Author:Capers, Bennett


Imagine walking through a busy courthouse. In Courtroom One, a sexual assault case is in progress. The assistant district attorney has just called the victim as a witness. As the victim approaches the stand, you notice that she is modestly dressed, and you instantly begin to think of her as credible. Perhaps the jurors, who are nodding, are thinking the same thing. In Courtroom Two, the judge is conducting a voir dire as the lawyers begin the process of selecting a jury in an insurance fraud case. Although the jury pool nearly fills the courtroom gallery, you notice a young woman and three small children sitting apart from everyone else. You assume they are the defendant's family, and cannot help but wonder if a guilty verdict will separate the family. Will the jurors wonder this as well? Courtroom Three is almost the opposite, the gallery is completely empty but for you, the only spectator. The defense lawyer is cross-examining a uniformed police officer who claims he observed the defendant throw away a gun as the defendant was running from the officer. Even though jurors are rarely told anything about a defendant's criminal history, you wonder if the defendant, who is black, has a criminal record. You glance at the jurors, who seem bored. Perhaps they are assuming the same thing and are wondering whether they can simply vote guilty already.

On the surface, these three cases--a sexual assault case, an insurance fraud case, a gun possession case--are different. (1) Yet in one important respect they share something in common: in all of these cases, fact finders will likely rely on "evidence"--a style of dress, the presence of family members, and race--that is rarely treated as evidence by the Rules of Evidence. Indeed, in some instances, the fact finders will rely on evidence that runs directly counter to evidentiary rules. (2) Most troubling of all, because this evidence is rarely recognized as evidence in the formal sense, it typically enters unnoticed. It typically goes unremarked upon.

The first goal of this Article is to call attention to this other evidence. For too long scholars and jurists have proclaimed and insisted that the Rules of Evidence serve as a powerful, all-seeing gatekeeper, culling evidence brought before juries for relevance and trustworthiness. (3) In fact, there is a panoply of evidence that, because it is rarely recognized as such, routinely passes evidentiary gatekeepers unobserved and unchecked. Calling attention to this evidence, indeed exposing it as evidence too, is the first goal of this Article.

The second goal of this Article is to demonstrate that such unregulated evidence matters. Consider the courtroom examples again. It is axiomatic among prosecutors that presenting a rape victim in more modest dress increases the chances of securing a conviction, (4) just as defense lawyers know that having family members and friends in the gallery can increase jury sympathy and the likelihood of an acquittal. (5) Turning to the gun possession case in Courtroom Three, litigators know that quite possibly the most powerful evidence in the case will be the defendant's race. (6) In a very real sense, "race itself is evidence." (7)

All of this has consequences for victims of crime. For example, to the extent that punishment serves the purpose of facilitating victim vindication, it should strike us as a design flaw that such vindication could turn on whether a prosecutor remembers to tell a rape victim to dress conservatively in court. This also has consequences for defendants: the very issue of guilt may turn on whether family members, either the defendant's or the victim's, are sitting in the courtroom. Even in cases that do not go to trial--the overwhelming majority--this unregulated evidence has outsized consequences, since these cases are negotiated and settled with prospective jurors in mind (8) and in the "shadow of trial." (9) And all of this has consequences for our entire judicial system, especially our criminal justice system. It certainly belies what we tell ourselves about the way justice works, that it is based on the "rule of law." The truth is far less comforting. The determination of outcomes, notwithstanding the Rules of Evidence, is often ruleless.

The remainder of this Article proceeds as follows. Part I briefly reviews what we tell ourselves about the Rules of Evidence, namely that they are all-seeing, vigilant gatekeepers, and shows how untrue this is. Using the specific examples of modes of dress, demeanor evidence, and race, Part II elaborates upon the consequences of our misapprehension. Finally, Part III puts forward a proposal for screening other evidence so that trials are more equitable and consistent with our notions of justice. It begins with a modest proposal, a simple jury instruction and directive. It then offers a solution that is anything but modest--a radical rethinking of the Rules of Evidence.

