Re:Prosecutors Are Shaping Privacy Law
by sjy on Sunday June 16, 2019 @09:41AM
(#20195390)
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.
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
[2] https://archive.org/details/cihm_73411/page/n963
[3] https://www.albertalawreview.com/index.php/ALR/article/downl...