Notes on the future of evidence law

Temple Law Review

Volumn 74, Issue 1, 2001, Pages 69-88

  Burns, Robert P ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

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EID: 0142247537     PISSN: 08998086     EISSN: None     Source Type: Journal    
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References (91)

1. Developments over the last half century that have restored some of the importance of the jury within our legal order may fairly be understood as a partial recovery of an original understanding: If we seek a paradigmatic image underlying the original Bill of Rights, we cannot go far wrong in picking the jury. Not only was it featured in three separate amendments (the Fifth, Sixth, and Seventh), but its absence strongly influenced the judge-restricting doctrines underlying three, other amendments (the First, Fourth, and Eighth). AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 96 (1998).
2. See JAMES B. THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW (1898).
3. Michelson v. United States, 335 U.S. 469, 485-86 (1948).
4. See ROBERT P. BURNS, A THEORY OF THE TRIAL 10-33 (1999) (arguing the "Received View" sees the trial as the "institutional device for the actualization of the Rule of Law").
5. Antonin Scalia, The Rule of Law As a Law of Rules, 56 U. CHI. L. REV. 1175, 1187 (1989).
6. "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable than it would be with the evidence." FED. R. EVID. 401.
7. FED. R. EVID. 401.
8. FED. R. EVID. 602.
9. Id.
10. See BURNS, supra note 4, at 20-21 (explaining that the witness must testify to what she saw or heard).
11. FED. R. EVID. 701.
12. FED. R. EVID. 802.
13. See FED. R. EVID 603 (requiring every witness to declare that he will testify truthfully "by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' min with the duty to do so).
14. See, e.g., FED. R. EVID. Art. IV (stating relevancy requirements).
15. FED. R. EVID. 407, 408.
16. FED. R. EVID. 412.
17. FED. R. EVID. 501.
18. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA, 293 (trans. Henry Reeve) (New York 1945).
19. See, e.g., FED. R. EVID. Art. VIII (discussing general rule for Hearsay and the exceptions to general rule).
20. See FED. R. EVID. 403 (allowing judge to exclude evidence if the prejudicial effect outweighs probative effect).
21. MICHAEL POLANYI, THE STUDY OF MAN (1959).
22. United States v. Chipani, 289 F. Supp. 43, 56 (E.D. N.Y. 1968) aff d 414 F.2d 11296 (2d Cir. 1969).
23. Chicago, B.&O. Ry. v. Babsock, 204 U.S. 585, 598 (1907).
24. Louis NIZER, MY LIFE IN COURT 359 (1961).
25. See Peter W. Murphy, Symposium: The Science of Proof: Some Reflections on Evidence and Proof, 40 S. TEX. L. REV. 327, 327-29 (1999) ("Mercifully, lawyers are the only group that circumscribes the use of evidence by technical rules ... and seeks to withhold pertinent information rather than disseminate it.").
26. GEORGE STEINER, REAL PRESENCES 82-83 (1989).
27. CHARLES HOOKWAY, PEIRCE 155-66 (1985).
28. On the range of possible standards, see FED. R. EVID. 609 (prescribing four different standards for four different categories of prior crimes offered for impeachment).
29. Wasn't it Justice Douglas who said, "A judge is a lawyer who once knew a politician." In some parts of the country, a judge is a lawyer who once was, and may still have to be, a politician.
30. WILLIAM TWINING, RETHINKING EVIDENCE: EXPLORATORY ESSAYS 1 (1990) (describing a remark of Sir Rupert Cross, the "leading English Evidence Scholar of the post-war era").
31. JEFFREY ABRAMSON, WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY 75-95 (1994).
32. Id.
33. The usual verdict is called a "general verdict" where the jury decides which side wins. BLACK'S LAW DICTIONARY, 6th ed. (1990).
34. Bushell's Case, 6 How. St. Tr. 999, 1011, 1015.
35. FED. R. EVID. 606(b). Rule 606(b) of the Federal Rules of Evidence provides: (b) INQUIRY INTO VALIDITY OF VERDICT OF INDICTMENT. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to bear on any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. Id.
36. HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 96 (1966).
37. See Tanner v. United States, 483 U.S. 107, 133-34 (1987) (upholding the district court's determination not to hold an evidentiary hearing based on a juror's claim that jurors had consumed alcohol and drugs and otherwise behaved badly); Peterson v. Wilson, 141 F.3d 573, 579-80 (5th Cir. 1998) (reversing a trial judge who granted a motion for a new trial based on her own conversations with jurors after trial which led her to conclude that they had not followed the instructions).
