matters.
It
is considered axiomatic
that
the
civil
judge
should
not
be
permitted
to extend
his
factual in-
quiries beyond
party
allegations. He is also bound by
their
stipula-
tions
and
admissions - even
if
he
has
reasons to doubt
that
facts
underlying
these
"agreements" really exist.
But
even
in
regard
to
facts alleged by
and
in
issue between
the
parties,
the
continental civil
judge
is
not
entirely free to
pursue
factual inquiries on
his
own:
his
prepared. One possibility for continental systems to consider is to follow
native
crimi-
nal
procedure
and
entrust
an
official agency
with
the
performance
of
preparatory
tasks.
Another possibility is to charge lawyers for
the
parties
with
these
tasks.
But
this
second
alternative
calls for changes
in
the
work
habits
and
remuneration
pat-
terns
of
continental
trial
attorneys. They
must
become
habituated
to detective work to
a
greater
degree
than
at
present. They
must
also be
prepared
to concentrate for a
substantial
time on a single case,
instead
of
working simultaneously for several
clients.
9.
On
experiments
in
Germany
with
the
so-called
Stuttgart
Model, see Rudolf
Schlesinger
et
aI., Comparative Law 438-40 (5th ed. 1988).
10.
In
what
follows I
talk
about continental civil procedure
as
if
it
were a single
system.
Even
under
the
Roman-canon ius commune,
this
was
not
the
case, however:
internal
differences existed among continental jurisdictions, including
unequal
con-
ceptions
of
what
precisely
pertains
to
the
officium judicis. These
internal
differences
are
far
greater
today.
Even
so, for
the
sake
of
contrast
with
common
law
jurisdictions
(themselves subject to
internal
variation
in
the
degree
of
judicial activism), one
can
still usefully
talk
about "continental" approaches to procedural control.

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proof initiative is
in
most jurisdictions seriously circumscribed. He
cannot call fact-witnesses
motu proprio, for example,
and
documents
submitted to
him
are
often accorded a conclusory probative effect -
irrespective of
what
he
might
think
about
the
relation of
the
facts
stated
in
these
documents to
the
real
state
of
the
world.
ll
Even
his
powers of witness interrogation
can'
be laced
with
constraints.
In
most civil law countries,
the
parties
state
propositions of fact
about
which
they
want.
witnesses to be examined,
and
the
judge
is re-
stricted to
asking
only questions
relating
to
these
propositions.l
2
These
strictures
against
independent
judicial inquiries
are
in
themselves capable ofdeflating
the
inquisitorial impulse of
the
conti-
nental
civil judge.
But
a
further
diminution of
his
factfinding energy
results
from systemic
barriers
erected
against
the
collection of evi-
dence
~nd
the
gathering
of information. Generally speaking, conti-
nentallegal
systems manifest a far
greater
!;lensitivity
in
civil
than
in
criminal procedure to
the
protection of values
that
complicate
the
search
for
the
truth
and
inevitably reduce
the
completness of
the
data-base
for
the
decision.
In
many
countries of continental Europe,
for example, testimonial privileges
are
much more encompassing
than
any
known
in
the
common law orbit.
13
Witnesses
are
under
no
obligation to engage
in
factual inquiries
in
prepararation
for
their
courtroom testimony.14 Comparatively
striking
also is
the
fact
that
continental jurisdictions
are
more
reluctant
to
use
the
civil
party
as
an
informational resource
than
is
the
case
with
common law coun-
tries.
In
most continental jurisdictions, a litigant's
statement
is not a
recognized
means
ofproof of
his
allegations.
In
others,
judges
are
ex-
pected to
order
formal interrogations of a
party
only
as
a
means
of
last
resort
-
if
other
evidence
appears
insufficient.
15
The reluctance of continental civil procedure to employ informa-
tion supplied by persons
with
interest
in
the
cause of action is ex-
plained
in
historical
terms
-
that
is,
as
a precaution
against
spurious information
and
perjury temptation.
But
ever since testimo-
11.
An
example
are
"authentic acts," such as those produced by
the
continental
notariate.
12. Illustrations
of
this
mode of interrogation
that
are
still
val~d
can
be found
in
Mauro Cappelletti & Joseph Perillo, Civil Procedure
in
Italy 223 (1965).
13.
In
jurisdictions
that
follow
the
example
of
Austrian
and
German
legislation, a
witness
can
refuse to testify
if
testimony could dishonor
him
or a person
with
whom
the
witness
stands
in
a close personal relationship. Testimony can also be refused
if
it
is likely to cause direct pecuniary da!Jlage to
the
witness or a person close to him.
For
details
of
these
and
other privileges
in
Germany, see Leo Rosenberg & Karl Heinz
Schwab,
Zivilprozessrecht 716-19 (13th ed. 1981).
14.
For'
Germany, see Schlosser, "Internationale Rechtshilfe
und
rechtsstaat-
licher Schutz der Beweispersonen," 94 Zeitschri{t fiir Zivilprozess 369, 386 (1981).
15. For a general survey, see Jolowicz, "Fact-Finding: A Comparative Perspec-
tive,"
in
D.
L.
Carey Miller &
Paul
R.
Beaumont, The Option
of
Litigating in Europe
133, 138-39 (1993). On
the
"subsidiarity"
of
party
testimony
in
Germany, see Rosen-
berg
& Schwab,
supra
n.13,
at
738-39.

