History and Theory_THEME 1

A: RELIGIOUS/PRIMITIVE STAGE: Based on irrational methods. Appeals to a deity Importance of the purifying oath Trials: 1. Trial by ordeal: a)accursed morsel b)bitter water c)hot iron 2. Trial by battle: Dispute settled by a duel. Appeal to physical force AS WELL AS belief providence will give victory Early roots of present ACCUSATORIAL SYSTEM because physical confrontation developed into verbal confrontation B: FORMAL STAGE: Increase in reasoning Compurgators who were not eye-witnesses, rather individuals who would testify under oath that one person's oath must be believed. Shows the importance of the OATH!!! C: RATIONAL STAGE: Compurgators played a more meaningful role and seen as a crude form of trial by jury. Distinction drawn between jurors and witnesses. 1. Witness testifies 2. Jurors determine facts based on witness testimony Upon adoption of the PRINCIPLE OF ORALITY: disqualification of jurors and impartial adjudicators adopted Distinction between functions of judges and jurors: 1. Jurors determine facts 2. Judges determine law. There was a fear that jurors may attach undue weight to evidence which judges thought untrustworthy THEREFORE judges considered admissibility as a matter of LAW not fact Trial by jury was abolished but we retained an evidential system based on: 1. Adversarial system 2. Principle of orality 3. Doctrine of precedent 4. Best evidence rule 5. Oath