38. W. LANCE BENNETT & MARTHA S. FELDMAN, RECONSTRUCTING REALITY IN THE COURTROOM: JUSTICE AND JUDGMENT IN AMERICAN CULTURE 29-37 (1981).
39. Judge Warren Wolfson likes to say "every fact has two faces."
40. See Anthony G. Amsterdam and Randy Herz, An Analysis of Closing Arguments to a Jury, 37 N.Y.L. SCH. L. REV. 55, 121 (1992) (examining attorney's use of storytelling techniques); MICHAEL S. LIEF, H. MITCHEL CALDWELL & BEN BYCEL, LADIES AND GENTLEMEN OF THE JURY: GREATEST CLOSING ARGUMENTS IN MODERN LAW (1998).
41. See Anthony G. Amsterdam and Randy Herz, An Analysis of Closing Arguments to a Jury, 37 N.Y.L. SCH. L. REV. 55, 121 (1992) (examining attorney's use of storytelling techniques); MICHAEL S. LIEF, H. MITCHEL CALDWELL & BEN BYCEL, LADIES AND GENTLEMEN OF THE JURY: GREATEST CLOSING ARGUMENTS IN MODERN LAW (1998).
42. See Jeffrey W. Stempel, A Distorted Mirror: The Supreme Court's Shimmering View of Summary Judgment, Directed Verdict, and the Adjudication Process, 49 OHIO ST. L. J. 95, 107-08 (1988) (suggesting that recent Supreme Court decisions have eased ability to obtain summary judgment).
43. 355 U.S. 495, 41 (1957). Compare Sutliff, Inc. v. Donavan Co., 727 F.2d 648, 654 (7th Cir. 1984) (explaining that complaints must contain the elements necessary to sustain recovery despite the liberality of modern rules).
44. See Jackson v. Virginia, 443 U.S. 307, 324 (1979) (holding "applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt"); Martin Louis, Allocating Adjudicative Decision Making Authority between the Trial and Appellate Levels: A Unified View of the Scope of Review, the Judge/Jury Question, and Procedural Discretion, 64 N.C.L. REV. 993, 1005-06 (1986) (explaining growth and power of the trial court determination of the merits of a case).
45. Rose v. Clark, 478 U.S. 570, 579 (1986).
46. See Yates v. Evatt, 500 U.S. 391, 401-02 (1991) (examining erroneous burden-shifting instructions); Carella v. California, 491 U.S. 263, 266 (1989) (examining erroneous mandatory presumption instruction); Pope v. Illinois, 481 U.S. 497, 503-04 (1987) (examining erroneous statement of substantive law). But see Sullivan v. Louisiana, 508 U.S. 275, 281 (1993) (finding error on stating the burden of proof in criminal case not harmless).
47. See BURNS, supra note 4, at 45 (discussing admissibility of evidence within the theory of the case).
48. But see NORMAN J. FINKEL, COMMONSENSE JUSTICE: JURORS' NOTIONS OF THE LAW 2 (1995).
49. The Federal Rules of Evidence were first passed in 1938.
50. JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW, Tiller rev., sec. 28, 969.
51. FED. R. EVID. 401.
52. FED. R. EVID. 403.
53. For an early critique of this development, see Edward J. Imwinkelried, The Need to Amend Federal Rule of Evidence 404(b): The Threat to the Future of the Federal Rules of Evidence, 30 VILL. L. REV. 1465, 1465-71 (1985).
54. Compare Huddleston v. United States, 485 U.S. 681, 691-92 (1988) (finding trial court not required to make preliminary finding that defendant had proven commission of similar acts by a preponderance of the evidence), with Bourjaily v. United States, 483 U.S. 171, 181 (1987) (applying higher standard to determinations under Rule 104(a)).
55. FED. R. EVID. 501.
56. FED. R. EVID. 608(b). Not all states have followed this expansion. See, e.g., EDWARD CLEARY & MICHAEL H. GRAHAM, HANDBOOK OF ILLINOIS EVIDENCE Sec. 608.5 (7th ed. 1999).
57. FED. R. EVID. 608(b). Not all states have followed this expansion. See, e.g., EDWARD CLEARY & MICHAEL H. GRAHAM, HANDBOOK OF ILLINOIS EVIDENCE Sec. 608.5 (7th ed. 1999).
58. Fed. R. EVID. 608(a).
59. FED. R. EVID. 601. See Henry Weihofen, Testimonial Competence and Credibility, 34 GEO. WASH. L. REV. 53, 90 (1965) (concluding that the problem with testimony often lies in the witness's credibility and not competency).
60. FED. R. EVID. 601. See Henry Weihofen, Testimonial Competence and Credibility, 34 GEO. WASH. L. REV. 53, 90 (1965) (concluding that the problem with testimony often lies in the witness's credibility and not competency).
61. FED. R. EVID. 901(a).
62. FED. R. EVID. 703.
63. Amendments to the Federal Rules which took effect on December 1, 2000 added the following sentence to Rule 703: "Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." Id.
64. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 592(1993).
65. Khumo Tire Co. v. Carmichael, 526 U.S. 137, 152-53 (1999).
66. Frye v. United States, 293 F. 1013, 1014 (D.C Cir. 1923).
67. FED. R. EVID. 1001-1004.
68. FED. R. EVID. 807.
69. Wright v. Doe d. Tatham, 5 Cl.& F. 670 (H.L. 1858).
