Evidence Commons^™

Models And Limits Of Federal Rule Of Evidence 609 Reform, Anna Roberts

Vanderbilt Law Review

A Symposium focusing on Reimagining the Rules of Evidence at 50 makes one turn to the federal rule that governs one's designated topic--prior conviction impeachment--and think about how that rule could be altered. Part I of this Article does just that, drawing inspiration from state models to propose ways in which the multiple criticisms of the existing federal rule might be addressed. But recent scholarship by Alice Ristroph, focusing on ways in which criminal law scholars talk to their students about "the rules," gives one pause. Ristroph identifies a pedagogical tendency to erase the many humans who turn rules into …

How Machines Reveal The Gaps In Evidence Law, Andrea Roth -- Barry Tarlow Chancellor's Chair In Criminal Justice And Professor Of Law

Vanderbilt Law Review

This Symposium asks participants to reimagine the Federal Rules of Evidence on the fiftieth anniversary of their effective date. As part of that conversation, this short Essay argues that the Rules of Evidence contain critical gaps in terms of empowering litigants to meaningfully challenge the credibility of evidence. Specifically, the increasing use of machine-generated proof has made clear that evidence law does not offer sufficiently meaningful opportunities to scrutinize conveyances of information whose flaws cannot be exposed through cross-examination. These underscrutinized conveyances include machine-generated output, information conveyed by animals, and statements made by absent hearsay declarants. Even for some witnesses …

Introduction, Edward K. Cheng

Vanderbilt Law Review

Prior to the eighteenth century, cartographers would often fill uncharted areas of maps with sea monsters, other artwork, or even rank speculation-a phenomenon labeled "horror vacui," or fear of empty spaces. For example, in Paolo Forlani's world map of 1565, a yet- to-be-discovered southern continent was depicted with anticipated mountain chains and animals. The possible explanations for horror vacui are varied, but one reason may have been a desire "to hide [the mapmakers'] ignorance." Not until "maps began to be thought of as more purely scientific instruments . . . [did] cartographers . . . restrain their concern about spaces …

Ignorance Of The Rules Of Omission: An Essay On Privilege Law, Rebecca Wexler

Vanderbilt Law Review

Evidentiary privileges--that is, rules that empower people to withhold evidence from legal proceedings-are one thread in a mesh of secrecy powers that control the flow of information in society. They are part and parcel of the laws, rules, norms, and practicalities that determine who can conceal and who can compel, that allocate power based on access to knowledge and its opposite. Despite the significance of privileges and of the harms that they produce, our understanding of this body of law has profound gaps.5 The questions posed above turn out to be more challenging than they might at first appear. Notwithstanding …

One Size Does Not Fit All: Alternatives To The Federal Rules Of Evidence, Henry Zhuhao Wang

Vanderbilt Law Review

The Federal Rules of Evidence have been so successful that many people equate them to the whole field of evidence law. But this is a false equivalence. Our world is complicated, diversified, and dynamic. So, too, is evidence law, which is like a rainforest in which the Federal Rules are simply the largest tree, not a forest unto themselves. In fact, the Federal Rules of Evidence are limited in their applicability due to three fundamental assumptions: the presence of a jury trial, an adversarial process, and witness oral testimony. The universe of dispute resolution, however, extends far beyond a contour …

On Proving Mabrus And Zorgs, Michael S. Pardo

Vanderbilt Law Review

An unfortunate disconnect exists in modern evidence scholarship. On one hand, a rich literature has explored the process of legal proof in general and legal standards of proof in particular. Call this the "macro level" of legal proof. On the other hand, a rich literature has explored the admissibility rules that regulate the admission or exclusion of particular types of evidence (such as hearsay, character evidence, expert testimony, and so on). Call this the "micro level" of legal proof. Little attention, however, has focused on how the issues discussed in these two distinct strands of evidence scholarship intertwine. One important …

Binding Hercules: A Proposal For Bench Trials, Maggie Wittlin -- Associate Professor

