John Leubsdorf: Professor of Law, Rutgers School of Law-Newark. Many thanks to Craig Callen, Sherry Colb, Dale Nance, Roger Park, and the participants in a Rutgers colloquium for their helpful comments. Thanks to John Mansfield for introducing the author to the law of evidence and to the Dean's Research Fund of Rutgers School of Law-Newark for support.
The land of evidence has a weird logic or illogic that is all its own. This is a realm in which excitement makes people more reliable,1 in which one may accept reports of what someone said to establish what she planned to do but not what she had already done,2 and in which those considering whether someone robbed a bank may not be told that he is a professional bank robber.3 It is a realm founded on the untrustworthiness of jurors, in which jurors are nevertheless trusted to follow instructions to disregard obviously relevant uses of evidence.4 It is a world in which the Supreme Court declines to reform a group of rules, not because they make sense, but because they are so feeble that "[t]o pull one misshapen stone out of the grotesque structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice."5 Not many fields of law can thus be described as too irrational to be improved.
This Article demonstrates the incompleteness of the common view that evidence law's strangeness results from its failure to pursue in the best way the goal of securing accurate adjudication of facts.6 To be sure, much can be said for that goal as a normative matter. And it is sufficiently hard to warrant the conclusion that any system pursuing the goal will be both complex and open to criticism. Sometimes it makes sense to exclude relevant evidence because it is more likely to mislead than to help the trier of fact7 or because its exclusion may stimulate the introduction of superior evidence.8Sometimes specific rules may promote the goal,9 while in other situations judicial discretion may be preferable. Lawmakers may have relied on generalizations about human behavior that can be shown to be Page 1211 untrustworthy.10 They may have been ignorant of what probability theory can teach about the weight and cumulation of evidence.11 And forces of inertia, notably the resistance of the trial bar, may have kept evidence law behind the times. These reasons explain some, but by no means all, of the odd features of evidence law.
Likewise, this Article shows that deeper presuppositions are at work in evidence law beneath the clash between truth-seeking and competing goals. That clash undoubtedly exists.12 Efforts to limit the cost and delay of litigation may exclude relevant evidence.13 Under a regime of party autonomy, the parties may specify not just the facts to be proved but the evidence to prove them, opening the door to evidence otherwise inadmissible14 or excluding evidence by stipulation.15 Various policies may supervene: privileges protect privacy or promote professional prestige;16facilitating the punishment of crime must be reconciled with maintaining safeguards for defendants;17 judges inflect evidentiary rules to reach substantive goals;18 and considerations of governmental structure and Page 1212 constitutional law affect the allocation of power between juries and judges.19And because trials are (in addition to much else) ritual and theater, the search for dramatic coherence and spectatorial impact may inflect the search for truth.20
Without scoffing at these insights, this Article tries to trace some patterns of thinking that underlie and shape evidence law at a deeper level. The way in which one sees and analyzes trials must affect how one tries to govern them, no matter how one conceives their goals. That is not to say that the choice of approach is value free. On the contrary, the commitments of evidence law have not been chosen at random. And commitments have consequences. Although none of us has consciously created the world of evidence law, it has helped to create us.
This Article seeks to show the implications of three commitments of evidence law, each of them a presupposition that underlies many evidentiary rules. The first is methodological: evidence is to be analyzed particle by particle and inference by inference. The second might be called epistemological: all evidence must be grounded on the testimony of a witness present in court. The third presupposition might better be described as a psychological field of force, in which law is justified by ambivalent and contrary distinctions between reason and emotion, and between the strengths and weaknesses of jurors, distinctions that turn out to be based less on reality than on the structural requirements of trials. Despite its somewhat anthropomorphic references to what "evidence law" does, this Article does not claim that law speaks with one consistent voice or derives from one consistent set of values or axioms. What it does claim is that these and perhaps other assumptions help shape the ways in which people perceive and create evidence law, and not always for the best. Indeed, even the twentieth-century trend to increase judicial discretion to admit or exclude evidence21 has left older assumptions in place and perhaps protected them from challenge by blurring their practical impact. Page 1213
What students in evidence courses learn is, in large part, a method of particularization. Testimony is considered answer by answer. Each answer is considered inference by inference. Moreover, it is assumed that jurors will also particularize and can therefore be asked to consider a given morsel of evidence for one purpose while disregarding its other uses. If you can think of something that is inextricably connected to something else without thinking of the thing to which it is connected, you may be an evidence scholar.22 But you will probably not be much of a trial lawyer, because the atomized approach of evidence law must be deployed within a trial that makes sense to its participants and observers only from a very different perspective. Indeed, evidence law itself mingles particularization with overgeneralizations about classes of evidence. Those who apply it are thus called to shift back and forth between microscope and telescope.
Analyzing testimony answer by answer is a relatively recent development. Even in the eighteenth century, Anglo-American evidence law was mainly a law concerning the exclusion of witnesses. Those disqualified from testifying included parties, persons with an interest in the result, convicted felons, and atheists.23 Such persons could not testify at all, so it was unnecessary to consider their possible testimony item by item. It is true that more narrowly defined evidence rules also existed, for example, the attorney-client privilege and the emerging exclusion of hearsay.24 But rules excluding witnesses constituted the great bulk of evidence law and must have far overshadowed other rules in their practical effect.
As legislatures repealed witness-incompetency rules during the nineteenth century, judges expanded other evidence rules, following the law of the conservation of complexity that seems to be inherent in our legal Page 1214 system.25 The result was that, although more witnesses were allowed on the stand, individual questions and answers could more often be challenged on such grounds as hearsay, privilege, the best-evidence rule, the opinion rule, or the limits on cross-examination. The body of law seeking to define these doctrines steadily expanded. By 1904, when John Wigmore published the first edition of his treatise, he took four volumes to state the law of evidence, which William Evans had covered in 160 pages a century before.26
The main reason for this change seems to have been that the participation of lawyers in the examination and cross-examination of witnesses steadily increased, especially in criminal cases. Instead of simply and quickly telling their stories, witnesses answered lawyers' questions. Between the efforts of the questioning lawyer to probe deeper and those of opposing counsel to limit the harm, objections multiplied. Ruling on objections, judges shaped the law of evidence to focus on the propriety of individual questions and the admissibility of individual answers.27 This development paralleled an increasing tendency to rely on cross-examination rather than the oath as the main guarantee for the trustworthiness of testimony.28 It may also have developed in part from an eighteenth-century English preoccupation with "facts," thought of as nuggets of ascertainable truth-a preoccupation that was also reflected in the rise of science, newspapers, and the novel.29
Whatever the history of the assumption that each crumb of evidence is to be considered separately, its effects pervade evidence law. For example, when the admissibility of evidence depends on its reliability under the Confrontation Clause, courts typically decline to consider whether corroborating evidence might affect that reliability: each statement must Page 1215 stand on its own circumstances.30 Likewise, if a statement is inadmissible hearsay because it was made out of court, the fact that the declarant is now on the stand and subject to cross-examination does not automatically render the statement...