70. Robert P. Burns, Foreword: Bright Lines and Hard Edges: Anatomy of a Criminal Evidence Decision, 85 J. CRIM. L. & CRIMINOLOGY 843, 858 (1995).
71. FED. R. EVID. 801(d)(2)(D).
72. FED. R. EVID. 803(6).
73. FED. R. EVID. 803(8)(c). See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, PIN POINT (1988) (allowing a JAG report's conclusions as evidence in a civil suit stemming from a plane crash).
74. See, e.g., White v. Illinois, 502 U.S. 346, 357-58 (1992) (finding that Sixth Amendment's Confrontation Clause was not violated by the admission of testimony under the Illinois hearsay exceptions).
75. HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 494 (1966).
76. KALVEN & ZEISEL, supra note 103, at 494.
77. For example, evidence that is not offered for the truth of the matter, but for state of mind.
78. DE TOCQUEVILLE, supra note 16, at 293.
79. See Burns, supra note 67, at 875 (arguing against general exclusionary rules).
80. See BURNS, supra note 4, at 10 (examining the interrelation between what a trial is and what it ought to be).
81. MILNER S. BALL, THE PROMISE OF AMERICAN LAW 23 (1981). As one commentator states: A lawyer forms the story of his client, first for himself and then for judges and juries, by discerning and emphasizing or deemphasizing given elements under the influence of earlier courtroom stories. Story is the way a lawyer understands, make sense, of , and presents a case. Courts arrive at a decision about a case by replaying it in their minds in search of the fit of its parts and the fit of the whole with prior stories. Story is the way courts come to and explain judgments.
82. MARTHA NUSSBAUM, THE FRAGILITY OF GOODNESS: LUCK AND ETHICS IN GREEK TRAGEDY AND PHILOSOPHY 44 (1986).
83. For example, rulings granting summary judgment.
84. U.S. CONST. art. III, § 2; U.S. CONST. amend. V; U.S. CONST, amend. VI; U.S. CONST. amend. VII.
85. See supra Part II.B for a discussion of "perception."
86. WILLIAM CARLOS WILLIAMS, PATERSON 14 (1951).
87. See STUART HAMPSHIRE, JUSTICE Is CONFLICT (2000).
88. See BURNS, supra note 4, at 235 (arguing how contemporary trial comprises the practices best designed to achieve truth-for-practical-judgment).
89. Murphy, supra note 36, at 328. Murphy explains that "we are gradually relaxing our death-grip on evidence, placing more and more faith in the maturity and reasoning powers of juries, and entrusting them with more information." Id. Judge Jack Weinstein has argued for a movement away from strict exclusionary rules in light of greater respect due contemporary juries: Excluding information on the ground that jurors are too ignorant or emotional to evaluate it properly may have been appropriate in England at a time when a rigid class society created a wide gap between royal judges and commoner juries, but it is inconsistent with the realities of our modern American informed society and the responsibilities of independent thought in a working society. U.S. v. Shonubi, 895 F. Supp. 460, 493 (1995). Both Murphy and Weinstein are quoted in Michael S. Pardo, Comment: Juridical Proof, Evidence, and Pragmatic Meaning: Toward Evidentiary Holism, 95 Nw. L. REV. 399, 441 (2000). The latter is a philosophically sophisticated account of the consistency of a liberalized law of evidence with our best understandings of the ways in which judges and juries actually process evidence at trial.
90. It has been suggested that the defendant has the benefit of his privilege against self-incrimination and it is only fair that the defendant be likewise hobbled in his investigation in order to create a level playing field. Even conceding that the playing field should be level, the current "balance" is achieved too often at the expense of the truly innocent We need to consider whether the law of evidence will come to trade a greater amount of pretrial discovery for the defendant for a judicious lessening of all aspects of the ritualistic protection for the defendant's privilege against self incrimination at trial. MARVIN E. FRANKEL, PARTISAN JUSTICE (1978).
91. A concern that juries may not be able to distinguish valid science from junk science is real. That judges will be able to make that distinction sensibly is less clear. The issue here is, once again, the extent to which cross examination of the expert and the presentation of opposing evidence are sufficient to allow the jury to evaluate the testimony. In a given case, that decision may go one way or the other. But this is a more germane inquiry, and one more within a generalist trial judge's competence, than whether a specialized discipline, scientific or nonscientific, is "valid."