This excellent little book contains the Carpentier lectures delivered by Professor Morgan at Columbia University in January and April of 1955. It is a real contribution to clarity of thought in the field of judicial proof and to the cause of sensible and practical law reform, some of it already forecast in isolated articles by the same author. Of course no book is flawless, and the greatest flaw I find in Professor Morgan\u27s writings is that they make hard reading. This is not due to any confusion of thought or to any failure to think things through, on Mr. Morgan\u27s part. Quite the contrary. He thinks his material through very thoroughly and quite without confusion, but the result in writing is so compact and concise that it takes the very closest attention to follow and get the most out of it

James, Fleming, Jr.

English

Yale Law School Legal Scholarship Repository

REVIEWS
SOME PROBLEMS OF PROOF UNDER THE ANGLo-AMERICAN SYSTEM OF LITI-
GATION. By Edmund Morris Morgan. New York: Columbia University
Press, 1956. Pp. xii, 207. $3.50.
THIs excellent little book contains the Carpentier lectures delivered by
Professor Morgan at Columbia University in January and April of 1955. It
is a real contribution to clarity of thought in the field of judicial proof
and to the cause of sensible and practical law reform, some of it already
forecast in isolated articles by the same author. Of course no book is flawless,
and the greatest flaw I find in Professor Morgan's writings is that they make
hard reading. This is not due to any confusion of thought or to any failure
to think things through, on Mr. Morgan's part. Quite the contrary. He
thinks his material through very thoroughly and quite without confusion,
but the result in writing is so compact and concise that it takes the very
closest attention to follow and get the most out of it.
This book will reward the effort of close attention. Seldom is so much
to be found in so small a package. The first chapter (called "Relation of
Pleading to Preparation for Trial") contains a neat, short history of pleading,
of jury trial and of the notion that jurors must decide cases on the evidence
before them, with its implications in terms of the preparation of materials
for trial in an adversary system. Mr. Morgan notes how the common law
system of pleading became more complex as time went on, how the ill-starred
Hilary Rules tried to tackle the problem created by the complexity and how
the American Codes tried to make pleading do too big a job in solving the
problem. There follows an admirable treatment of the solution sought by the
Federal Rules, and of the relationship between pleading and other pre-trial
steps. These, he thinks, come as near as they may to equalizing the parties'
access to all the facts in advance of trial, and this is necessary for the proper
functioning of our adversary system. The next step toward making a law
suit "a rational proceeding for discovering the factual basis of a controversy
... is a complete renovation of the rules of evidence."'1
The second chapter treats judicial notice. Mr. Morgan sees in this doctrine
an instrument for excluding evidence offered to controvert the incontrovertil-pIe,
and so for economy in litigation. This view is opposed to that of Thayer and
Wigmore, and the battle is not entirely one in semantics. There are proposi-
tions so widely accepted at any given stage in our culture that as a practical
matter they should be treated as indisputable and evidence concerning them
excluded. That June 3, 1906, was a Sunday, and that Missouri is east of the
Rocky Mountains would furnish examples. Other propositions are readily
1. P. 35.
REVIEWS
demonstrable by "resort to ...sources of indisputable accuracy."2 And no
doubt Wigmore is wrong in saying that exclusion of evidence to controvert
a point always involves the laying down of a rule of substantive law. But
as Mr. Morgan himself says, there will be many a dispute as to whether a
given proposition is disputable. He would have courts settle such threshhold
questions by resort to all sources of information, without limiting the search
by the rules of evidence, and then exclude evidence upon any proposition
found incontrovertible. This is all very well, but as a practical matter a trial
court will always exclude such evidence at peril of having the appellate court
conclude that the proposition is indisputable. And in making up its mind the
appellate court will consider the offer of proof as well as other sources of in-
formation. So trial courts will be tempted always to hear and weigh the evi-
dence except in cases so clear that evidence is not likely to be offered, and
not much economy in litigious effort is likely to result from adopting Mr.
Morgan's view.
Mr. Morgan clearly sees the danger of judicial notice, as a device for
shutting off dispute, in the hands of an "opinionated or conceited"3 judge.
This danger he would avoid
"by making it mandatory that the judge inform the parties of the tenor
of any matter to be judicially noticed by him and afford each of them
reasonable opportunity to present to him information relevant to the
propriety of taking such judicial notice or to the tenor of the matter to
be noticed."4
But this would be difficult. Surely, as Mr. Morgan says, the operation of
judicial notice is ubiquitous-it has a place wherever there is a place for
