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A Proof-oriented Model of Evidence Teaching
ANDREW PALMER*
The “new evidence scholarship”, which has revitalised evidence
research and teaching in North America in the last thirty
years, still seems to
have had very little impact in Australia.1 The key
feature of this new scholarship is a transformation of evidence “from a
field concerned with the articulation of rules
to a field concerned with the
process of proof”,2 “a shift away from the
rules of evidence towards the process of proof and the way inferences should be
drawn from a mass of
evidence”.3 In Australia one
can point to scholars4 such as Richard
Eggleston,5 David Hodgson,6
David Hamer,7 and Andrew
Ligertwood,8 as having published work which falls
somewhere on a spectrum that ranges from actively engaging with the new evidence
scholarship,
to applying its insights, to sharing its concerns. For most
published Australian evidence scholarship, however, Lempert’s description
of evidence as a “field concerned with the articulation [and critique] of
rules” remains apt.9 Given the minimal impact of
the new evidence scholarship on evidence research in Australia, it would be
surprising if the new evidence
scholarship had had a significant impact on the
teaching of Evidence in Australian law schools, and a cursory examination of a
range
of Australian evidence teaching texts confirms an almost exclusive focus
on the rules of evidence, and a corresponding neglect of
the processes of
proof.10
Undeterred by my own lack of published
“new evidence” work, however, I have recently been involved with
others in a redesign
of the evidence courses at the University of Melbourne in a
manner which entailed a shift in focus away from the rules of evidence,
and
towards the process of proof.11 The particular
orientation which the redesign described in this article took was to attempt to
develop students’ skills in
factual analysis; the aim, then, was to adopt
an approach first championed by Wigmore in the Science of Judicial
Proof,12 and subsequently expounded by Anderson and
Twining in their Analysis of Evidence.13 This is
a proof-oriented model of evidence teaching, in the sense that the emphasis is
on teaching students how to go about proving
the facts in issue in litigation.
The “new evidence scholarship” is a broad
church,14 however, and there are any number of ways in
which an Evidence course could be redesigned along “new evidence”
lines.15 The particular redesign discussed in this
article is not, therefore, being put forward as the last word in Evidence
courses (it is
not even the last word in Evidence courses at the University of
Melbourne, which have continued to evolve since the completion of
this article),
but it is hoped that it might stimulate some thought about the ways in which we
teach Evidence in Australian law schools.
The article falls into two main parts:
the first describes the redesign in some detail; the second deals with some of
the objections
which might be made to it.
STEPS TOWARDS A PROOF-ORIENTED MODEL OF EVIDENCE TEACHING
Evidence in the LLB at the University of Melbourne is generally taken as a
final year subject, taught over one semester in two or
three streams. Prior to
its redesign, it might more accurately have been called “The Law of
Evidence” than “Evidence”,
because its focus was almost
exclusively on the rules of evidence. That said, the course was not
entirely traditional in its approach. In particular, it used a problem- based
methodology,
rather than focussing on the reading and analysis of appellate
judgments,16 but its focus was nevertheless almost
entirely on the exclusionary rules. The high enrolment and low staff/student
ratios in the
LLB course did not make it an ideal environment for
experimentation, however.
A better environment for experimentation with the
introduction of a proof-oriented teaching model was provided by a new law
program,
the Juris Doctor, or JD. This is a fee-paying graduate law degree where
the intake is limited to 24 students. The introduction of
the JD at the
University of Melbourne was used as an opportunity to trial the proof-oriented
model of teaching evidence, before introducing
it into the LLB. At the time of
writing, the new Evidence course has been taught four times on the JD, and twice
on the LLB. What
follows, then, is a description of the JD Evidence course,
followed by a discussion of the differences in approach required when
the proof
model was introduced into the mass-enrolment LLB Evidence
course.17
The JD Evidence Course
The JD is taught over two years, in six trimesters, in each of which the students are required to take four subjects. Evidence is taught in the first trimester, along with Legal Research and Method, Criminal Law, and Procedure. This placement is in direct contrast with the majority of LLB courses, where Evidence (or Litigation) is typically taken in the final or penultimate year. An obvious consequence of its placement in the JD is that students do not bring much experience or knowledge of the law, or bodies of legal rules, to Evidence. A less obvious consequence, is that students take to later subjects the awareness of, and sensitivity to, factual issues, that they develop in Evidence: “how would I prove that” has apparently become a question students learn to ask of the elements of the causes of action they encounter in later year subjects.18 The discussion of the Evidence course falls into three parts, dealing respectively with teaching methods, course content, and assessment.
Teaching Methods
There are twelve classes in the course, each of three hours duration; typically these take place once a week. The course is divided into 12 units, corresponding to these classes. Students are provided with course materials, which together with the text Principles of Evidence,19 constitute the primary teaching resources for the subject. The materials for each unit fall into two distinct parts:
The materials are also made available via the
Evidence Subject Homepage which includes downloadable versions of all these
subject
materials (excluding some article and case extracts), and online links
to some of the listed reading.
There is, however, no attempt to
systematically cover the material contained in each unit through lectures.
Rather, “mini-lectures”
on selected topics within the unit are
interspersed with the discussion of problems designed to highlight some aspect
of the material
under discussion, or to provide an opportunity to apply a rule
which has just been expounded. The problems are typically taken from
reported
cases, often from the leading cases in the area, with students not being told
how the court decided the case until after
they have completed their own
analysis (the aim in approaching a case in this way is to provide the students
with the basis for a
critique of the court’s decision because they form
their own views about how the case should have been decided before being
exposed
to the court’s actual decision).
