Reforming the Law of Evidence (Part Three): The Foundations of the Law of Evidence and Their Implications for Developing Countries

In 2011, the Government of the United Republic of Tanzania, under the auspices of the Prevention and Combating of Corruption Bureau and its Director General Dr. Edward Hoseah, initiated a project to review and reform the law of evidence of Tanzania, which is embodied in the Tanzania Evidence Act of 1967 (“TEA”). Approximately 90% of the TEA comes directly from the 1872 Indian Evidence Act and has remained in significant part unaltered for over fifty years. To facilitate this project, the Government created a committee of stakeholders in Tanzania, the Working Group and retained Prof. Ronald J. Allen as its Chief Consultant, who in turn created a Drafting Committee formed by students from the Northwestern University School of Law to assist in the research and eventually the drafting of a new code of evidence for Tanzania. After three years of work, the Drafting Committee completed the Proposed Final Draft: Tanzania Evidence Act 2014 (“Proposed Code”). In April, 2014, the draft of the Proposed Code was presented to the Court of Appeal of Tanzania, which is the country’s highest court. The Court of Appeal forwarded it to the Parliament of the United Republic with its recommendation that the draft be considered for adoption. Parliament then forwarded it to the Law Reform Commission of Tanzania, which now has it under advisement.A similar project has been underway in China, also involving the Northwestern University School of Law. To facilitate both projects, a conference was held at Northwestern University in November, 2014, entitled The Foundations of the Law of Evidence and Their Implications for Developing Countries, that focused on the evidence law reform project in Tanzania, the project in China, and in developing countries around the world. The conference was co-sponsored by the Government of the United Republic of Tanzania and the Evidence Law and Forensic Sciences Institute of ZhengFa University (the China University of Political Science and Law. This article comprises the introductory remarks at the conference, analyzes the domain of evidence law, and introduces the Proposed Code. The primary focus of the law of evidence is typically thought to be advancing accurate and efficient fact-finding, which is the epistemological problem of a legal system. However, the law of evidence extends much more widely over at least four other areas, briefly discussed in this article, including the Organizational Problem, the Governance Problem, the Social Problem, and the Enforcement Problem.The article also introduces and contains a brief discussion of how the Proposed Tanzania Evidence Act differs from the Federal Rules of Evidence. In addition to a radically different organization, there are four other general points deserving of mention: 1. The analytical identity of “relevance” and “conditional relevancy” is noted and operationalized through the elimination of the otiose doctrine of conditional relevancy. 2. The equally otiose concept of presumptions, in all its forms, is also eliminated by simply focusing directly on allocations of burdens of proof. 3. Judicial notice is rationalized by providing the solution to the elusive meaning of such phrases as “generally known within the trial court’s territorial jurisdiction” and “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned” by tying them to whether a reasonable person could disagree given the burden of persuasion. 4. Moves the use of experts toward an educational model, which, it turns out, Tanzania case law was already moving toward.