reasoning. Many rules of substantive law, many rulings on evidence, many
of the notions about hunian behavior employed in weighing testimony, and
most rulings concerning the sufficiency of evidence to prove a point depend on
spoken or unspoken postulates of fact which in turn depend on judicial notice. In
many of these instances the postulates, if clearly revealed and closely analyzed,
might provoke reasonable controversy. If the recommended procedure were
literally followed throughout a trial what would happen to the economy in
litigation so properly prized by Mr. Morgan?5
On the whole the chapter on judicial notice is more valuable for its analysis
2. P. 61.
3. P. 67.
4. Pp. 68-69. Cf. MODEL CODE OF EVIDENCE rule 804 (1942).
5. One can imagine, for instance, a judge as trier of a disputed issue of fact saying
to counsel:
"I have the following notions about the credibility of witnesses: Those who
do not look me in the eye are apt to be generally deceitful, as are those who rub
their hands; those who are over-quick in answering questions are apt to be
inaccurate observers; those who readily concede that they have talked to counsel
about the case are apt to have been coached. I think, but am not sure, that I
assume those who look like my scalawag uncle X to be facile and unreliable. If
either of you gentlemen wish to furnish me with information bearing on these
1956]
THE YALE LAW JOURNAL
and its insights than for its practical suggestions. This is not so, however,
of the rest of the book, which is abundantly valuable in both ways.
The third chapter deals with the allocation of function between judge and
jury, in two parts. The first part concerns burden of proof and presumption,;.
The second treats the determination of questions of fact upon which the ad-
missibility of evidence depends. Both are illuminating and helpful.
The treatment of the hearsay rule and its exceptions will shake any remain-
ing complacency there may be over the good sense and the consistency of
the present system. This is done graphically and rather dramatically in the
final chapter, which takes as its point of departure a perfectly ordinary negli-
gence situation, then assumes various vicissitudes in the lives (and deaths) of
the potential witnesses. By manipulating these events in ways well within
the bounds of possibility, Mr. Morgan shows how the present rules will often
exclude evidence which the intelligent and responsible layman would consider
worthy of serious consideration, yet will often admit evidence which mo"t
of us would consider almost worthless-at least if we could get away from
the influence of our legal training.
This final chapter could readily be adapted for popular presentation in
the Post or the Readers' Digest-probably without too much change. It
would be a good idea to do this, but the result would not be even a poor
substitute for the present work. It is characteristic of Mr. Morgan that the
fireworks do not come until after there has been the most careful and thou,-ht-
ful preparatton. The last three chapters taken together are the best over-all
critique of the hearsay rule and its exceptions that I have found. They begin
with a history of the rule showing how the earliest reasons given for it had
to do with the lack of oath and the lack of opportunity for cross-
examination. Later, in the nineteenth century, courts and commentators added
a third reason-"the incapacity of jurors to assign to hearsay its proper
probative value."6 Yet, Mr. Morgan goes on to point out, the exceptions to
the rule do not involve a rational or consistent application of principles de-
rived from these reasons. To show this, six situations are chosen and analyzed.
These include the offer of a prior statement made by a witness presently on
the stand who still recalls the events in issue. Here all the safeguards which
the rule is designed to afford are present, yet the prior statement (whether
consistent or inconsistent with the witness' testimony on the stand) is gener-
ally treated as hearsay and therefore accorded no substantive weight as evi-
dence (though prior inconsistent statements may be introduced for the pur-
pose of impeachinent only). If, however, the prior statement was a spon-
taneous exclamation, it would be admitted and be given probative weight.
notions, please do so within ten days or I shall employ them in rcsolving the
conflict in testimony here."
Surely the gain in helpful self-analysis would be greater than that in administrativw
efficiency. And suppose the conflict in testimony developed in connection with a prelimi-
nary ruling on the admissibility of evidence!
6. P. 141.
[1, ol. 66
REVIEWS
even if the declarant was not a witness under oath and subject to cross-
examination. But again, if the prior statement occurred in the course of a
former trial as testimony under oath and subject to actual cross-examination,
it would nevertheless be excluded in many situations and admitted for pro-
bative purpose only where the witness himself is now unavailable and where
the party against whom the statement is offered or his privy is the one who
conducted the former cross-examination. Admissions and past recollections
recorded are other situations chosen for analysis. An admission will be taken
as probative evidence against an admitter even if he is incompetent to testify
or if he made the statement on the faith of the merest hearsay. Past recollec-