The usual method of dealing with
problems is to require students to discuss the problem with their immediate
neighbours first (ie
student-selected small group discussion), before the
problem is discussed by the group as a whole, led by the teacher. The reason
for
the initial small group discussion is to ensure that each student has the
opportunity to actively engage with the problem through
debate and dialogue with
a peer. This may then provide them with the confidence to contribute to the
discussion of the problem by
the group as a whole, but even if it does not, it
ensures that all students have the opportunity to discuss the problem, and that
no student is able to sit back and passively rely on the contributions of
others.
Most of the problems are sufficiently short that they can be done in
class whether or not students have prepared them prior to coming
to class, but
where the problem is particularly lengthy, preparation will be required.
Sometimes, for example, in order to expose
students to the primary materials out
of which evidential arguments must be constructed, a problem will be based on
lengthy extracts
from records of interview, depositions, or the examination and
cross-examination of witnesses on a voir dire. Such problems have
to be prepared
in advance. Given the non-systematic nature of the coverage of material in
class, however, an onus is also placed
on the students to complete the readings
set out in the materials, and to raise any points of obscurity or interest in
class.
Course Content
As noted above, the course is divided into 12 units.
The final week is a revision unit and covers no new material. The law of
evidence
is covered in eight weeks, in units 4 to 11.20
Obviously covering the law of evidence in only eight weeks requires a certain
amount of squeezing; I will discuss the justifications
for, and acceptability
of, doing this in the second part of the article. It is, however, the first
three units which are the crucial
ones for present purposes. These first three
weeks of the course are basically a “law-free zone”, focusing only
on the
skills of factual analysis, with evidence being analysed without any
regard to its admissibility. Before describing the course content
further, it
may be useful to define precisely what it is that is meant by “factual
analysis”.
Anderson and Twining offer a useful definition, turning on
the distinction between “legal” and “factual”
analysis:
Legal analysis ordinarily requires analysis of the facts, but customarily this analysis is limited to selection and variation and to identification of facts needed and lines of investigation to be pursued. Which of the given facts are likely to be (or should be) perceived as important by the court? How can the facts be structured to make it clear that the case at hand falls clearly within the rule for which the student or practitioner contends? What additional facts are necessary to determine the principles to be applied? Although facts are crucial in law analysis, the facts are ordinarily treated as given and are used to manipulate and test the scope and applicability of legal rules.
Factual analysis is different. It is more familiar to practitioners than to students. The skills necessary are those required to organize and analyze a mass of raw data – the evidence actually or potentially available – and to determine the inferences that can properly be drawn from that data in relation to the ultimate facts in issue in a case. To illustrate the distinction, factual analysis ordinarily assumes that the applicable legal principles are given. Agreed jury instructions for a trial, an indictment, or the settled pleadings would be examples. From these the lawyer can determine the ultimate factual propositions that must be proved if the plaintiff or prosecutor is to win. The analytic and reasoning task for the lawyer then becomes determining whether the factual data available as evidence support inferences that can be ordered to frame a compelling argument that the elements of the ultimate propositions have or have not been proven according to the applicable standard of proof. Although the principles of logic are involved in both legal analysis and factual analysis, the application of these principles in factual analysis differs from their application in legal analysis.21
It is, then, the skills of factual analysis which the first three units of
the course aim to teach students. The reason for introducing
factual analysis
before admissibility is to prevent the exclusionary rules dominating
student thinking. In this author’s experience, if the exclusionary
rules
are introduced first, students can tend to be blinkered by the question of
admissibility in a way which prevents them from
both thinking creatively about
the ways in which they might attempt to use a particular item of evidence, and
thinking critically
about whether the rules help or hinder the trial process.
Indeed, once students know the exclusionary rules, they can too quickly
rule
evidence out of their consideration by assuming that it will be inadmissible.
The rules of evidence are deferred, then, until
after the students been exposed
to the principles of proof, and when they are introduced they are represented as
being of secondary
importance to the “main process”: that of using
evidence as part of the process of attempting to prove or disprove a
case.
Indeed, the first assessment task (currently worth 25% of the marks for the
course) requires the students to analyse a brief
of evidence without any
consideration of admissibility issues at all.
Even in the admissibility
units, the focus on proof is maintained, with the problems consistently
requiring students to both construct
case theories and to see items of evidence
in the context of an overall case. The reading of appellate decisions is
generally avoided
because in such cases the “facts” have already
been “found”; approaching cases on the basis that the
“facts”
themselves are not neutral, and are actually the main point
of controversy between the parties, sometimes appears to be a startling
concept
for students who take Evidence near the end of their degree, as the LLB students
do. For the JD students, having this awareness
from the start will hopefully
inoculate them against the fallacy that “the facts” are indeed
“facts”.
Teaching for the three proof units of the course
currently revolves around a progressive analysis of a hypothetical homicide
brief,
R v Smith, which is loosely based on the facts in Wilson v
R [1970] HCA 17; (1970) 44 ALJR 221. Homicide was chosen because of its inherent
fascination, and because it allowed for the presentation of a complex body of
information,
including a variety of different kinds of witnesses, a variety of
different kinds of evidence (including things like hearsay and
propensity
evidence), and a variety of possible outcomes. The reading materials for these
units are drawn from a variety of sources
of varying degrees of
difficulty.22
The first of the three proof units is
called “Introduction to the Analysis of Evidence”, and the
objectives for the unit
are that students completing it should:
The students’ analysis of the Smith brief begins
with the preparation of a chronology. The ability to organise a mass of
information according to time of occurrence
is an obvious and basic
pre-requisite to the development of both investigative strategies and a theory
of the case, which is essentially
an extended factual allegation which satisfies
the proof requirements of the cause of action or criminal offence in question,
or
which rebuts the same.23 On the investigative side,
the chronology reveals gaps in the information currently available to the
student, which suggests areas
requiring investigation. On the case theory side,
the chronology provides the materials out of which a “story”, or
case
theory, can be constructed. The mere sequence of events is likely to
suggest relationships between facts which might not otherwise
be apparent. The
students “homework” is to return the following week with a narrative
of what happened, and the reasons
for believing that that is what happened, in
the form of the kind of address they would like, as prosecutors, to be able to
deliver
to a jury at the close of the trial.
