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98 Harv. L. Rev. 1357 (1984-1985)
Evidence Or the Event - On Judicial Proof and the Acceptability of Verdicts, The

handle is hein.journals/hlr98 and id is 1375 raw text is: VOLUME 98 MAY 1985 NUMBER 7 HARVARD LAW REVIEW, I THE EVIDENCE OR THE EVENT? ON JUDICIAL PROOF AND THE ACCEPTABILITY OF VERDICTS Charles Nesson* Commentators have traditionally viewed rules concerning judicial proof as animated primarily by the search for truth. In this Article, Professor Nesson argues that the need to promote public acceptance of verdicts can better explain many evidentiary rules and other aspects of the trial process. Central to the judicial function, he contends, is the projection of substantive legal rules, and the accompanying behavioral messages, that underlie ver- dicts. In order to assimilate such messages and accept verdicts as the basis for the imposition of legal sanctions, the public must understand verdicts as statements about litigated events and not about evidence presented at trial. Professor Nesson argues that the rules governing the conduct of judge and jury, and a variety of evidentiary and procedural rules - ranging from the hearsay rules to the treatment of statistical evidence - help to project substantive legal rules and behavioral messages by facilitating public accep- tance of verdicts as statements about events. Averdict that a defendant is guilty or liable can carry two different L.C1.reanings and project two different rules. The verdict can artic- ulate a legal rule: You did the thing enjoined by the law; therefore, you will pay the penalty. This message encourages each of us to conform our conduct to the behavioral norms embodied in the sub- stantive law. Alternatively, the verdict can emphasize a proof rule: We will convict and punish you only if your violation is proved by due process of law. This message invites people to act not according to what they know is lawful, but according to what they think can be proved against them.' While the legal system requires judges to heed the proof rule, it encourages citizens to heed the legal rule and to conduct themselves accordingly. A primary objective of the judicial process, then, is to project to society the legal rules that underlie judicial verdicts.2 * Professor of Law, Harvard Law School. My thanks go to Stephen Breyer, Charles Fried, Eric Green, Morton Horwitz, John Kaplan, Louis Kaplow, Frank Michelman, David Rosenberg, Benno Schmidt, Jr., Richard Stewart, and John Ziaukas for helpful readings of earlier drafts. I Professor Dan-Cohen traces the history of the distinction between conduct rules and decision rules in our legal process in Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REv. 625, 626-3o (1984). He suggests that in modern times the distinction first appeared in the work of Jeremy Bentham. See id. at 626 & n.I (excerpting J. BENTHAM, A FRAGMENT ON GOVERNMENT AND AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 430 (W. Harrison ed. 1948)). 2 For the purposes of this Article, I will use the term verdict, unless otherwise indicated, to refer only to affirmative verdicts - verdicts that the defendant is guilty or liable. '357

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