Vanderbilt Law Review

If you were a federal judge presiding over a bench trial, you probably would not want the Federal Rules of Evidence to apply to you. Sure, you might want to be insulated from privileged information. But you are, no doubt, capable of cool-headed, rational reasoning, and you have a realistic understanding of how the world works; if you got evidence that was unreliable or easy to overvalue, you could handle it appropriately. But surely, you would have the same desire if you were a juror--it is not your position as a judge that makes you want all the relevant evidence. …

The Superfluous Rules Of Evidence, Jeffrey Bellin -- Professor Of Law

Vanderbilt Law Review

There are few American legal codifications as successful as the Federal Rules of Evidence. But this success masks the project's uncertain beginnings. The drafters of the Federal Rules worried that lawmakers would not adopt the new rules and that judges would not follow them. As a result, they included at least thirty rules of evidence that do not, in fact, alter the admissibility of evidence. Instead, these rules: (1) market the rules project, and (2) guide judges away from anticipated errors in applying the (other) nonsuperfluous rules.

Given the superfluous rules' covert mission, it should not be surprising that the …

"Pics Or It Didn't Happen" And "Show Me The Receipts": A Folk Evidentiary Rule, Timothy Lau

Vanderbilt Law Review

"Pics or It Didn't Happen," "Show Me the Receipts," and related refrains are frequently encountered in online discussion threads today. They are typically invoked to demand corroboration in support of a claim or to declare from the outset that a claim is supported by some sort of proof In many ways, they are the functional counterpart of legal evidentiary objections in online discussions. They embody a folk evidentiary rule, democratically and organically developed by the people.

The topic of "Pics or It Didn't Happen" is much broader than can be covered in a symposium piece. As such, this Article seeks …

Evidence-Based Hearsay, Justin Sevier -- Professor Of Litigation

Vanderbilt Law Review

The hearsay rule initially appears straightforward and sensible. It forbids witnesses from repeating secondhand, untested gossip in court, and who among us prefers to resolve legal disputes through untested gossip? Nonetheless, the rule's unpopularity in the legal profession is well-known and far-reaching. It is almost cliche to say that the rule confounds law students, confuses practicing attorneys, and vexes trial judges, who routinely make incorrect calls at trial with respect to hearsay admissibility. The rule fares no better in the halls of legal academia. Although defenses exist, scholars have unleashed a parade of pejoratives at the rule over the years, …

A New Baseline For Character Evidence, Julia Simon-Kerr -- Professor Of Law

Vanderbilt Law Review

Perhaps no rules of evidence are as contested as the rules governing character evidence. To ward off the danger of a fact finder's mistaking evidence of character for evidence of action, the rules exclude much contextual information about the people at the center of the proceeding. This prohibition on character propensity evidence is a bedrock principle of American law. Yet despite its centrality, it is uncertain of both content and application. Contributing to this uncertainty is a definitional lacuna. Although a logical first question in thinking about character evidence is how to define it, the Federal Rules of Evidence have …

Shifting The Male Gaze Of Evidence, Teneille R. Brown Professor Of Law And Associate Dean

Vanderbilt Law Review

Rationality is deeply embedded in both the Rules themselves and the ways they are interpreted. David Leonard stated that rationality "lies at the heart of modern evidentiary principles" because relevance itself is "grounded in rationality." Of the many reasons we have evidence rules-to streamline trials, foster legitimacy and predictability, and promote due process-encouraging "rational fact- finding" is often at the top of this list.

In contemporary evidence law the hegemonic goal-of-rationality is "often taken for granted" and can be traced "from Bentham through Wigmore to the present day." It is a "remarkably homogeneous" view that has "dominated legal scholarship for …

Race, Gatekeeping, Magical Words, And The Rules Of Evidence, Bennet Capers -- Professor Of Law

Vanderbilt Law Review

Although it might not be apparent from the Federal Rules of Evidence themselves, or the common law that preceded them, there is a long history in this country of tying evidence-what is deemed relevant, what is deemed trustworthy-to race. And increasingly, evidence scholars are excavating that history. Indeed, not just excavating, but showing how that history has racial effects that continue into the present.

One area that has escaped racialized scrutiny-at least of the type I am interested in-is that of expert testimony. Even in my own work on race and evidence, I have avoided discussion of expert testimony. In …