The second week –
“Analysing Individual Items of Evidence” – is, as its name
suggests, concerned with the
microscopic analysis of the individual items of
evidence contained in the brief. Its objectives are that students completing it
should:
– articulate, and represent, any chain of reasoning which shows information to be relevant (or not).24
The first of these objectives involves familiarising the
students with the main classes of evidence, according to both the source
of the
evidence and the relationship it bears to the facts in
issue.25 The second is concerned with developing
students’ abilities to construct arguments about evidence. The aim of
teaching students
to be able to “represent” chains of reasoning is a
pre-cursor to the evidential charts dealt with in the third week of
the course.
An important component of this unit is an emphasis on the role of
generalisations in inductive reasoning.26 The
underlying premises of this unit are that fully articulating the reasoning which
makes evidence relevant also exposes the weak
links in a chain of
reasoning,27 and that being able to do this is useful
in relation to the evidence being adduced both by oneself and by one’s
opponent.
If the second unit was about pulling the brief to pieces, then the
third unit, “Organising Complex Masses of Evidence”,
is about
putting it back together again. Its primary objective is that students
should:
The
fundamental objective, then, is to help students to develop the ability to
organise the complex masses of mixed evidence which
are typical of litigation.
Three main methods are offered: the narrative method, the outline method and the
chart method. The key
point that each of the methods has in common, is that
students are required to identify what it is that they will have to prove in
order to succeed in the litigation (ie the facts in issue, and the subset of
that, the facts genuinely in dispute), and to explain
how they will go about
proving it.
The narrative method,28 which is the
one which comes most easily to students, really just requires them to explain in
prose what they have to prove, and
how they will prove it. The outline method is
a more rigorous version of the kinds of outlines sometimes used by
lawyers.29 The outlines students are required to
develop are essentially a nested series of factual propositions descending from
the facts in
issue to the actual sources of evidence, setting out all
intermediate inferences and necessary generalisations. The chart method
taught
in the course is a modified version of that described by Anderson and Twining in
Analysis of Evidence, which is itself based on the method expounded by
Wigmore in The Science.30 The major drawback to
Wigmorean charts – as anyone who has ever seen one will know – is
that they are forbidding to look
at, and all but impossible to decipher. This
obviously limits their usefulness. The charts which students are taught to
prepare in
the course instead rely on modern flow charting or argument mapping
software which permit students to include text in the
chart.31 This means that a chart can include all of the
information contained in an outline which – at least for those with a
preference
for information to be presented in a more visual form – can be
an aid to the comprehension of the case.
All of the methods serve the same
fundamental purposes. In particular, they enable the student to identify all of
the elements of
the charge and any defences; the evidence available to prove
each such element; any gaps in the evidence; as well as the areas which
are not
in dispute, and those where there is a conflict of evidence. By doing this,
students will be able to identify the evidence
they need to adduce from their
own witnesses, and should be able to identify appropriate aims for the
cross-examination of their
opponent’s witnesses.
The Assessment
As Ramsden has pointed out, from “our students’ point of view, assessment always defines the actual curriculum”.32 It was essential therefore that the new assessment actually set out to assess whether students had acquired the skills in factual analysis specified in the objectives. It also seemed a good idea to try to move towards a form of assessment more closely modelled on the kind of task lawyers have to perform in practice. As Gibbs has argued in relation to the transferability of skills:
It is necessary to bring elements of the world of work into the classroom, to confront students with situations and problems which resemble those they will eventually have to tackle, and to allow them to learn the necessary skills in work-like contexts, tackling the problems in the way they will eventually have to tackle them outside academia.33
In the legal context, this is often referred to as a “clinical” approach to legal education.34 According to Amsterdam, such an approach includes the following characteristics:
It was fairly clear that the
traditional law school final examination did not have any of these
characteristics, not least because
of the time limitations inherent in the
format, which make it almost impossible to present problem situations which are
“concrete”,
“complex” and “unrefined”. Even
just in terms of admissibility, “spotting issues” in such an
examination, while no doubt a difficult task, is very different from the task
demanded of practising lawyers. Where a single examination
problem might be
crammed with an enormous number of issues – and the students will know
from experience that this is going
to be the case – in a legal file the
admissibility issues are likely to be spread over numerous, often lengthy,
witness statements
or other documentary material, and the lawyer will have no
idea in advance of how numerous or complex the issues are likely to be.
For the
appellate lawyer, the task of finding an issue on which to base an appeal may be
even more challenging, requiring the close
scrutiny of an enormous number of
pages of transcript.
So what kind of realistic task might the students be
set? It is suggested that the main evidential tasks required of a lawyer fall
into the following categories:
The first of these seemed too removed from the trial and the issues of admissibility to provide an appropriate assessment task; this left a choice between the other three tasks. Romero has suggested that it is the third and fourth tasks which should be assessed in an Evidence course which uses a clinical method:
Instead of asking a student what [evidentiary] objection might be made, the
clinical method requires the student to make the objection.
