Evidence
The Law of Evidence is a valuable subject in the BCL because it is in all common law jurisdictions still dominated by common principles. This means that overseas graduates can both bring more to it, and gain more from it.
The aim of the course is to establish the basic structure of this branch of the law to which all students can relate the knowledge they acquire so as to be able to grasp it instinctively and to be able to “think on their feet.” It is the one area which lawyers need to know in detail rather than know how to acquire since problems arise, often unexpectedly, in the course of a trial for which no preparation has been possible. The more thorough the understanding of basic principles the more readily the detail can be slotted in, or created. All of these features owe their existence to the fact that the law has been gradually accreted by individual decisions of the judges in the course of trials, sometimes without the benefit of extensive reference to materials. It is because judges have so often drawn upon their instinct for the fundamentals of this branch of the law that it has developed so similarly in different jurisdictions, and has largely resisted radical statutory intervention.
These factors have also created an opportunity for useful academic reflection to draw out the principles often left unarticulated beneath the surface of the decisions. The subject has benefited from a succession of particularly talented commentators such as Thayer and Wigmore in the United States, and Cross in the United Kingdom. It tends to be in the forefront of change as increasing efforts are made to streamline civil litigation, and to cope more effectively with an increasing tide of criminal cases. These have led to the proposal of a number of innovations such as the reform of the hearsay rule, and changes in the evidential use of silence or an accused person’s previous record. The law is also adapting to newer forms of record-keeping, and the exploitation of the possibilities offered by video-recording.
In all jurisdictions the subject is in constant ferment with new codes and consolidations under consideration or implemented. Since the subject tends to highlight perceived tension between the efficient resolution of disputes and the importance of resolving them fairly, it is never short of topicality or fierce controversy.
The course in Oxford concentrates more on central principles than on the minutiae of procedure, and makes an effort to draw upon the experience of the whole of the common law world.