Barbara J. Shapiro - Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the Anglo-American Law of Evidence
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Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the Anglo-American Law of Evidence
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Devoted to the history and development of two fundamental concepts of Anglo-American law, this study documents the degree to which these key legal doctrines have evolved over time, and the extent to which they reflect a migration of evidentiary principles.
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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 345.4106dc20 [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 "Beyond Reasonable Doubt"
1
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.
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