The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments

Inspiration for procedural reform is increasingly sought in the legal thesaurus of foreign countries. In their search for new solutions, lawyers are prone to focus almost exclusively on normative aspects of foreign arrangements, trying to ascertain whether they hold promise of advantages over domestic law. But this understandable deformation professionelle is not without its costs: the success of most procedural innovation depends less than lawyers like to think on the excellence of rules. More than in the private law domain, perhaps, the meaning and impact of procedural regulation turn on external conditions most directly on the institutional context in which justice is administered in a particular country.2 If imported rules are combined with native ones in disregard of this context, unintended consequences are likely to follow in living law. And while some of these consequences can turn out to be a pleasant surprise, others can be very disappointing. Those contemplating to combine common law and civil law approaches to factfinding should be especially sensitive to the potential costs of normative shortcuts to procedural reform; institutional differences between the two Western legal families capable of affecting the factfinding style are quite considerable. In criminal procedure, a few good lessons have already been learned about problems that arise when factfinding arrangements from one family are incorporated into the institutional milieu of the other. Here experience has shown how easily an imported evidentiary doctrine, or practice, alters its character in interaction with the new environment.3 Even textually identi-