The history of the law of evidence might usefully be compared to the elephant encountered by the blind men. One's impressions
will tend to reflect which part of the beast one has examined. Because of the substantial scope of evidentiary regulations, touching
on both the admissibility and persuasive power of all sorts of proofs, as well as serious gaps in our historical knowledge about how
trial and pretrial investigations were conducted in the sixteenth and seventeenth centuries and why the process came, at that time,
to rely almost exclusively on the live testimony of witnesses in open court, it is exceedingly difficult for us to assemble a
comprehensive and accurate picture.
Barbara Shapiro has set out to trace the development of the evidentiary rules regulating the trial and pretrial conduct of criminal
law decision makers. She has canvassed much of this territory brilliantly. If there is a serious criticism to be made it is that she has
concentrated her attention on several areas where there is a substantial body of information but has not ranged broadly enough
over the entire field to provide us with a clear picture of what the beast really looks like.
Professor Shapiro pursues three major themes. The first involves "the way in which religious and philosophical notions concerning
the nature of truth and the appropriate method of attaining it affect legal conceptions of evidence and proof," (p. xiii) most
particularly in the development of the beyond reasonable doubt standard for conviction in criminal cases. The second concerns the
migratory nature of a variety of evidentiary concepts including the reasonable doubt standard (affecting both petit and grand jury
proceedings) and the probable cause requirement (influencing arrest, search and seizure decisions, and preliminary hearings). The
third considers the impact of Roman-canon ideas on Anglo-American evidence doctrine.
In truly impressive fashion Professor Shapiro traces the intellectual roots of the beyond reasonable doubt standard. She
convincingly demonstrates the substantial influence of seventeenth and eighteenth century Protestant doctrines concerning the
nature of persuasive proof in religious matters as well as philosophical analyses from Locke, the Scottish Common Sense
philosophers and others concerning the problem of epistemology. Her mastery of the religious and philosophical sources is
impressive and she makes a strong case for the centrality of these bodies of literature to legal developments.
What her analysis does not encompass is the political and social forces that were at work at the same time. While Locke and
Protestant theology provided a critical set of intellectual options one needs to look deeper to understand why they were taken up
by the law. From the middle of the seventeenth century to at least the end of the eighteenth the petit jury was a social
battleground. Before it were fought the great political contests of the era as translated into criminal charges like those against the
alleged Popish plotters, the seven Anglican bishops who refused to read James II's second Declaration of Indulgences, the political
agitator John Wilkes, and the radical members of the London Corresponding Society including Hardy and Horne Tooke. John
Beattie has describe the late 1600's as "the heroic age of the English jury" from which "trial by jury emerged as the principle
defense of English liberties." (1988, 214) These trials and the struggles they epitomized led judges, lawyers, and politicians to
debate how and on what evidence jury decisions should be made. The principles taken from Locke and the divines appear to have
met the needs of a society searching for standards that would empower jurors to curtail royal and judicial authority while extending
reasonably reliable protection to the property and persons of the elite.
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Perhaps the strongest section for BEYOND REASONABLE DOUBT AND PROBABLE CAUSE is that devoted to the grand
jury. Here the politics of the seventeenth century is effectively integrated with doctrinal insights. Professor Shapiro convincingly
argues that the grand jury was an unstable institution troubled by epistemological and related institutional uncertainties. On the
conceptual level there was no clarity about what decisional standard the grand jury should apply. If it were to mimic the petit jury
and call for proof beyond a reasonable doubt the result would be two trials instead of one. If it were to rely on mere suspicion it
could not provide any realistic protection against improper accusations. There did not appear to be any philosophically or legally
satisfactory stopping point between these two. On the institutional level this problem translated into the question whether the grand
jury served any purpose that was not already adequately met by other criminal law decision making mechanisms.
The instability identified by Professor Shapiro led to an oscillation in grand jury practice between positions staked out by Whigs and
Tories in the 1600s and 1700s. The Whigs' conception of grand jury practice emphasized the protection of citizens from the King
and his hand-picked judges. The Whigs called for grand jury inquiries that were the functional equivalent of petit jury trials and
insisted that grand jurors carefully weigh all the evidence that came before them. This view seemed to gain ascendancy when
London grand juries in the 1680s rejected the Crown's efforts to prosecute the Earl of Shaftsbury and Stephen Colledge. The
Tories, on the other hand, urged that grand juries act swiftly and with a minimum of evidence so as to insure the rapid indictment
of malefactors. The compromise that was eventually adopted was referred to as the "prima facie case" standard and required
grand juries to consider only the prosecution's evidence and to measure it by something approximating the beyond reasonable
doubt test. This compromise while perhaps intellectually satisfying because of its reliance on well understood evidentiary concepts
did not end the debate between the warring camps. The prima facie case principle was eventually eroded as concerns about crime
led to the abandonment of a rule that required the prosecution to try its case twice and convince two sets of jurors. The instability
inherent in the grand jury's situation has, in fact, never been resolved and an increasing number of jurisdictions have gravitated
toward the Tory approach.
Professor Shapiro is at pains to delineate the migration not only of the reasonable doubt standard but the idea of probable cause as
it grew first in the arrest context and later in the areas of search and seizure, and preliminary hearing. She traces the evolution of
the notion from its roots in the rhetorical traditions of ancient Greece and Rome through its development in the Roman- canon
system of evidence. She succeeds in demonstrating its instability and thereby helps explain its historical alternation between crime
control and individual liberty orientations.
This third section of the book, however, suffers from a lack of unity and focus. There are too many institutions and standards
reviewed to provide anything like the single well-focused argument presented in the first half of the text. The absence of historical
evidence concerning the actual behavior of the justices of the peace leaves a gap in the argument that Professor Shapiro has a
hard time filling. Here and in the next section the work seems to cry out for more primary document based information concerning
the criminal courts. The absence of such material leaves an uncomfortably speculative and partial picture.
Professor Shapiro's final chapter, explores Roman-canon contributions to Anglo-American evidence doctrine. It, like the preceding
section, is arranged as a survey. This structure dilutes the focus of the work and weakens its argument. There are just too many
rules canvassed in too brief a span of pages. Again, analysis would have been strengthened if more primary source material had
been utilized. Detailed examination of court proceedings like those described in the OLD BAILEY SESSION PAPERS might
have
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broadened Professor Shapiro's understanding of the nature and reasons for the growth and change of evidence rules. Professor
Shapiro's heavy reliance on the cases recorded in STATE TRIALS gives her too constricted a view and denies her an
appreciation of the importance of counsel to the development of a range of evidentiary requirements, especially the hearsay rule.
Be all this as it may, Professor Shapiro has written an exciting book. At its best, it lays bare the ancient tensions that still rule a
number of our criminal law adjudicatory mechanisms and gives us a convincing portrait of the intellectual pedigree of some of our
most cherished principles. Understanding the connection between our institutions, continental traditions, philosophical theory, and
religious doctrine is of substantial value. It is a critical step along the road to a comprehensive understanding of the evidentiary
system that governs over courts.
Reference
Beattie, John. 1988. "London Juries in the 1690s." In TWELVE GOOD MEN AND TRUE, eds., J.S. Cockburn and Thomas A.
Green. Princeton: Princeton University Press.
