Page:Harvard Law Review Volume 12.djvu/113

93 THE PRESENT AND FUTURE OF EVIDENCE. 93 the right of litigating parties in all cases. " As the rules of evi- dence," said Chief Justice Shaw, in 1848,^ " are made for the secur- ity and benefit of parties, all exceptions may be waived by mutual consent." Allowing that this is overstated, it may still be insisted that the old conceptions of a jury's incapacity, and of the need of so much exclusion, were overstrained, and that they are largely inapplicable to modern juries. But I will leave aside any question of changing the jury system, and assume that it is to be in no degree restricted. Undoubtedly, at least in my opinion, it will long continue, and should continue, to a greater or less extent So long as it does, we must have a law of evidence, i. e., a set of regulative and excluding precepts, enforced by the presiding officer of the meeting, viz., the judge. In exercising this function the court must continue to apply certain great principles, such as these: (i) That the jury must, so far as possible, personally see and hear those whose statements of fact, oral or written, they are asked to believe ; (2) that witnesses must, so far as possible, testify orally, publicly, under strong sanctions for truth-telling, and that both parties should have full opportunity to examine or cross-examine under the court's super- vision ; (3) that in the case of writings the jury must, so far as possible, personally and publicly inspect such as they are expected to act upon ; (4) that whatever is said or shown to the jury, or privately known to them, bearing on the case, must be said, shown, or stated publicly, in presence of the court and of all parties concerned; (5) that the execution of solemn documents must be clearly shown, and that they must be faithfully construed according to the written terms ; (6) that the jury should not be obliged or permitted to listen to what will unnecessarily delay the case, or too much tend to confuse or mislead them ; (7) that the jury should be aided by the opinions, on matters of fact, of persons specially quali- fied, wherever they are likely to be materially helped by it; (8) that the court should have power to review and set aside the verdict of the jury, in order to prevent gross injustice, and secure conformity to the rules of law and the requirements of sound reason, but in no case substituting their own judgment for that of the jury, and always exercising a merely restraining power. If a few comprehensive, fundamental principles like these, derived from experience and at the bottom of our present system, be fol- lowed, construed, and applied in a liberal way, and the application 1 Shaw V. Stone, i Cush. 228, 243.