Ancient documents and the validity of evidence
Most legal systems forbid hearsay evidence because cross-examining a witness can only be about what the witness did or said. All you can get out of "I heard Alice tell Bob ..." is whether or not the witness believes it, not whether Alice actually said it. There are some exceptions, such as for dying confessions, and I'm sure it varies by jurisdiction.
The charter has no direct prohibition on hearsay evidence, but evidence must be falsifiable. Again, all you can falsify is whether the witness thinks he heard Alice tell Bob something.
Today I learned that the US Federal Rules of Evidence have special provisions for "Ancient Documents", which means all documents created before 1998-01-01. It used to be all documents older than 20 years, but they half-wised up:
The "Ancient Document" exception to the hearsay rule is, itself, ancient – the rule existed at common law, and the Federal Rules of Evidence have long had an exception for documents that were at least 20 years old. The Rule was initially adopted because (1) a party may not be able to find witnesses with personal knowledge of facts in documents older than 20 years, making the document the only available evidence to prove those facts to a jury; and (2) there's good reason to believe the documents are trustworthy because they were not made with the present litigation in mind.
But in 2015 the Committee on Rules of Practice and Procedure of the United States Judicial Conference proposed abandoning the Ancient Document rule due to the concern that it would become a loophole for parties to admit potentially limitless amounts of unreliable electronically stored information as this type of information became increasingly available. Ultimately, the Committee instead decided to narrow the Ancient Document rule to documents created before a specific date – January 1, 1998 – rather than a rolling 20-year period. Although the Committee recognized that the 1998 cutoff was somewhat arbitrary, it ultimately concluded that a cutoff date was necessary to prevent the Rule from becoming a "receptacle for unreliable hearsay."
Charter redress could never get away with any such rule, whether 20 years old or before 1998-01-01; it would itself be defective for not being understandable.
The 20 year rule and the modern 1998-01-01 rule both make the arbitrary distinction that Ancient Documents must be assumed valid. The rationale is that the witnesses who could validate Ancient Documents have died or can't be located or their memories have faded. This is as dumb as statues of limitation. One day everything's fine, your testimony holds up in court, and the next day, boom! it's unreliable, like Cinderella's coach and horses. Except this is the reverse; one day your Modern Document can be questioned, tomorrow it's an unquestionable Ancient Document.
If the rationale before was that 20-year-old documents were not created with the current litigation in mind, what does it matter that the Internet makes more Ancient Documents available? What makes the reliability of Ancient Documents depend on quantity or ease of availability? Sounds pretty elitist to me.
Charter evidence stands on its own. It's either falsifiable or not. It is an interesting question. How do you prove a 200-year-old deed is valid? You can date the paper and ink, like authenticating old paintings. You can get the repository clerks to testify.
I don't have any universal answer. Redress has to be beyond a reasonable doubt. If some clerk at a title company says he retrieved the document from a vault, is that good enough? It comes down to what the dispute parties and the public will accept.