Completely new evidence theories court structures are rare. Most of the time, old solutions float across borders as "legal transplants" [2] as has always been the case with judicial inventions. The reception of such legal inventions usually cannot be cut off from the social and political surroundings in which they are embedded.

I will take two well-known examples. The medieval canon law was a major advance as far as the law of evidence was concerned. It also served well as a model for the medieval princes aiming at centralized power. This, of course, was the same purpose that the canon law of evidence had served in the canon law proper. It is therefore understandable that the resulting Roman-canon law of evidence efficiently spread to all parts of the European continent during the late middle ages and the early modern age.

Another major "revolution" in the law of evidence occurred in the aftermath of the French Revolution of 1789. Roman-canon, statutory rules of evidence were abolished in favor of "free evaluation of evidence" (intime conviction, freie Beweiswürdigung). This meant transferring the power of deciding questions of fact from aristocratic judges to bourgeois juries, this time modelled after the centuries-long British example. The French development then itself spread across the Continent during the course of the Nineteenth Century.

Political and social change tends to play a significant part in the way evidence law changes. The law of evidence is, in this respect, no different from law in general. One could easily expand the list of factors that possibly have contributed to the history of the law of evidence. A thorough treatment of these complex themes will not, however, be attempted in this article. [3] I will, instead, focus on a more narrowly defined subject and argue that court structures develop in close connection to the law of evidence. I will trace the development of Finnish (and Swedish) evidence law from the middle ages to the present and seek to find out what kind of limits and demands court structure has placed on the law of evidence.

I will divide the development of evidence law into three partly overlapping phases. An exact drawing of borders between the development phases is, however, not possible. Law, and especially the law of evidence, always changes, and any attempt to seriously cut its development into clearly separated phases will turn out to be fruitless.

The first period will be called the age of oaths and compurgators. This period begins in a the time for which no legal sources remain, [4] and it extends to 1696 when compurgators were prohibited by law. The beginning of the age of statutory proofs is in the sixteenth century, its demise in the nineteenth. The age of free evaluation of evidence begins around the middle of the nineteenth century, and it still continues.

According to the provincial laws, should no eye-witnesses be available, both parties were usually required to sustain their claims with oath. In more serious cases these oaths needed to be supported by oaths of others, the so-called compurgators or oath-helpers. [5]

The procedural system was indeed quite complicated, for besides oath and compurgator cases, some cases were defined as witness cases. Oaths and compurgators were usually subsidiary to witnesses. It was only if (eye-)witnesses were not available that recourse could be had to oaths.

And there is more. Certain cases were, according to the provincial laws, to be decided with the help the nämnd, the panels consisting of seven laymen. The nämnd became more and more established as an institution in the centuries following the introduction of the provincial laws, and they gained especial importance as a means of resolving crimes involving "breach of royal peace". It is the nämnd that were the newest stratum of medieval Swedish-Finnish procedure, and the one most clearly reflecting the wish to establish material truth and thus help the king gain effective control over the judiciary. [6]

All of these ways of fact-finding were based on lay participation. There were, in fact, no professional judges or other professionals with legal training available. [7] The community's influence on the choice of the presiding judge remained extensive until 1569, when local judgeships became noble privileges. The presence of compurgators, nämnd members, and an actively participating public further accentuated the community influence on legal matters. Although some influence of Roman-canon law can undoubtedly be discerned in the Swedish provincial laws and later medieval legislation, no reception comparable to that of the more southerly parts of Europe occured here in the middle ages. The Swedish-Finnish lay-based system allowed no "scientific," Roman-canon system of proof to take firm root.

However, as John Langbein has shown, the rigid system of statutory proofs was already rapidly changing from the sixteenth century onwards. It was being hollowed out by the institution of poena extraordinaria, which allowed the courts to convict even without full proof, in cases involving a lesser punishment. Extraordinary punishment allowed the courts to evaluate evidence quite freely. This enabled the courts to have less recourse to judicial torture, which, since the invention of the Roman-canon law of evidence had served as a necessary complement to the otherwise rigid system of statutory proofs. [10]

Not much empirical work on the law of evidence of early sixteenth-century Sweden-Finland exists. [11] Yet it is clear that the reception of statutory rules of proof began to advance, although slowly, in the sixteenth-century Swedish-Finnish legal practice. [12] Confession was thus beginning to be considered as sufficient evidence for conviction, but it was now also required that confession be voluntary and given before the court. This was typical for the Roman-canon conception of confession. The requirement of two eye-witnesses is also visible in the sixteenth-century Swedish-Finnish court practise. [13]