Instead of asking
what foundation is required to admit an item of evidence, the clinical method
requires the student to lay the foundation
by calling the necessary witness ...
and then asking the necessary questions.36
Romero’s description of what can actually be tested using this
clinical approach, however, suggests a course still dominated
by the law of
evidence (what objections, what foundations for admission etc). Moreover, the
highly performative nature of the fourth
task in particular – the
mechanics of actually adducing evidence – makes it difficult to teach and
assess in a mass-enrolment
subject (so therefore unsuitable for transfer to the
LLB), and arguably means that it is better left for specialist advocacy courses.
In any case, the quality of a student’s trial presentation can only be as
good as the quality of their pre-trial preparation:
technical proficiency in the
examination of witnesses, for example, is fairly empty if the student has not
first identified, through
detailed analysis of the case, the points that they
need to make through their own witnesses and in the cross- examination of their
opponent’s.
This left the second task: analysing the evidence in
preparation for trial. To assess this, students are provided with a brief of
evidence as a take-home examination. The brief is based on a real brief (with
any identifying details changed), and students are
assigned a particular
standpoint such as counsel for the prosecution or counsel for the defence. The
proceedings are criminal for
two reasons; first, because a brief in a civil
proceeding would not test the students’ ability to apply a number of
important
rules of evidence; and secondly, because the criminal law is in any
case the only body of law which JD students have all been taught.
As with most
real life briefs, the brief provided to the students both contains a mass of
irrelevant material, and fails to cover
every point of significance.
Students are required to write an Advice on Evidence, which is essentially a
counsel’s analysis of the evidence in a case, and
therefore a realistic
task of the kind with which lawyers will be confronted in
practice.37 The instructions given to students are,
however, fairly specific. In particular, students will be instructed to perform
a combination
of the following tasks (the precise combination will depend, inter
alia, on the role assigned to students):
Such a form of assessment obviously places a premium on factual
analysis. The fact that the brief, like any brief, is unlikely to
cover every
possible issue of relevance also means that students are required to think
creatively about what kind of evidence they
might need to adduce in addition to
that contained in the brief. In relation to admissibility, this form of
assessment also provides,
in many ways, a more challenging and realistic task
than a traditional examination. Because students are provided with a large body
of material, admissibility issues are simply not flagged in the way that they
almost inevitably are in a three hour examination.
Instead they really have to
be spotted, and can easily be missed.
As already noted, as well as the final
assessment described above, students are also required to complete an earlier
piece of assessment
(worth 25% of the marks for the subject). The main
differences between the final assessment and the first assessment task are that
the earlier assessment task does not require students to consider the
admissibility of any of the evidence analysed; and that the
earlier assessment
task is usually done in “syndicates” of four, whereas the final
assessment is done by students on
their own.
Students taking this form of
assessment have exhibited a high degree of sensitivity to factual issues, as
well as a degree of savviness
and sophistication. For example, asking the
students to consider whether they would be likely to call the accused to testify
requires
them to take into account matters such as the extent of inconsistency
between any prior statements made by the accused, the degree
to which the
conduct of the defence is likely to expose the accused to prejudicial
cross-examination about prior criminality, and
whether the defence is one which
relies on facts about which only the accused could give evidence. The fact that
such a question
looks forward to the trial seems to lead students to a better
understanding of the issues surrounding testimony from the accused
than does a
backward-looking question about whether the asking of particular questions or
the giving of particular evidence had resulted
in the “shield” being
lost.
The LLB Evidence Course
Transferring the proof model to the mass-enrolment environment of the LLB proved far less difficult than had been anticipated. The course content described above was, with some simplification and reduction of reading material, replicated in the LLB. The same general teaching approach was also taken so that the classes comprised a similar mixture of mini-lectures and problems. The problems were also approached in the same way as on the JD; that is, the problem would first be expounded to students, who would then be given the opportunity to discuss it with whomsoever they happened to be sitting near, before being invited to contribute to the public discussion of the problem by the class as a whole. Smith was retained as the vehicle for teaching the same three units on proof that had been taught in the JD. A slightly simpler methodology for analysing the brief was, however, developed. This involved the following main steps:
In effect, this involved teaching the second and
third units in a slightly different order, although the end
“product”
was essentially the same. The assessment used in the JD
was also transferred, with some significant modifications to the LLB. The
new
assessment, developed by my co-teacher, Dr Andrew Kenyon, involves the
online presentation of a brief in a criminal proceeding,
under the name
“Evidence Briefcase”. The material includes statements from
potential witnesses, transcripts of police
interviews, photographs of an alleged
crime scene, and audio and video files, such as a videotape of a police
interview with the
accused person. The web-based format aims to create a
learning environment which simulates legal practice. Students are able to make
and store their own notes about the potential evidence, and to communicate with
each other and with the teachers through an online
forum (which has been used
extensively). Students are given a set period (for example, a week) to complete
an Advice on Evidence
of the kind described above in relation to the JD
assessment. During this period, the Briefcase software also captures a certain
amount of data in relation to each student’s use of and interaction with
the brief, which provides some measure of protection
against cheating.
There
was an extensive evaluation program of the introduction of the project. The
evaluation included an online survey of students,
which achieved an 80% response
rate and provided detailed quantitative and qualitative data. This evaluation
will be developed by
Andrew Kenyon into an academic article, but it is notable
that 89% of students replied “yes” or “to some extent”
to the question: “Evidence Briefcase better assessed my learning to date
in this subject than a problem or essay-style question
in a traditional law
exam”. Only 11% replied “no” to this question. The overall
response was consistent with the
views of the examiners that the analysis of a
brief of evidence and the requirement to complete an advice on evidence were a
better
method of assessing Evidence than a traditional three hour
examination.
