Throughout the ages, humankind has sought fair methods of reaching the truth in criminal cases. Each culture arrived at a method that was consistent with that culture. Some of these systems of determining guilt or innocence were ridiculous and often barbaric. However, history has helped succeeding generations to develop systems that are more workable.
Every tribe and every people devised a system for protecting the lives and property of its citizens. Authorities noted, however, that only a few cultures developed a well-defined, organized, continuous body of legal ideas and methods that could be called a legal system. According to Wigmore, 16 legal systems developed to a stage at which they could be recognized as a legal system:
Egyptian, Mesopotamian, Chinese, Hindu, Hebrew, Greek, Maritime, Roman, Celtic, Germanic, Church, Japanese, Mohammedan, Slavic, Romanesque, and Anglican.1
Although all of these systems had some effect on modern evidence rules, only a few of the older systems have been selected for discussion because they represent systems that were adopted in part by other cultures and eventually led to our judge–jury system, which in turn was responsible for our rules of evidence. Some of the procedures that developed under these systems are gone, whereas some remain.
B. Mesopotamian Legal System
Under the early Mesopotamian system, the king was the fountain of justice, receiving the law from divine guidance, but under King Hammurabi, approximately 1795 to 1750 B.C.E
the system envisioned the king as the source of law, granting the king the ability to personally administer justice or to allow local governors or courts of law to handle the matters.5
The Mesopotamian system did not operate with police or a prosecutor, but the judges, who were originally royal priests, found the facts from the evidence and applied the law.6
A record of the trials of this period indicates that the judges called upon the accusers to “produce witnesses or instruments to show guilt.” The judges then examined the facts and reached a conclusion as to guilt or innocence. Once matters had been proven, Hammurabi’s Code had harsh aspects, because it noted, “[i]f a man destroy the eye of another man, they shall destroy his eye.”7
This body of law was perhaps the origin of the modern use of testimony and real evidence.8