When statutory full proof was not unavailable, and no eyewitnesses appeared, the courts had a problem in Sweden-Finland, just as they had had in medieval Italian, French, or Spanish courts. In the continental ius commune, as mentioned above, poena extraordinaria had by the early modern era largely replaced judicial torture as a solution to the problem. It is therefore no surprise that ”extraordinary punishments” appeared early in the Swedish-Finnish legal practise as well. Munktell cites a case from 1541 in which a woman charged with infanticide was sentenced to a fine because stronger evidence was lacking. The later practise often employed ”extraordinary” or "arbitrary" punishments - the terminology varies - in cases of manslaughter, infanticide, theft, sodomy, gross forgery and witchcraft. [14]

It was through the practise of the newly founded appellate courts in the seventeenth century that the Roman-canon law of evidence was more fully received. The Appellate Court of Svea, the first of the Swedish royal appellate courts (founded in 1614), adopted legal rules of proof during the latter half of the seventeenth century, although the rules were then not rigorously followed. One witness was, in the Court's practise, considered a half-proof. Confession also became important in serious criminal cases, [15] and the old law of compurgators eventually came under attack. On November 19,1689, King Charles XI let the Appellate Court of Tartu know that he did not consider oath-helpers appropriate. The Court later issued a statement referring explicitly to the legal rules of proof, justifying them with biblical authority (Matthew 18 :16, Deut. 19 :15) and Claes Rålamb's wide-read treatise. [16] According to the Court, there were two principal rules of proof by witnesses. First, two or three witnesses always sufficed. Second, one witness made a half-proof only, unless his or her statement could be corroborated with an oath. [17] The use of compurgators was finally prohibited by law in 1695.

The development of the Swedish law of evidence in the early modern period thus did not significantly differ from the general European pattern. The statutory theory of proof was adopted in Sweden-Finland in the form in which the theory had developed in continental Europe by the time of its reception in Sweden-Finland. In spite of the shared general lines of development, one specific feature of the Swedish-Finnish development ought to be mentioned here. That is the low level of legal training. Just like in the middle ages, laymen continued their control over the administration of justice. But a change was coming, and legal education was introduced in the universities of Uppsala (1477), Tartu (1632), Turku (1640), and Lund (1666). The establishment of appellate courts (Stockholm 1614, Turku 1623, Tartu 1630, and Jönköping 1634) roughly coincides with the founding of the universities. It was by way of these higher courts, for the first time in the history of the Swedish-Finnish judiciary partly staffed by trained jurists, that the learned Roman law started to gain more influence. Unlike in France, Italy, Spain, or Germany, poena extraordinaria was in Sweden-Finland exclusively a product of judicial practise. The few contemporary legal treatises do not mention ”extraordinary punishments,” and the institution left little mark on legislation. [18]

Let us briefly consider the seventeenth-century Swedish-Finnish legal literature in the light of one example, Claes Rålamb. [19] A typical representative of the century, [20] Rålamb made two-fold use of Roman law. It was for him, as in the ius commune theory, a subsidiary legal source. Roman law also offered a methodical device with whose categories Rålamb presented national law. [21]

Rålamb's law of evidence was strongly influenced by the statutory theory of proof; the sufficiency of evidence was evaluated arithmetically. [22] "Observationes" does not, however, contain any sophisticated theory of circumstantial evidence or judicial torture, nor does it make use of the theory concerning extraordinary punishments. This may appear surprising, considering that Rålamb must have been well aware of the continental theories because of his thorough legal studies abroad. [23] It is, however, obvious that for Rålamb the continental legal rules of proof could not be received in toto. Instead, the theoretical law of evidence had to accommodated to the rough and unlearned Swedish-Finnish circumstances. Some parts of continental judicial writing therefore had to be rejected. [24]

Even though legally trained judges and lawyers [25] occasionally started to appear in seventeenth-century Swedish-Finnish courts, lay influence still continued to dominate. Seventeenth-century Sweden-Finland, despite its position as one of the politically important powers of the time, belonged to Europe's economic and cultural periphery. [26] Compared to the German states, France, England or Spain, Sweden-Finland was predominantly rural. There were virtually no cities, and, consequently, only a weak bourgeoisie. This rural and peripheral character of Swedish-Finnish society accounts for the weakness of the corresponding strong lay element in the Swedish-Finnish legal world.

