Document Type

Speech

Publication Date

1977

Abstract

I am honored to participate in this seminar that is part of the celebration surrounding the dedication of Colorado's new State Judicial Building. But that feeling of honor is tempered by an awareness of the responsibility and perils of the role I have been asked to play. With the assignment, "The Future of Evidence Law," I have been asked to play the prophet, to be a seer of sorts, and to suggest what rules and principles will govern proof at trials at some date in the future. Exactly what date was not specified in the invitation-a decade, perhaps? A generation? A century? Until recently, 1984 served as the common futuristic date, nearly always with sinister implications. But 1984 is almost here, and we need a more remote date for our next appointment with destiny. Lacking an Orwell to provide a memorable year, and needing a specific date in the middle distance, I suggest the year 2000 as our target for today. It is far enough away to permit flights of fancy and to challenge our imaginations, yet near enough to make us grapple with contemporary problems. Moreover, the year 2000 is of real interest to everyone in this predominantly young assemblage. Many of us-perhaps a majority-will still be practicing law then. Indeed, the year 2000 will be only the mid-point of the careers at the bar of the young men and women who are now students in this very building. And so, I direct your attention to the year 2000. If the crystal ball seems a bit clouded-if we seem to see through a glass darkly-it may not be our fault. You may recall the opthalmologist who said to his patient: "Your eyes are fine; the world is out of focus." There is risk in this role of forecasting, it being familiar fact that the lot of the prophet is hard. He is without honor in his own country, and I still think of Colorado as my country. One approach to the task would be to predict the shape of particular and familiar rules of evidence some twenty-three years hence. In this wise, for example, we might expect dying declarations to be admissible in nonhomicide case (or, quite as likely, to be inadmissible in all cases); we might suggest that video-taped statements by an unavailable declarant will be admissible as an exception to the hearsay rule; or we might predict that confidential communications with a computer (whatever that means) will be privileged. But such exercise, no matter how fascinating, has minimal utility. More in keeping with the theme of this occasion is an overview of the field, to gain a sense of where we are and where we're going, first directing our attention to some things that are happening now and then suggesting their probable implications. First, then, let me refresh your recollections of a series of changes that are taking place among the various elements of the litigation process-its personnel, its subject matter, its procedures-for it is these changes that will determine the character of evidence law of the year 2000. I need touch on them only lightly, because you are aware of them all; but I want to bring them to bear on our foretelling task here today, because, as Kierkegaarde put it, "while life has to be lived forwards, we can only understand it backwards."

Comments

Deposited with permission of the International Society of Barristers.

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