Nearly a century ago, in the pages of the Yale Law Journal, Professor Edson R. Sunderland wrote that the secrecy with which we cloak jury deliberations allows society at large to ignore the very imperfections that exist in the justice system. As Sunderland put it,

[Jury secrecy] covers up all the shortcomings which frail human nature is unable to eliminate from the trial of a case.... [C]oncrete details are swallowed up, and the eye of the law, searching anxiously for the realization of logical perfection, is satisfied.... It serves as the great procedural opiate, which draws the curtain upon human errors and soothes us with the assurance that we have attained the unattainable. (10) Sunderland is right, to be sure. But he also misses the larger picture. It is not just jury secrecy (11) that serves "as the great procedural opiate." (12) It is the Rules of Evidence in toto that lull us into thinking their vigilance knows no bounds, and that they stand ready at the gatehouse to admit only relevant and trustworthy evidence, and to exclude any evidence that is overly prejudicial or privileged. In truth, the gatekeepers see only what we have directed them to see. When other types of evidence approach the gate--from modes of dress, to the presence of family members, to race--the gatekeepers stand idly by, not even seeing this evidence for what it is. (13) But the fact finders do. And it is time, indeed past time, that we recognized this.


    "Evidence law is about the limits we place on the information juries hear." (14) Thus begins Professor George Fisher in his well-known casebook. The implication, whether intended or not, is that the rules are all-encompassing and unbounded. But the truth is far different. To be sure, the Rules of Evidence place limits on some of the information jurors hear and see, such as witness testimony and exhibits, the type of information that is formally announced and introduced as evidence by lawyers. Other evidence--functional evidence, if you will--passes by evidentiary gatekeepers, practically unseen and unnoticed. Jurors use it to decide who was right and who was wrong; who committed a crime and who did not. But before turning to these consequences, it makes sense to begin with the untruth we tell ourselves: the Rules of Evidence see and govern everything. And for that, it makes sense to begin with the rules themselves.

    1. The Rules of Evidence

      Though of fairly recent vintage--they were enacted by Congress in 1975 and have largely remained unchanged but for a few notable exceptions (15)--one could think of the Federal Rules of Evidence as centuries in the making. (16) Not that this common-law process was linear. As one commentator has noted, prior to the enactment of the Federal Rules of Evidence, the history of evidence law was one of "spotted and often accidental growth." (17) Furthermore, the common law of evidence was often counterintuitive and incoherent, so much so that in 1948 the Supreme Court called the hodgepodge of evidentiary practices and caselaw a "grotesque structure." (18) Perhaps nowhere was the structure more grotesque--or in contemporary terms, a "hot mess"--than with respect to hearsay rules. As two prominent commentators put it early on: "[A] picture of the hearsay rule with its exceptions would resemble an old-fashioned crazy quilt made of patches cut from a group of paintings by cubists, futurists and surrealists." (19)

      Faced with this hot mess, Chief Justice Earl Warren, relying on the Rules Enabling Act, formed an Advisory Committee in 1965 to undertake the process of codifying common-law evidentiary practices into a comprehensive code of evidence. The result, ten years later, was the Federal Rules of Evidence. Although crafted with federal trials in mind, the influence of the Federal Rules of Evidence was much wider; forty-five states and Puerto Rico have all adopted or modeled their own rules on the Federal Rules of Evidence. It is for this reason that this Article uses the generic term "Rules of Evidence." In a very real sense, the Federal Rules of Evidence are the Rules of Evidence. And the Rules of Evidence, in turn, are "the nuts and bolts of courtroom work." (20)

      The larger point, however, is this: the Rules of Evidence were understood, and continue to be understood, as all-seeing, all-encompassing gatekeepers, checking all of the information juries may hear or see for relevance and trustworthiness. (21) The next Section makes this point clear.

    2. The All-Seeing Gatekeepers

      Although it is not necessarily self-evident from the rules themselves or the accompanying Advisory Committee Notes, even a brief survey of what evidence scholars and jurists have said about the rules makes it abundantly clear that the rules are often understood as all-seeing, vigilant gatekeepers. I have already quoted Professor George Fisher: "Evidence law is about the limits we place on the information juries hear." (22) But Fisher is by no means alone. Professor David Alan Sklansky...

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