As elsewhere in Europe, the birth of the academically trained jurist brought Roman law with it, and the founding of the appeals courts had an important role to play in its reception. The learned jurists could not, however, introduce Roman law in their decisions and treatises in the same sophisticated form they had learned it in the universities. Elementary as the Swedish-Finnish version of the statutory theory of evidence was, it is a slight exaggeration to even call it a "theory" when referring to it.

Although highly educated, the Swedish authors were writing for unlearned readers. All the major seventeenth-century legal writers, like Rålamb, were predominantly active judges, and not university professors. The academic community was too small to be written to. Therefore, the works of the Swedish writers were, more than anything, guidebooks intended to be used by practising judges with no or poor legal training, and not scientific treatises. The sophisticated evidentiary theories of ius commune would have been uncomprehended and wasted in them. The subtly formulated divisions and definitions of indicia, presumptions and the theory of poena extraordinaria never made their way into Swedish legal literature. [27]

For the same reasons, it becomes understandable that the rudimentary character of the statutory theory of proof should show in the Swedish-Finnish legislation as well. A judiciary that heavily relied on a lay element could not have absorbed sophisticated theories of evidence. The rules needed to be succinct and precise.

The legal theory of proof was first expressed on the statutory level in the War Articles of Charles XI in 1683 and the Sea Articles of 1685. [28] These statutes came to exercise an influence far beyond their actual scope of application. [29] Full proof, according to the War and Sea Articles, consisted of the accused's voluntary confession or witnesses' statements. [30] In cases of a half-proof ("halfwe skähl"), the accused was entitled to a purgatory oath. According to the Articles, the judge was to "carefully consider" the circumstantial evidence that sufficed for a halfproof, and thus, oath. [31] In practise the judge was given the freedom to evaluate when the evidence amounted to a half-proof.

The statutory theory of evidence became a general principle with the promulgation of the Law of 1734, [32] which was based on the seventeenth-century appellate court practise. As far as serious crimes were concerned, there were five ways of ending a criminal trial : a conviction, confessional imprisonment, absolutio ab instantia, a conditional acquittal and a (complete) acquittal. The Law of 1734 divided evidence into three categories : full proof, more than a half proof and a half-proof, corresponding to probatio plena, probatio semiplena major and probatio semiplena in the ius commune doctrine. [33]

Conviction presupposed full proof, absolutio ab instantia "more than a halfproof," and conditional acquittal a half-proof. [34]

In cases of "more than a half-proof", the defendant, if considered dangerous to society, could be sent to confessional imprisonment for an indefinite period. If he confessed, he was convicted. The conditional acquittal meant that the defendant was set free, but was branded with a "cannot-be-convicted" formula. Unlike in the cases terminating in absolutio ab instantia, a defendant who had been conditionally acquitted could not be charged for the same crime again. The last step in the evidentiary scale is obvious : if not enough evidence for even a conditional acquittal was at hand, the defendant had to be acquitted. In other than serious crimes, a purgatory oath led to a complete acquittal as well. [35]

It is important to note that the three intermediate positions (confessional imprisonment, absolutio ab instantia, and conditional acquittal) functionally corresponded to the different variants of the poena extraordinaria in other parts of Europe. In fact, they were the Swedish version of the ”extraordinary punishment.” [36]

The structure of Swedish-Finnish criminal procedure was, then, not very different from the continental procedure. [37] This is clear when one compares, for instance, the French ancien régime evidentiary categories to the Swedish ones. Although the two systems were not identical, it is apparent that both involved ways of getting around the practical difficulties of the statutory theory of evidence. Functionally, then, the French plus amplement informé indéfini corresponds to absolutio ab instantia ("leaving to the future") and hors de cour to conditional acquittal. [38]

Legal history is complicated, and new developments rarely replace old ones over-night. Alongside these newer developments described above, the old medieval law of evidence persisted. The oldest layer of official conflict resolution, oaths and compurgators, vanished slowly and gradually. It has been shown that in Finland even private compositions had a role to play and were employed in homicide cases during the entire sixteenth century and up to the seventeenth. [39] As mentioned before, the use of oath-helpers also continued until the very end of the seventeenth century. [40]

Before moving on to the nineteenth century, a concluding observation should be made. When statutory theory of proof was received in Sweden-Finland, it had thus, through poena extraordinaria, been transformed so as to already include elements of free evaluation of the evidence in European legal practise and legal literature. It was in this relaxed form that the theory of evidence was received in Swedish-Finnish legal practise and legislation.