While Briefcase was being trialled, however, and then awaiting
approval as the sole assessment for students in Evidence, students
were also
required to complete a final examination. The examination took the format of
what might be called a “mini-brief”,
or perhaps more accurately, a
summary of a brief. As with the other forms of assessment, a substantial
proportion of the marks for
the examination were allocated to factual analysis.
Nevertheless, none of the evidence teachers involved regarded this as the ideal
form of assessment for the subject, given the difficulty of digesting, and then
analysing, such a large amount of information in
so short a space of time.
Although, the answers produced were generally of a good standard given the
difficulty of the task –
so that the marks awarded suffered no drop in
comparison to previous years – there was a degree of student
dissatisfaction
with the form of assessment. Indeed, the corollary of the
results of the Briefcase evaluation reported above, are that an examination
in
this form would not have been regarded by students as an equally satisfactory
form of assessment to the kind of assessment represented
by the Briefcase
project.
TWO OBJECTIONS TO A PROOF-ORIENTED MODEL OF TEACHING EVIDENCE
While numerous objections could no doubt be made to the teaching model described above, I intend to deal with just two of them: that there is no room in an Evidence course for factual analysis, and that the development of skills in factual analysis is appropriately left to specialist courses.
There is No Room for Factual Analysis
Like most other subjects, Evidence often feels
overcrowded: too many topics, not enough time. This is particularly true when
Evidence
is taught over one semester – as it is at Melbourne – or is
incorporated into a larger subject such as Litigation. With
so many topics
already crammed in, and so many important ones possibly already left out, how
can room be made for additional material?
The answer to this objection –
if there is one – is perhaps that it is never possible to teach students
all of the rules of evidence anyway, and that the drawing of any line
between the essential and the inessential is a fairly arbitrary
process,
determined as much by the number of teaching weeks available as anything
else.39 Although the Council of Legal Education’s
list of the topics which have to be taught in a university Evidence course in
order
for it to be recognised for the purposes of professional
admission40 might appear to impose breadth of coverage
requirements on a course, it is perhaps worth pointing out that this list says
nothing
about the amount of class time which has to be devoted to each topic.
Teachers are, in any case, given the option of abandoning the
list and teaching
“topics of substantial equivalence in breadth and
depth”;41 this flexible alternative requirement
clearly leaves a great deal of discretion in the hands of individual teachers.
With these thoughts in mind, Evidence teachers might feel sufficiently
emboldened “to slaughter the dragon
‘coverage’”,42 and to so reduce the
depth and/or breadth of their coverage of currently taught topics in order to
make room for material on factual
analysis.43 But the
fact that coverage can be reduced is not in itself sufficient reason to
do so: the case for the inclusion of material on factual analysis within an
Evidence
course must still be made.
Factual Analysis belongs in Specialist Courses
A second objection to a proof-oriented model of
teaching evidence is that factual analysis is already, and adequately, and
indeed
appropriately, dealt with in specialist subjects such as advocacy, trial
practice, or other clinical courses: that being so, there
is no need to include
factual analysis in Evidence. What follows are some reasons for believing that
factual analysis might well
be sufficiently important to warrant a place in the
compulsory and quasi-compulsory core of subjects which all students are required
to complete,44 and for believing that the appropriate
place for it in that core is in an Evidence course.
First, any list of the
skills required of lawyers is bound to include skills in factual
analysis.45 These skills are generally rated by the
legal profession as very important to the practice of
law.46 Given that Evidence is a subject required for
admission to practice (but not, generally, for the award of a law degree), it
does
not seem unreasonable that an Evidence course might make some attempt to
provide students with the skills they will need in practice.
Furthermore,
whereas the law of evidence has a limited sphere of operation –
applying only in courts, and in practice, not even in all of them – the
skills of factual analysis are equally applicable in jurisdictions where the
rules of evidence do not apply at all (such as administrative
tribunals), or are
rarely, or only partially, applied in practice (such as most civil proceedings
or the Magistrates’ Court).
Restricting the contents of
“Evidence” to the law of evidence does nothing to prepare students
for practice in jurisdictions
such as these.
Factual analysis is not only
central to litigation, however; it is also an important component of any career
which requires the marshalling
and evaluation of the evidence and arguments for
competing claims. Factual analysis thus fits the definition of a
“transferable
skill”, of relevance in a wide variety of employment
situations. The checklist of transferable skills compiled by Gibbs et
al, for
example, includes “information gathering”, which consists of skills
such as “locating information sources,
evaluating sources and data,
extracting relevant information, interpretation of data, presentation of
data”;47 in short, factual analysis. That factual
analysis is a transferable skill is significant, given the high proportion of
law graduates
who will ultimately pursue a career outside the legal profession.
A second reason for including factual analysis in Evidence is that if a
course in “Evidence” is to live up to its label,
then it should
include a consideration of evidence as evidence, and not just an analysis of
that evidence from the point of view
of
admissibility.48 This is because the question of
admissibility is only one aspect of the evidential analysis required as part of
trial preparation,
and it is most certainly not the most important
aspect. Before the question of admissibility even arises, a lawyer must carry
out a number of tasks which require
some analysis of the evidence currently
available to him or her. In the early stages of litigation, a lawyer may be
required to develop
investigative strategies based on the information presented
to him or her by a client.49 At subsequent stages the
lawyer might be required to draft pleadings or other documents containing
factual allegations.50 Closer to, and during a trial,
the lawyer will have to prepare opening and closing addresses and plan the
examination and cross-examination
of witnesses.
All of these tasks require
the development of a theory of the case, and they require a detailed analysis of
all of the evidence available,
or potentially available, to the lawyer. Part of
that process of preparing for trial – but most decidedly only part
of the process – is a consideration of the admissibility of the items of
evidence which the lawyer or his or her opponent is
likely to attempt to lead.
