Bifurcation and the Law of Evidence

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That the law of evidence is the child of the jury system is not only oft-repeated but also, as a historical matter, probably true. As James Thayer put it in his 1898 treatise, “the greatest and most remarkable offshoot of the jury was that body of excluding rules which chiefly constitute the English ‘Law of Evidence.’” To be sure, historians disagree about the relative importance of the jury system, the adversarial process, the rise of lawyers, and the nature of the judicial role in bringing about our modern law of evidence, but there is little disagreement that the existence of a lay fact finder is one of the key ingredients in that murky stew.

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