It is difficult to see how it could have been otherwise. Sweden-Finland's judicial system was, since the middle ages, heavily dependent on lay partipication with few lawyers. It would have been impossible for the lay courts to master the complicated theories of evidence that had been developed in the European ius commune. A home-grown, watered-down version of those theories was therefore developed in Sweden-Finland. As the lay-dominance of the judicial system is concerned, the early modern development can be seen as a clear continuation of the medieval history.

Juries and free evaluation of evidence were introduced, in the minds of most reformers, constituting a logical whole along with adversary procedure, and the principles of orality and publicity. Together, it was envisaged, they would ensure a fair and materially correct outcome of the trial. Combining free evaluation with the professional judiciary and its secret, written procedures would have been, needless to say, an unthinkable solution in the political conditions of the time. Juries and free evaluation, professional judiciary and strict rules of proof - this was the choice for bourgeois Europe. Almost everywhere the first alternative was chosen. Almost everywhere, but not in Finland.

As a result of the Napoleonic Wars Finland was detached from Sweden and annexed to the Russian Empire in 1809. Finland nevertheless kept a legal and judicial system of its own inherited from the Swedish period, and Russian law had surprisingly little influence in Finland. It was in the nineteenth century that Finland also began to develop a legal literature of its own. However, questions of evidence or questions of jury were hardly introduced into the agenda of the national legal literature.

There was one major exception. The liberally-minded criminal law professor Karl Gustaf Ehrström explained in his lectures of 1866 that the only way to ensure the judiciary's independence from political power was to establish a jury system. A further advantage that the jury had, according to Ehrström, was that its members were more likely than the judges to have first-hand knowledge of the parties and their circumstances - an argument that has always and until recently figured in the discussions concerning lay participation in Finland. Juries represented local populace, whereas a professional judge was no more than the "the other side of the legislative power." [41] Ehrström also denounced the faults of the written procedure and preached fervently in favor of adversary procedure and the publicity principle. Judicial decisions had to be subjected to the criticism of the "general opinion." [42]

Ehrström's arguments against the traditional ancien régime were much the same as what one would find in, for instance, the early nineteenth-century German discussion. Ehrström claimed that the law's demand for two witnesses was troublesome and conducive to false decisions. Ehrström, of course, disapproved of the poena extraordinaria. Relying on C. J. A. Mittermaier, Ehrström stated that the ”extraordinary punishment” had been abandoned in contemporary foreign juducial writing and legislation. For Ehrström, "the law contradicts itself," unless the accused is considered innocent until proven guilty. [43] The statutory rules, furthermore, implied a mistrust of the judiciary; the court system ought, therefore, to be reformed and juries established. [44]

Ehrström likely had considerable influence on students during the long period he alone was responsible for the teaching of criminal procedure in the country's sole university. It would nevertheless be an exaggeration to claim that it was Ehrström who ushered Finnish criminal procedure into the modern era. He was, after all, alone with his opinions, and it was not until the turn of the century that Finnish legal literature in general accepted free evaluation of evidence. And the juries ? They were just forgotten along the way. Before explaining why, a few words on the transformation of legal practise need to be said.

The abolition of the statutory rules of proof was in Finland a work of judicial practise. The motor of change was again, like in the seventeenth century, the professional judiciary, not academia, which only followed the change that had occurred in practise. The lay-dominated country courts, it seems, had never really paid too much attention to the rules of proof. It was different in the appeals instances which until the middle of the nineteenth century managed to uphold the legal rules of proof, at least as far as serious crime was concerned. As I have shown in a recent book, the Finnish appeals courts and the highest instance, the Judicial Department of the Senate, abolished the rules in their practise, the decisive decades being the 1850s and 1860s. [45]

This brings us back to the juries. Why were they not "received" together with the abolition of statutory rules of proof ? At least two good reasons are thinkable. First, the question of lay participation, although not in the form of the jury, was already settled. The bourgeois jury was an unrealistic alternative to the traditional mode of lay participation in a country where towns, bourgeoisie, or liberalism did not play an important role.