But a lawyer can only carry out this analysis if he or she has first identified
this evidence, and this
evidence can only be identified when the lawyer’s
case theory has been developed, and the likely case theory of the opponent
considered.51
A third reason for including factual
analysis in an Evidence course is that, in this author’s experience at
least, it can be
difficult for students to understand the purpose and operation
of the rules of evidence when they are divorced from the process of
proof.
Indeed, teaching admissibility without teaching proof can arguably be likened to
teaching someone the road rules without also
teaching them how to drive. Like
the road rules, the question of admissibility only has meaning when one bears in
mind the underlying
objective: that one is attempting to get from point A to
point B. In the case of evidence, the journey from A to B is obviously the
aim
of proving one’s case by means of evidence; like driving, this too is
subject to certain restrictions and obstacles, and
like driving those
restrictions and obstacles only have meaning as a component of a larger process
with its own objectives.
Moreover, there are a number of exclusionary rules
whose scope and operation depend on the purpose for or manner in which the
evidence
is being used. These rules do not prohibit categories of information,
but specific uses of information.52 This is most
obviously true of the hearsay and tendency and coincidence rules, but it is also
true of the rules regulating the use
of opinion and credibility evidence. Unless
students are able to analyse the way in which these kinds of evidence are being
used
– which depends on their skills in factual analysis – they will
be unable to determine whether or not the evidence is
admissible. In other
words, a greater emphasis on factual analysis will develop an improved capacity
to deal with questions of admissibility.
A fourth reason for including
factual analysis in an evidence course, is that just as an emphasis on factual
analysis can enhance
students’ ability to apply the rules of evidence, so
can it open the door to the introduction of critical insights. Kathy Mack
has,
for example, recently described an Evidence course in which a focus on the
“fundamental evidentiary questions of relevance
and the logic of
proof” is used as a vehicle to explore issues of diversity and “to
investigate how we think and why
we think a certain way, and to expose
unacknowledged assumptions, beliefs and idea”.53
Close attention to the way in which we reason about, and from, evidence is thus
a powerful tool for exposing prejudices, biases and
assumptions embedded in the
way we think; to take a simple and obvious example, a defence of the relevance
of sexual history evidence
is likely to founder when the generalisations upon
which the relevance of such evidence depend are exposed to view.
CONCLUSION
The shift towards a more proof-oriented model of teaching Evidence is now well entrenched. Its fundamental aim has been to increase students’ skills in factual analysis, such skills being important to the practice of law, transferable, and essential to a proper application of many of the exclusionary rules of evidence. The change in approach has gone hand in hand with a change to the assessment, so that students are now presented with a task much more akin to that which they are likely to encounter in practice, namely the analysis of a brief of evidence in a criminal proceeding and the completion of an advice on evidence based on that analysis. Anecdotally, students have reported that the focus on factual analysis has improved their general thinking and arguing skills; more formal evaluation has confirmed that students are satisfied that the new assessment provides a better measure of their abilities than the assessment it replaced.
* Senior Lecturer, Law School, University of
Melbourne; Barrister, Victorian Bar. I would like to acknowledge the helpful
comments made
by my wife Madeleine, by my colleagues Andrew Kenyon and Ian
Malkin, by the anonymous referees, and by the Editor, on drafts of this
article;
responsibility for the views expressed is, of course, my own.
© 2003
(2002) Legal Educ Rev 109.
1 For a general overview of the “new evidence scholarship” see J Jackson, Analysing the New Evidence Scholarship: Towards a New Conception of the Law of Evidence (1996) 16 Oxford Journal of Legal Studies 309; as Jackson notes, the phrase “new evidence scholarship” derives from R Lempert, The New Evidence Scholarship: Analyzing the Process of Proof (1986) 66 Boston University Law Review 439.
2 Lempert, supra note 1.
3 Jackson, supra note 1.
4 The names which follow are not intended to be exhaustive!
5 See R Eggleston, Evidence, Proof and Probability 1 ed (London: Weidenfeld and Nicolson, 1978); R Eggleston, The Probability Debate [1980] Criminal Law Review 678; R Eggleston, Evidence, Proof and Probability 2 ed (London: Weidenfeld and Nicolson, 1983); R Eggleston, Focusing on the Defendant (1987) 61 Australian Law Journal 58; R Eggleston, Wigmore, Fact-finding and Probability [1989] MonashULawRw 21; (1989) 15 Monash University Law Review 370; and R Eggleston, The Philosophy of Proof (1991) 65 Australian Law Journal 130.
6 See D Hodgson, Probability: The Logic of the Law—A Response (1995) 15 Oxford Journal of Legal Studies 51; D Hodgson, The Scales of Probability: Probability and Proof in Legal Fact-finding (1995) 69 Australian Law Journal 731; and D Hodgson, The Mind Matters: Consciousness and Choice in a Quantum World (Oxford: Clarendon Press, 1991).
7 See D Hamer, The Civil Standard of Proof Uncertainty: Probability, Belief and Justice, (1994) 16 Sydney Law Journal 506; D Hamer, The Continuing Saga of the Chamberlain Direction: Untangling the Cables and Chains of Criminal Proof [1997] MonashULawRw 5; (1997) 23 Monash University Law Review 43; D Hamer, “Chance would be a fine thing”: Proof of causation and quantum in an unpredictable world [1999] MelbULawRw 24; (1999) 23 Melbourne University Law Review 557; and D Hamer, “Hoist with his own petard”? Guilty Lies and Ironic Inferences in Criminal Proof (2001) 54 Current Legal Problems 377.
