4 ms·

> Judges have an independent duty to pursue the truth of the substantive legal matter Do they? That sounds pretty inquisitorial, rather than adversarial, to me

by sjy 7y ago

> Judges have an independent duty to pursue the truth of the substantive legal matter Do they? That sounds pretty inquisitorial, rather than adversarial, to me.

wahern 7y ago
Yes, they do: http://25thandclement.com/~william/Evidence/614.pdf http://25thandclement.com/~william/Evidence/614.pdf My Evidence professor was a Virginia judge and after I submitted the above assignment[1] he actually pulled me aside before class and asked if it was original; that is, he asked me to vouch that I hadn't copied it or cheated. He seemed particularly impressed with my historical research, presumably my citations at footnotes 1 and 2. The concept wasn't new to him or even controversial--it's well established, at least as a background principle in legal procedure--but the history is esoteric. I told him that he really screwed me. Yes, it was my own research.[2] But by implying that I did such a great job he took away my motivation to keep doing that kind of research and putting in the study time. I have ADHD--though only diagnosed years later--and there are an infinite number of things I could immerse myself in. I think I ended up getting a low B or C in that class. :( Imposter syndrome is a powerful motivator and he temporarily cured me of it. [1] Every student was assigned to write a note for one or two of the Federal Rules of Civil Procedure, and they'd be published online as study aids for everyone else in the class. [2] I was up for like 16 hours powering through Westlaw and Google Books. Google Books had at the time, but for some reason no longer, an incredibly rich archive of old legal treatises and other material, like 17th and 18th century reporters from England and Ireland.[3] I'm pretty sure I kept a copy of the Wigmore treatise pdf as I later bought the domain name lextex.org with the idea to typeset it using TeX. In fact, I still want to do that and have kept renewing the domain name. I thought I had uploaded it somewhere under public_html/ but I can't find it now.... [3] On one or two occasions I found original reporters that contradicted the case reports used in legal treatises and historic judgments, including our textbooks. In several more I found potentially substantive discrepancies. In the age where judges orally recited their judgments and commercial reporters transcribed and published them, errors were to be expected. It's interesting, though, that sometimes reporters published outright contradictory legal reasoning and judgments. Legal scholars don't seem to even consider this as a possibility. It's kinda irrelevant for judges and lawyers, though, because all that matters is what the most recent authoritative court says, regardless of any inaccuracies in the cited material.
- sjy 7y ago
  Thank you for the citation. I was not familiar with the Burke quote, or any other support for the view that common law judges have an "independent duty to pursue the truth." I still think this proposition goes too far, as you seem to recognise in footnote 13 of your paper, but I accept that in exceptional cases common law judges can call witnesses. McCormick § 8 (cited in the notes [1] to the FRE) observes that "it is sometimes said that the judge may have a duty to question witnesses, although the exercise of such a duty does not appear to have been enforced by any appellate court decisions." I am not sure there is any support for a duty to call witnesses, except as a device to permit cross-examination by both parties. Even in 1904, Wigmore [2] noted the "strong but subtle tendency to force" judicial questioning "into the background" and referred to Burke's 1794 speech as a "defensive utterance." In the UK and Canada, the courts have explicitly rejected the view of a trial as "a scientific exploration with the presiding Judge assuming the role of a research director," urging a cautious approach to the calling and questioning of witnesses which Wigmore regarded as unduly restrictive [3]. I still think that the absence of a judicial duty to pursue the truth is a key feature of the adversary system, but the justice system as a whole does have a truth-seeking purpose, and exceptional cases may call for exceptional judicial powers. [1] https://www.law.cornell.edu/rules/fre/rule_614 https://www.law.cornell.edu/rules/fre/rule_614 [2] https://archive.org/details/cihm_73411/page/n963 https://archive.org/details/cihm_73411/page/n963 [3] https://www.albertalawreview.com/index.php/ALR/article/download/2406/2395 https://www.albertalawreview.com/index.php/ALR/article/downl...

