The Rise of Modern Evidence Law

Abstract

This article challenges the conventional wisdom that modern evidence law developed first in civil litigation, where lawyers had long been active, and spread later to criminal trials as lawyers began appearing regularly in ordinary criminal cases. Using newly-available pamphlet accounts of civil and criminal trials, Professor Gallanis argues instead that the modern, exclusionary approach to evidence emerged first in the rough-and-tumble arena of criminal trials, and that it spread from there to civil cases as lawyers familiar with criminal practice began to use a more aggressive approach to evidence on behalf of their civil clients.