tion recorded is received in evidence though the lack of present recollection
by the witness would frustrate effective cross-examination. Mr. Morgan
concludes: "The oath and opportunity for cross-examination, and even oath
and actual cross-examination do not save the utterance from exclusion as
hearsay; the absence of both does not require its exclusion."' 7
Modern courts, Mr. Morgan believes, actually apply a different, unspoken
test in working out exceptions to the hearsay rule. It is this: " 'Is the evi-
dence offered of such a quality that a trier of fact, and particularly a modern
jury, could put upon it a reasonably accurate value as tending to prove the
truth of the proposition which it is offered to prove?' "8 But the- courts
have tried to fit their rulings into the more rigid system, praised by Wigmore,
which seeks logical symmetry by artificially eliminating from the hearsay
category admissions and former testimony,9 then by finding in each exception
to the rule a so-called guaranty of trustworthiness and "some necessity for
not insisting upon direct testimony by the declarant."' 10 The cases, however,
show "no guaranty which would be even a weak substitute for cross-examina-
tion and in many instances the so-called substitute for the oath is merely an
absence of a motive to falsify, not a stimulus to tell the truth."' "
In short, I take it, no consistent thread is seen to run through the hearsay
rule and its exceptions either in terms of the layman's common sense or in
terms of the safeguards which the rule is supposed to afford. The end result
of this is the series of paradoxical situations skillfully juxtaposed in the last
chapter to highlight glaring discrepancies and defects which the present
system produces. Laymen tolerate this largely because they don't know about
it. Lawyers tolerate it partly for the same reason, partly because they ignore
the rules when important issues are at stake, and partly because they have
been beguiled by Wigmore's persuasive analysis. But the system should go,
and its place taken by a rule "which would make admissible all hearsay
that a court considers as having appreciable value,"' 2 or at least (if the pro-
7. Pp. 166-67.
S. P. 167.
9. P. 167.
10. P. 167.
11. P. 168.
12. P. 168.
1956]
THE YALE LAW JOURNAL
fession is not ready for so radical a reform) by the Uniform Rules of Evidence
lately approved by the American Law Institute and the American Bar Asso-
ciation.
The excellence of Mr. Morgan's treatment of the problems of evidence does
not lie altogether in the proposals he makes for reform. Even if one should
disagree with every one of such proposals, he would find the book valuable
for the keen and well thought out analyses to be found at every turn. Ex-
amples which appealed to me particularly would include his examination
of the precise nature of the proposition that is the subject of judicial notice;
of Thayer's familiar proposition that the risk of persuasion never shifts; of
the problem of communication between witness and the trier of fact; and of
the adversary theory of litigation, its justification and its relationship to the
protection of the hearsay rule.
FLEMING JAMES, JR.t
MOORE'S FEDERAL PRACTICE, Volume 7, 2d ed. By James William Moore.
Albany: Matthew Bender & Co., 1955. Pp. xxiv, 912 (unused pages re-
served). $18.50.
THE publication of Volume 7 of the second edition of Professor Moore's
Federal Practice brings to a conclusion his revised treatment of the Federal
Rules of Civil Procedure. The profession now awaits only Volume 1, to deal
with federal jurisdictional matters, for completion of this monumental work.
The review of a second edition, especially an advanced volume of a second
edition, is essentially supererogatory-particularly when the volume is Pro-
fessor Moore's. His profound scholarship, his comprehensive and exhaustive
coverage, his fine analysis, his courageous willingness to be definite and specific,
his sense of prophesy as well as of history, and above all his eagerness to plunge
into difficult waters and swim in strong currents, are too well known to bench
and bar to require repetition. Justice Holmes thought the word "valour" a
little strained as used in the title of Pollock's lecture "Judicial Caution and
Valour,"' but the word is an accurate one to characterize Professor Moore's
work in federal practice.
This volume covers rules 60(b) through 86, thereby including some of the
intrinsically, universally and perenially most difficult problems of judicial ad-
ministration: reconciliation of the law's often opposing goals of finality and
more complete justice (rule 60 (b)) ; the procedural law of the entire injunctive
process (rule 65) ; condemnation (rule 71 (a)) ; the whole gamut of appellate
practice (rules 72-76) ; besides such peculiar offspring of a complicated fed-
eralism as the enigma of a quasi-in rem action precluded as a matter of original
federal jurisdiction but allowed when the case has been removed to federal
tLafayette S. Foster Professor of Law, Yale Law School.
1. 2 HOLMEs-PoLLOcK Lzvrzs 239 (Howe ed. 1941).
[Vol. 66


Book Review: Some Problems of Proof Under the Anglo-American System of Litigation

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Book Review: Some Problems of Proof Under the Anglo-American System of Litigation

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