by sjy 7y ago

> Judges have an independent duty to pursue the truth of the substantive legal matter Do they? That sounds pretty inquisitorial, rather than adversarial, to me.

wahern 7y ago

Yes, they do: http://25thandclement.com/~william/Evidence/614.pdf http://25thandclement.com/~william/Evidence/614.pdf My Evidence professor was a Virginia judge and after I submitted the above assignment[1] he actually pulled me aside before class and asked if it was original; that is, he asked me to vouch that I hadn't copied it or cheated. He seemed particularly impressed with my historical research, presumably my citations at footnotes 1 and 2. The concept wasn't new to him or even controversial--it's well established, at least as a background principle in legal procedure--but the history is esoteric. I told him that he really screwed me. Yes, it was my own research.[2] But by implying that I did such a great job he took away my motivation to keep doing that kind of research and putting in the study time. I have ADHD--though only diagnosed years later--and there are an infinite number of things I could immerse myself in. I think I ended up getting a low B or C in that class. :( Imposter syndrome is a powerful motivator and he temporarily cured me of it. [1] Every student was assigned to write a note for one or two of the Federal Rules of Civil Procedure, and they'd be published online as study aids for everyone else in the class. [2] I was up for like 16 hours powering through Westlaw and Google Books. Google Books had at the time, but for some reason no longer, an incredibly rich archive of old legal treatises and other material, like 17th and 18th century reporters from England and Ireland.[3] I'm pretty sure I kept a copy of the Wigmore treatise pdf as I later bought the domain name lextex.org with the idea to typeset it using TeX. In fact, I still want to do that and have kept renewing the domain name. I thought I had uploaded it somewhere under public_html/ but I can't find it now.... [3] On one or two occasions I found original reporters that contradicted the case reports used in legal treatises and historic judgments, including our textbooks. In several more I found potentially substantive discrepancies. In the age where judges orally recited their judgments and commercial reporters transcribed and published them, errors were to be expected. It's interesting, though, that sometimes reporters published outright contradictory legal reasoning and judgments. Legal scholars don't seem to even consider this as a possibility. It's kinda irrelevant for judges and lawyers, though, because all that matters is what the most recent authoritative court says, regardless of any inaccuracies in the cited material.

sjy 7y ago
Thank you for the citation. I was not familiar with the Burke quote, or any other support for the view that common law judges have an "independent duty to pursue the truth." I still think this proposition goes too far, as you seem to recognise in footnote 13 of your paper, but I accept that in exceptional cases common law judges can call witnesses. McCormick § 8 (cited in the notes [1] to the FRE) observes that "it is sometimes said that the judge may have a duty to question witnesses, although the exercise of such a duty does not appear to have been enforced by any appellate court decisions." I am not sure there is any support for a duty to call witnesses, except as a device to permit cross-examination by both parties. Even in 1904, Wigmore [2] noted the "strong but subtle tendency to force" judicial questioning "into the background" and referred to Burke's 1794 speech as a "defensive utterance." In the UK and Canada, the courts have explicitly rejected the view of a trial as "a scientific exploration with the presiding Judge assuming the role of a research director," urging a cautious approach to the calling and questioning of witnesses which Wigmore regarded as unduly restrictive [3]. I still think that the absence of a judicial duty to pursue the truth is a key feature of the adversary system, but the justice system as a whole does have a truth-seeking purpose, and exceptional cases may call for exceptional judicial powers. [1] https://www.law.cornell.edu/rules/fre/rule_614 https://www.law.cornell.edu/rules/fre/rule_614 [2] https://archive.org/details/cihm_73411/page/n963 https://archive.org/details/cihm_73411/page/n963 [3] https://www.albertalawreview.com/index.php/ALR/article/download/2406/2395 https://www.albertalawreview.com/index.php/ALR/article/downl...