Historical Perspective

The most infamous of the early efforts to improve the law's decisions about what evidence should be admitted and what evidence excluded, or how to weigh the evidence, was that of Hugo Munsterberg, through his book, On the Witness Stand (1908) and in a series of articles and commentary in and about specific trials. Munsterberg mixed sensible data-based propositions with arguments based on less sound data, among them such ideas as the suggestion that psychologists should evaluate witnesses for credibility and then the courts should be guided by the psychologists' assessments. (That is a notion that actually is not uncommon today in some Continental legal systems (see van Koppen and Saks, 2002) but which was and remains anathema to Anglo-American courts.) That Munsterberg had little impact on the thinking of Anglo-American judges and legal scholars is even more understandable considering that he was highly critical of them, and locked horns with the giant of early twentieth-century evidence law, John Henry Wigmore (Magner, 1991). Notwithstanding his disdain for Munsterberg's ideas (Munsterberg, 1908), it is worth noting that Wigmore had a considerable interest in the potential contributions of psychological research and theory to issues of evidence and proof. His book, The Principles of Judicial Proofas Given by Logic, Psychology, and General Experience and Illustrated in Judicial Trials (1913), contained extensive extracts from the psychological literature, and Wigmore reported his own series of 'Testimonial and Verdict Experiments' (Wigmore, 1931, 2nd edn., pp. 536-540). Wigmore himself was quite skeptical about the psychological assumptions underlying some rules of evidence and thought they could be corrected and refined with help from psychological research.

The most explicit and productive program of research to compare the psychological assumptions of evidence doctrine against the facts of human psychology was undertaken at Yale by legal scholar Robert M. Hutchins and psychologist Donald Slesinger. Their collaboration produced a series of studies of the psychological bases of the rules of evidence, in light of what was then known from psychological research, on such topics as spontaneous exclamations (Hutchins and Slesinger, 1928a), memory (Hutchins and Slesinger, 1928b), witness competency (Hutchins and Slesinger, 1928c), family relations (Hutchins and Slesinger, 1929a), state of mind to prove an act (Hutchins and Slesinger, 1929b), state of mind in issue (Hutchins and Slesinger, 1929c), and consciousness of guilt (Hutchins and Slesinger, 1929d). 'In this series, preliminary to experimental attack, the law of evidence is being analyzed in order to make explicit its psychological assumptions, and criticise them in light of those of modern psychology' (Hutchins and Slesinger, 1929e, note 1, p. 13). Their work grew out of a wider vision of law as amateur applied psychology:

For centuries the law has been fumbling with what has only recently become the subject matter of psychology. Lawyers, judges, juries, legislators, and governmental officers have always vaguely known that their task was the prediction and control of human conduct.

In performing this task they built up an empirical technique of regulation called the law, in every branch of which, from contracts to crimes, appear assumptions as to why and how people act in given situations Out of this technique of regulation has grown a rough and ready science of behavior which crystallized unfortunately before the dawn of modern psychology. (Hutchins and Slesinger, 1929e, pp. 13-14)

Despite its lively beginnings, interdisciplinary study of evidence fell dormant in the mid-twentieth century, perhaps due to the general retreat of legal scholarship from social realism toward process models of justice (Monahan and Walker, 1996, ch. 1). By the late 1960s the field was 'moribund' as the few scholars writing about evidence relied on traditional doctrinal analysis with 'no overarching critical theory to give it life' (Lempert, 1986, p. 439). What Richard Lempert has called 'the new evidence scholarship' began to emerge in the 1970s as experts in other fields, particularly statistics, epistemology, and psychology 'discovered' the law of evidence and began using the tools of their disciplines to address important evidentiary issues. Major symposia at Boston University (Symposium, 1986) andCardozo Law School (Symposium, 1991) brought legal scholars together with experts from other fields to discuss problems of evidence, and the area continues to be active.

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