8 See A Ligertwood, Australian Evidence 3 ed (Sydney: Butterworths, 1998) ch 1 and Australian Evidence: Cases and Materials (Sydney: Butterworths, 1995) ch 2.
9 Supra note 1.
10 See, for example, PK Waight & CR Williams, Evidence: Commentary and Materials 5 ed (North Ryde, NSW: LBC Information Services, 1998); M Aronson & J Hunter, Litigation: Evidence and Procedure 6 ed (Sydney: Butterworths, 1998); S McNicol & D Mortimer, Evidence 2 ed (Butterworths Tutorial Series, Sydney: Butterworths, 2001); and my own Principles of Evidence (Sydney: Cavendish Publishing Australia, 1998). This is not intended to suggest that these texts or the courses which rely on them are narrowly “black letter”; it is not necessary to focus on the processes of proof to be innovative or exciting: see, for example, J Hunter & K Cronin, Evidence, Advocacy and Ethical Practice: A Criminal Trial Commentary (Sydney: Butterworths, 1995), and J Hunter, Teaching Plumbing with Periclean Ideals: Should it be done? Can it be done? Advocacy and Courtroom Scholarship (1996) 30 Law Teacher 330. Ligertwood’s texts, supra note 8, clearly do pay some attention to the processes of proof; and see also K Mack, Teaching Evidence: Inference, Proof and Diversity [2000] LegEdRev 2; (2000) 11 Legal Education Review 57, discussed in more detail infra, text accompanying note 53.
11 This ongoing process of redesign has been a collaboration with my teaching colleagues, Dr Andrew Kenyon & Dr Jeremy Gans.
12 JH Wigmore, The Science of Judicial Proof: As Given in Logic, Psychology and General Experience, and Illustrated in Judicial Trials 3 ed (Boston: Little, Brown and Company, 1937); see also Wigmore, The Principles of Judicial Proof: As Given by Logic, Psychology, and General Experience, and Illustrated in Judicial Trials (Boston: Little, Brown and Company, 1913).
13 T Anderson & W Twining, Analysis of Evidence: How to do Things with Facts (London: Weidenfeld and Nicholson, 1991).
14 See Jackson, supra note 1.
15 See, for example, Mack, supra note 9.
16 The reasons for this can be briefly set out. First, our aim in the course was to provide students with a good grasp of basic principle, rather than the ability to construct the kind of argument about the scope or operation of an exclusionary rule that might be made on an appeal in the High Court. Secondly, being a later year subject, we felt entitled to assume that the skills to be gained from reading, analysing and synthesising case law – important as they are – are skills which students should already have learnt in earlier subjects, and which they should not need to be taught again in Evidence; cf AG Amsterdam, Clinical Legal Education – A 21 Century Perspective (1984) 34 Journal of Legal Education 612, 618: “... why do we need to teach case reading and doctrinal analysis to the same students twenty-nine times sub nom. torts, contracts, criminal law, admiralty, antitrust, civil rights, corporations, commercial law, conflict of laws, trusts, securities regulations and so forth?”
17 During the same period a new specialist LLM subject, Proof in Litigation, which is concerned solely with the process of proof, has also been developed; this subject is not, however, discussed in this article.
18 According to the teachers of some of the later subjects.
19 Palmer, supra note 9.
20 Those weeks are currently – the process is ongoing and likely to remain so for some time – divided as follows: 1. Introduction to the law of evidence. This is an “omnibus” unit, which introduces students to the main sources, principles, techniques, terminology and concepts of the law of evidence in Australia; and outlines the main methods for adducing evidence, including the limitations on the availability of evidence imposed by the law of privilege and immunity. 2. Criminal investigation: the gathering of evidence. This deals with investigative powers, suspect’s rights, including the right to silence (and silence at trial), and the public policy discretion. 3. Criminal investigation: interrogation and confession. This deals with the admissibility of admissions and confessions in criminal proceedings. 4. Hearsay: the exclusionary rule. 5. Hearsay: exceptions to the rule. Previous attempts to teach both aspects of the hearsay rule in one week have proved consistently unsuccessful, with students requiring more time to assimilate the rule. 6. Opinion evidence. 7. Tendency and coincidence evidence. 8. Credibility evidence.
21 Anderson & Twining, supra note 12, at xx.
22 Including Wigmore (1937), supra note 11; Anderson & Twining, supra note 12; D Schum, Evidential Foundations of Probabilistic Reasoning (New York: John Wiley & Sons, 1994); D Schum, Evidence and Inference for the Intelligence Analyst (2 volumes, Lanham: University Press of America, 1987); and D Binder & P Bergman, Fact Investigation: From Hypothesis to Proof (St Paul: West Publishing, 1984). These will soon be replaced by a new text by the author: Proof and the Preparation of Trials: How to do things with evidence (Sydney: LBC, 2003).
23 See, inter alia, S Lubet Modern Trial Advocacy: Analysis and Practice (Notre Dame: National Institute for Trial Advocacy, 1993), Chapter 1; E Imwinkelried, The Development of Professional Judgment in Law School Litigation Courses; The Concepts of Trial Theory and Theme (1986) 39 Vanderbilt Law Review 59; and E Ohlbaum, ‘Basic Instinct: Case Theory and Courtroom Performance’ (1993) 66 Temple Law Review 1.
24 With acknowledgement to Kathy Mack of Flinders University, whose objectives were partly used as the basis for these: see Mack, supra note 9, at 58.
25 Based on the taxonomy of evidence in Schum (1994), supra note 21, at 115, where evidence is classified according to two dimensions: first, its source, real or testimonial; and secondly, its relationship to the facts in issue, direct, circumstantial or ancillary (which includes, for example, evidence relating to the credibility of a witness or authenticity of an item of real evidence).
