The most problematic part of Professor Mirjan Damaška's fine book is the title.' Professor Damaška does an excellent job of situating American evidence law in the procedural context in which American trials occur. He identifies three major procedural elements. First, juries are traditionally cited as the primary or sole explanation for our extensive set of exclusionary rules, which are said to express mistrust of lay adjudicators. Professor Damaška points out as well that lay juries permit a divided court, with a professional judge who has exclusive control over "questions of law," and that this division is necessary for the operation of exclusionary rules because it makes it possible to keep the excluded evidence from the notice of the trier of fact. Second, our privatized system of factfinding is based on party control over the production of evidence, which polarizes the presentation and makes the evidence itself suspect. Finally, the use of one-time, single-case juries requires concentrated trials that take place in a continuous and comparatively compact period of time. Given this temporal concentration, questions about the reliability of evidence must be resolved quickly-frequently on the spot-which limits the possibility of additional investigation or rebuttal, and favors exclusion as a remedy. Professor Damaška's argument (to which I have not nearly done justice) is rich and for the most part persuasive. But why call it Evidence Law Adrift? A stronger case could be made that evidence law is fixed in place, or at least tightly tethered.
Gross, Samuel R. "Law in the Backwaters: A Comment of Mirjan Damaška's Evidence Law Adrift." Hastings L. J. 49, no. 2 (1998): 369-75.