Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the Anglo-American Law of Evidence

781 Pages·1993·1.77 MB·English

by  Barbara J. Shapiro

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Page iii
"Beyond Reasonable Doubt" and "Probable
Cause"
Historical Perspectives on the Anglo-American Law of
Evidence
Barbara J. Shapiro
Page iv
University of California Press
Berkeley and Los Angeles, California
University of California Press, Ltd.
London, England
© 1991 by
The Regents of the University of California
Library of Congress Cataloging-in-Publication Data
Shapiro, Barbara J.
"Beyond reasonable doubt" and
"probable cause" : historical
perspectives on the Anglo-American law
of evidence / Barbara J. Shapiro.
p. cm.
Includes bibliographical references
and index.
ISBN 0-520-08451-9
1. Evidence, CriminalGreat
BritainHistory. 2. Evidence,
CriminalUnited StatesHistory. I.
Title.
KD8371.S5 1991
345.41¢06dc20
[344.1056] 91-16753
CIP
Printed in the United States of America
9 8 7 6 5 4 3 2 1
Chapter 1 is based on " 'To a Moral Certainty': Theories of Knowledge
and Anglo-American Juries, 16001850," which appeared in 38
Hastings Law Journal (© 1986 Hastings College of the Law).
The paper used in this publication meets the minimum requirements
of American National Standard for Information SciencesPermanence
of Paper for Printed Library Materials, ANSI Z39.48-1984.
Page v
To Barbara Wolfinger and Reba Soffer
Page vii
Contents
Acknowledgments ix
Preface xi
1. The Trial Jury and the Evolution of the Doctrine of 1
"Beyond Reasonable Doubt"
2. The Grand Jury and the Instability of Legal Doctrine 42
3. Species of Probability and Institutional Migration 114
4. Species of Probability and Doctrinal Borrowing 186
5. Conclusion 244
Appendix 253
Notes 257
Bibliography 331
Index 355
Page ix
Acknowledgments
My interest in the history of law has been focused on the connections
between law and other aspects of English intellectual life. My first
efforts appeared as "Law and Science in Seventeenth-Century
England" (Stanford Law Review [1969]) and were elaborated and
extended in Probability and Certainty in Seventeenth-Century
England: A Study of the Relationships between Natural Science,
Religion, History, Law and Literature (Princeton, 1983). Some of the
legal themes of that book were pursued further in "'To a Moral
Certainty': Theories of Knowledge and Anglo-American Juries,
16001850" (Hastings Law Journal [1986]), which forms the basis of
Chapter 1.
Chapter 2 on grand juries was aided by a research fellowship from the
Huntington Library in San Marino. The research and writing of
Chapters 3 and 4, which deal with the concept of probable cause and
its migration through several pretrial procedures, the connections
between Romano-canon and Anglo-American legal traditions, and the
concept of circumstantial evidence, were assisted by generous grants
from the Guggenheim Foundation, the University of California,
Berkeley, Humanities Fellowship program, the University of
California, Berkeley, Research Committee, and by sabbatical support
from the University of California, Berkeley. A month's residence at
the Rockefeller Foundation's Bellagio Conference Center provided
idyllic writing conditions. I am grateful to all these institutions.
I would also like to thank the librarians of the Huntington Library, the
Williams Andrews Clark Memorial Library, the Yale Law

Page x
Library, and Boalt Hall Law Library. The Hastings Law Journal has
generously granted permission to use some previously published
materials.
Martin Trow, Sheldon Rothblatt, and Janet Ruyle of the Center for
Studies in Higher Education have been generous in providing library
and word-processing assistance. Such assistance has also been
provided by the Research Committee of the University of California,
Berkeley, and by Kirsten Anderson, Rebecca Kidd, and Claudia
Myers Pearce of the Department of Rhetoric. Norma Landau read the
manuscript with great care and made many helpful suggestions.
My greatest debt is to Martin Shapiro who has read, edited,
commented on, and suffered with the manuscript in all its forms. This
book would never have been completed without his assistance and
support.
Page xi
Preface
Given the long and rich tradition of legal and historical scholarship,
there has been surprisingly little work devoted to the history of the
Anglo-American law of evidence. Although much recent scholarship
in English legal history has focused on various aspects of the criminal
justice system, relatively little attention has centered on the
evidentiary aspects of that system. My study builds on the more
general work of others, such as John Beattie, John Langbein, and
Thomas Green, but seeks to look specifically at evidentiary elements
in several phases of the criminal justice system.
1 My attention will be focused on the evidentiary doctrines which
over time have been associated with arrest, pretrial examination, and
grand jury indictment, as well as with the evidentiary doctrine
associated with the trial jury.
The history of the Anglo-American law of evidence has for the most
part centered on the jury largely because "evidence" as taught in law
schools refers almost exclusively to the trial jury and because the
foremost scholars of the history of the law of evidence were
themselves leading law teachers of and treatise writers on evidence,
for example, James Thayer and John Wigmore.2 And precisely
because law teaching and writing have so closely linked evidence to
the jury, they have concentrated very heavily on admissibility. In this
sense the jury is a black box. We cannot know what goes on inside it,
and, indeed, it is often viewed as somewhat unseemly to inquire.
Moreover, at least in criminal cases, what comes out of it is a general
verdict of guilt or innocence, and it is altogether forbidden to inquire
into the pieces and processes that