In the Anglo-American legal tradition, we have a distinctive adversary system. The distinctiveness lies in its allocation to the adversaries in a dispute the basic responsibility for discovering, marshalling, and presenting the facts of the case to the decision maker, either judge or jury, rather than assigning these tasks to a nonpartisan official. Parties to litigation are, for the most part, given great latitude in the manner in which they choose to assert their rights in court. The rules of evidence, which are themselves part and parcel of the adversary system, generally also operate upon the principle of party responsibility. This responsibility is most clearly embodied in the so-called contemporaneous objection rule, which requires the party wishing to see a rule of evidence enforced to lodge an objection as soon as an impending violation of the rule is reasonably to be anticipated. Several policies maintain the repute of the judicial system by insuring that its procedures comport with contemporary perceptions of rationality, preserving the essential structure and efficiency of the common law fact-finding process, enforcing rules intended to control areas in which the parties are prone to a mutual tendency toward partisan excess, and protecting the rights of third persons not directly involved in the litigation. A more specific recognition of the relatively few rules of evidence that should remain immune from party control will permit the adversary system to function with greater efficiency, as both adversaries and trial courts can more confidently realize the benefits of agreements designed to streamline and reduce the scope of litigation.
John W. Strong,
Consensual Modifications of the Rules of Evidence: The Limits of Party Autonomy in an Adversary System,
80 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol80/iss2/2