Second, the role of the jurist in Finnish society was going through a crucial change in the 1850s. Ever since the annexation to Russia, legal professionals had played an important role in the administration of the Grand Duchy. Practically all of the administration of the "autonomous" Grand Duchy of Finland was in the hands of Finns themselves, and most of the bureaucrats were, of course, jurists. Important changes in Finland's social structure had occurred, however, by the 1850s and 1860s. The first half of the century had, in Finland as elsewhere, seen the demise of the traditional estate structure. One of the new social structures to replace the old Ständestaat were the professions, and one of "new" professions in this modern sense was the legal one. This means that instead of identifying themselves first and foremost with their estate (mostly the nobility), legal professionals came to feel increasingly part of the same social group as their colleagues in other professions. The professionalization got its institutional framework when Finland's Legal Association (Juridiska Föreningen i Finland) was founded in 1862. [46] The Association started to publish the country’s first legal journal. Another practical outcome of this development was the flourishing domestic legal science from the 1850s onwards, with the number of legal treatises multiplying in a few years. [47] The contents of legal education were reformed, [48] and according to the new university statutes of 1852, a legal degree was necessary for all offices in the Judicial Department of the Senate as well as for the offices in the high courts and local courts. It seems only logical that the Finnish judiciary, as part of the "new legal profession", was, in assuming new powers for itself, eager to reform the law of evidence and to bring it up to date with the modern theories of evidence with which the judges were well acquainted.

As everywhere before the appearance of the learned (Roman-canon) law of evidence, the Swedish-Finnish law of evidence in the middle ages was based on oaths and compurgators. No hierarchical court structure existed, and the local courts were in the hands of locally elected judges and nämnd members.

The reception of the Roman-canon law of evidence took place late in Sweden-Finland, neither was it a very thorough reception of the theory. Instead, the local judiciary and legal scholars actively shaped a simplified version of the theory for the domestic market. This was a practical necessity for legal training was scarce. Because of the simplified version of Roman-canon law, the judiciary could continue to be based heavily on laymen. An important exception were the appeals courts founded in the seventeenth century. Many of the appeals court judges had at least some legal training. Whatever Roman law was received, it usually came through the appeals court practise.

The statutory theory of proof was received in the form in which it had developed by the beginning of the early modern. The most important change to the theory was the poena extraordinaria, which was replacing judicial torture as an indispensable part of the system. With poena extraordinaria available, no judicial torture ever developed in Sweden-Finland.

As elsewhere, whatever was left of the statutory rules of proof was abolished in Finland in the nineteenth century. However, unlike in most other countries, in Finland the abolition was the work of the judiciary. The legislator or the university professors played no part in the crucial change of the 1850s and 1860s. Another important difference from the common European development is that the abolition of the statutory rules was in Finland not connected to the establishment of a jury system. Lay participation was already organized, although in an older medieval way. The bourgeois jury did not gain many supporters in the overwhelmingly rural country. The legal profession, on the other hand, strengthened their position around the middle of the nineteenth century. This encouraged the professional appeals court judges to reform the law of evidence by disregarding the legal rules of proof in their practise.

It is interesting to note that Finland and the other Nordic countries share with the Anglo-American legal culture an exceptionally long and continuous tradition of lay participation. This is a characteristic that distinguishes these legal cultures from most of those of continental Europe and a theme that merits more comparative research. The emphasis on the lay element has, in both legal cultures, led to important consequences which separate the Nordic and the Anglo-American legal cultures from the Continental tradition. Such common traits include a relatively weak role of legal literature and the emergence of Legal Realism in both legal cultures.

Because of the long tradition of lay participation it is no wonder that, when court reforms are discussed in Finland, the role of laypersons is often taken for granted. It has been claimed that laypersons are better equipped to evaluate matters of evidence than judges with legal training. This argument is essentially, needless to say, the same that was already brought forth in favor of the bourgeois juries in the nineteenth century European discussions.

Are laypersons better judges ? In fact, it has been commonly assumed in legal circles that laypersons do the job of evidence evaluation worse than the professional judiciary. The latest survey by Ervasti and de Godzinsky, however, undermines that assumption for Finland, although it is difficult, at least by statistical methods, to assess the amount of influence lay members have exerted on a given unanimous court decision. One needs to look at decisions in which the lay members have by vote overruled the chairman's opinions, and how these decisions are treated in the appeals instances. It is clear that the appeals courts do not change decisions in which lay judges outvote the professional judge than they do in general. [49]

But, in fact, it does not seem to matter whether laymen decide legal cases well or badly. It does not matter too much if one claims that, in modern society, democracy can better be protected through other institutions than lay participation in courts. For many, it is also irrelevant whether modern law requires the kind of legal expertise which is out of reach for laypersons. The weight of the tradition is simply so heavy that, at least for the moment, it seems politically impossible to introduce into the public discussion other lay participation themes than those concerning its forms.