A Psychoanalytic Approach to the Law of Evidence

Abstract

This article seeks to reveal how psychoanalytic insights and discoveries can help in evaluating and reforming the law of evidence. Examined are the oath that witnesses take, the view that the effects of prejudicial evidence can be overcome by a judge's instructions to a jury to disregard it, the “opinion evidence” rule and its logically indefensible distinction between “fact” and “opinion” evidence, and the failure of the hypothetical question to live up to its promise as a vehicle for expert testimony. Also considered in light of psychoanalytic concepts and discoveries is the much-mooted hearsay rule and three of its major exceptions: “excited utterances, ” “declarations against interest, ” and “admissions. ” Throughout, reforms are suggested that, it is hoped, will increase the soundness and effectiveness of evidentiary law.