26 See, for example, Schum (1994), supra note 21, at 86-92.
27 As well as those links which depend on biased or unfounded generalisations, assumptions or beliefs: cf Mack, supra note 9.
28 So called, because it is very loosely based on Wigmore’s “narrative method”: see Wigmore (1937), supra note 11.
29 See, for example, Binder and Bergman, supra note 21.
30 See Anderson and Twining, supra note 12, at 108-155.
31 A number of products have been tried by students including Microsoft Visio, MindManager (available from http://team-link.org) and Reason!Able (available from http://www.goreason.com). The latter has proved the most popular, in part because it is available free of charge to University of Melbourne students.
32 P Ramsden, Learning to Teach in Higher Education (London: Routledge, 1992) 187. See also, D Rowntree, Assessing Students: How shall we know them? Rev ed (London: Kogan Page, 1987) 1; and M Le Brun & R Johnstone, The Quiet (R)evolution: Improving Student Learning in Law (Sydney: Law Book Company, 1994) 178-183.
33 Gibbs, supra note 46, at 4; quoted in S Kift, Lawyering Skills: Finding their Place in Legal Education [1997] LegEdRev 2; (1997) 8 Legal Education Review 43, at 54.
34 See, generally, K Mack, Bringing Clinical Learning into a Conventional Classroom [1993] LegEdRev 4; (1993) 4 Legal Education Review 89.
35 Amsterdam, supra note 15, at 616-617 (emphasis in original).
36 L Romero, Integration of Clinical Methods into an Evidence Course, distributed at Association of American Law Schools Annual Meeting January 1989; quoted in Mack, supra note 34, at 91.
37 For a description of what an Advice on Evidence should do, see J Glissan & S Tilmouth, Advocacy in Practice (Sydney: Butterworths, 1998) 11.
38 This first task obviously requires students to apply the narrative method.
39 In the BCL in Oxford, for example, the eight topics in Evidence correspond to the eight teaching weeks; at the University of Melbourne there are twelve topics for twelve weeks; where Evidence is taught over a full year, there will no doubt turn out to be even more topics which need to be covered.
40 Namely, “1. Introduction. 2. Competence and compellability. 3. Privilege. 4. The examination of witnesses. 5. Disposition and character. 6. Similar fact evidence. 7. The accused as a witness. 8. Burden and standard of proof. 9. Documentary evidence. 10. Opinion evidence and prior determination. 11. Hearsay: -the exclusionary rule; - the common law and statutory exceptions. 12. Admissions and confessions in criminal cases. 13. Illegally obtained evidence and confirmation by subsequent fact. 14. Res gestae. 15. Corroboration.”
41 Although the topics must also satisfy the following guideline: “The topics should include examination of both the sources and acceptability of evidence, including rules concerning the burden and standard of proof and technical rules concerning such matters as hearsay, admissions and confessions, illegally obtained evidence and res gestae.”
42 Cf W Twining, Legal Skills and Legal Education (1988) 22 Law Teacher 4, at 12.
43 See supra note 19, for a list of the topics currently taught at Melbourne.
44 By “quasi-compulsory” I mean those subjects which, while not compulsory for award of a law degree, must be completed if a student is to be admitted to practice.
45 See, for example, N Gold, Are Skills Really Frills? (1993) 11 Journal of Professional Legal Education 1, at 6 which describes ten necessary lawyering skills, including both “fact analysis” and “fact management”. See also N Duncan, Why Legal Skills – Whither Legal Education? (1991) 25 Law Teacher 142, at 144, which refers to “casework skills”.
46 See, for example, J de Groot, Acquiring Basic Legal Skills and Knowledge: What and Where? (1994) 12 Journal of Professional Legal Education 1, which compares the results of a survey of senior members of the solicitors branch of the Queensland profession, with surveys conducted in Chicago and Montana. See also T Anderson & W Twining, Analysis of Evidence, in N Gold, K Mackie & William Twining eds, Learning Lawyers’ Skills (London: Butterworths, 1989) 216.
47 G Gibbs et al, Developing Students’ Transferable Skills (Oxford: Oxford Centre for Staff Development, 1994) 9.
48 But see F Martin, The Integration of Legal Skills into the Curriculum of the Undergraduate Law Degree: The Queensland University of Technology Perspective (1995) 13 Journal of Professional Legal Education 45, at 54-55, where factual analysis is treated as an element of several other skills such as mooting, ADR, communication and fact gathering, all of which are taught progressively through the degree.
49 See, inter alia, Binder and Bergman, supra note 21; F Vincent, ‘Preparation of a Criminal Trial’ in G Eames ed, Criminal Law Advocacy (Adelaide: Legal Services Commission of South Australia, 1984); and P Tillers & D Schum, ‘A Theory of Preliminary Fact Investigation’ (1991) 24 University of California, Davis Law Review 931.
50 Such as, for example, the summary of prosecution opening and defence response required by the Crimes (Criminal Trials) Act 1999 (Vic), or Crown Case Statement, required by the practice directions for Supreme Court Criminal Trials in New South Wales: see Hunter & Cronin, supra note 9, 418-9.
51 The argument that admissibility is only one component of evidential analysis was persuasively put by Wigmore in the opening paragraphs of The Science of Judicial Proof, supra note 11; these words were first published in Wigmore, The Problem of Proof (1913) 8 Illinois Law Review 77
52 See P McNamara, ‘The Canons of Evidence - Rules of Exclusion or Rules of Use?’ [1986] AdelLawRw 3; (1986) 10 Adelaide Law Review 341.
53 Mack, supra note 9, at 57-58.
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