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EVIDENTIARY
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843
nial
disqualifications for self-interest were abolished on
the
criminal
side of
the
docket,
this
old rationale no longer rings
true.
A more
plausible explanation now is
that
in
private
disputes - ordinary civil
lawsuits
are
perceived
as
such -
the
state
should
use
its
power to
coerce information from citizens sparingly. The balancing of
truth-
discovery
interests
against
privacy,
human
dignity
and
similar
val-
ues is
thought
to
mandate
a considerable degree of tolerance - al-
most
an
insouciance, to common law eyes - for
the
incompletness of
evidentiary material. This tolerance is revealed prominently
in
the
still prevailing absence of
the
principle
that
the
disputing
litigants
should disclose to each
other
the
circumstances
relevant
to
the
case:
inter-party
discovery is
quite
undeveloped.
16
But
whatever
the
causes
ofthe
reduced "inquisitiveness"
ofthe
civil process
may
be,
the
reduction induces judges to be less
than
energetic
in
seeking
the
truth.
They seldom
make
use
of
their
powers to dig for information
even
in
those few jurisdictions
in
which
the
court is broadly author-
ized to
take
"investigative measures" whenever
it
feels insufficiently
informed.
17
.
Pari passu
with
the
reduction of
the
court's factfinding activity,
"adversary" polarities
may
make
themselves felt
in
continental civil
procedure. Although witnesses
are
considered "shared" or "common"
to both litigants,
they
are
in
fact more readily associated
with
one or
the
other
side
than
is
the
case
with
the
court's witnesses
in
criminal
actions.
Burden
ofproofquestions
assume
a
greater
importance
than
in
unilateral
official inquiries, so
central
to continental criminal
jus-
tice: each civil
party
bears
probative risks
in
relation to clearly de-
fined issues,
and
the
distribution ofprobative
burdens
is not
blurred
by
the
additional "burden"
assumed
by
the
judge
when
he
conducts
his
independent
factual inquiry. As a result,
the
rudiments
of two
opposing evidentiary "cases"
in
the
Anglo-American
sense
can
be dis-
cerned
in
civil lawsuits.
In
some of
its
aspects, civil factfinding comes
closer to
the
Anglo-American style,
in
which
the
'court supervises
rather
than
participates
in
proof-taking activity.
All
that
has
just
been
said
must
not
obscure
important
residual
differences between
the
continental
and
Anglo-American civil proce-
dure
in
regard
to
the
allocation of procedural
tasks.
18
In
most conti-
nental
jurisdictions,
the
involvment of
the
judge
in
proof-taking
exceeds
that
of
his
common law confrere.
The
former
retains
the
mo-
16. See
Rudolf
Schlesinger et al.,
supra
n. 9,
at
426. A comparative
study
of
the
problem is
that
ofAngelo Dondi, Effettivita dei Provvedimenti Instruttori del Giudice
Civile
(1985).
On
reform proposals for member
states
of
the
European
Union, see Ker-
ameus, "Procedural Harmonization
in
Europe," 43
Am.
J.
Compo
L. 401, 414-15
(1995). .
17.
For
France, see Schlesinger, id. 426 n. 32; Jolowicz,
supra
n. 14,
at
143.
18. Note
that
I
am
neglecting
here
differences
stemming
from different court or-
ganization
and
the
contrast
between episodic
and
concentrated proceedings.

Frequently asked questions

Q1. What are the contributions mentioned in the paper "The uncertain fate of evidentiary transplants: anglo-american and continental experiments" ?

If imported rules are combined with native ones in disregard of this context, unintended consequences are likely to follow in living law. Those contemplating to combine common law and civil law approaches to factfinding should be especially sensitive to the potential costs of normative shortcuts to procedural reform ; institutional differences between the two Western legal families capable of affecting the factfinding style are quite considerable. 

Q2. Why should reformers be greeted with sympathy?

The impetus to seek inspiration for reform beyond national borders should also be greeted with understanding and sympathy; since dissatisfaction with existing procedures is so widespread. 

Q3. What is the effect of the importation of evidence on the use of privileges?

if contacts between lawyers and witnesses became more frequent and routine, and the pains of hostile cross-examination more widely known, the use of privileges would greatly increase. 

Q4. What is the effect of the alien mode of developing evidence?

After the alien mode of developing evidence has been introduced, old attitudes to evidence are likely to linger, causing dislocations and a measure of disorientation in factfinding practice. 

Q5. What is the likely consequence of incorporating a competitive proof-taking method in civil law systems?

A further likely consequence of incorporating .. a competitive proof-taking method in civil law systems is the emergence of strong pressures to expand the factfinding role of litigants' counsel prior to actual proof-taking in court. 

Q6. What is the reason for the increased role of the judge in proof-taking?

At least in those common law jurisdictions that still use the civil jury, the enhanced role of the judge in proof-taking would also be vulnerable to criticism on the ground that it reveals the judicial assessment of the trustworthiness of evidence to impressionable amateur adjudicators.