James E. Beaver


The chief practical difficulty today, as always, lies in the particular application of a mass of evidentiary rules, in determining the bearing of various principles upon a given evidentiary issue of fact here and now. Nowhere has this situation continued truer than with reference to rules about evidentiary spoliation. "Indeed, after reading all there is on the subject in a recent voluminous text-book, one may well be bewildered, owing to the collection of crude, inadvertent and contradictory material."' As a result, the "request to charge which more frequently than any other is made in improper form is that dealing with the failure to call a witness." The importance of a party's failure to call a witness differs in each individual case according to its background. Frequently, the diverse threads of the proofs bearing upon a matter in issue resemble a hopelessly entangled Gordian knot until one thread is pulled and a whole series of variegated and inchoate motives, acts, and events emerges clear and straight in a cohesive whole. Any rule boldly attempting to alter reality must prove sterile and affirmatively obstructive.

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