THE LIVING RULES OF EVIDENCE.

• Author: Nunn, G. Alexander

INTRODUCTION 938 I. TOWARD A CODIFIED EVIDENTIARY REGIME 948 A. Evidence Law's Origins 950 B. The Federal Rules of Evidence Emerge 956 II. THE LIVING RULES OF EVIDENCE 962 A. What Is Living Evidentiary Theory? 963 1. Fidelity, Justifiability, and the Federal Rules of Evidence 965 2. Rulemakers as Regulators 974 3. Overcoming Textualism's Hegemony 979 B.The Promise of Living Evidentiary Theory 982 1. Substantive Reform 983 2. Systamatic Reform 988 CONCLUSION 990 INTRODUCTION

The jurisprudential evolution of evidence law is dead. At least, that's what we're expected to believe. After all, it's been forty-seven years since the common law pedigree of evidence law came to an end in the United States. (1) Ushered in on the wings of a growing positivist movement, (2) the enactment of the Federal Rules of Evidence purported to quell judicial authority over evidence law. (3) Instead, committees, conferences, and members of Congress assumed responsibility for regulating our evidentiary regime, thereby capturing the evolution of evidence law in a single, transparent code. (4) And as with other transitions to positive law, perhaps that shift inherently suggested that the Federal Rules of Evidence are "not a living organism" but simply a "legal document" that "says what it says and doesn't say what it doesn't say." (5)

Of course, a dead evidentiary regime is not inherently anathema. Indeed, there are compelling arguments in favor of taking the lifeforce out of written law. By channeling all legal change through rulemakers and elected officials, controlling evidence law becomes clear and uniform across jurisdictions. (6) Litigants can more readily predict which evidence is admissible and which evidence will be thrown out well before their trial date. (7) Moreover, as a matter of political theory, the effort to codify evidence law ensures that rules regulating the flow of information in the courtroom are the product of careful, deliberate, and politically accountable actors. (8) In the abstract, then, the turn to a codified evidentiary regime seems rather beneficial.

But reality is often unkind to abstract ideals. Frameworks that seem normatively desirable in vacuo often see problems emerge in application. And the Federal Rules of Evidence are no exception.

The inherent difficulty accompanying evidence law's transition to an unflinching code stems from the historic turbulence of evidence law itself. (9) Since its relatively recent emergence in the late eighteenth century, evidence law has not been particularly stable. (10) Indeed, for much of its history, evidence law was rather shallow in substance. In 1806, for example, a judge made the somewhat hyperbolic assertion that "[t]here is but one decided rule in relation to evidence, and that is, that the law requires the best evidence." (11) Hyperbole aside, early evidence law was certainly a different creature than its modern descendant. In the early era, there was no firm exclusionary rule barring hearsay from the courtroom. (12) Character evidence was fair game. (13) Judges frequently advised juries on the merits of cases. (14) Fearing perjury, many states still did not allow defendants to offer sworn testimony in the courtroom as late as 1890-just eighty-five years before the codification of the Federal Rules of Evidence. (15) As late as 1881, civil parties, too, were disallowed from offering sworn testimony in the courtroom. (16)

Taken as a whole, then, stability in our evidentiary regime has been the exception, not the rule. (17) The changes made to evidence law in just the century or two prior to the codification movement were fundamental in nature. Rather than fine-tuning a relatively stable machine, judges and state legislatures introduced massive reforms that sought to both align evidence law with evolving cultural norms and better ensure that trials achieve their ultimate goal of accurate, legitimate verdicts. (18)

But the codification movement froze evidence law in time. The enactment of the Federal Rules of Evidence in 1975 took the then-existing culmination of a rapidly developing legal doctrine and suspended it at a rather arbitrary point in history.

Of course, evidence law's civil turn need not necessarily have led to substantive torpidity. Rulemakers are certainly capable of evaluating whether evidence law is achieving its normative aims and amending the regime when it's seen to be falling short. (19) Indeed, there are now committees and conferences tasked with assuming the role of the common law judge by proposing beneficial changes. (20) If the codification effort simply transmuted the evolution of evidence law from judicial caselaw to administrative and legislative channels, the effort would rightly be seen as benign--perhaps even desirable.

Codification, though, has bred entrenchment. The arrival of the Federal Rules of Evidence ushered in an anomalous era in evidence law, an era marked by relative stagnation in the doctrinal space. That's not to say that rulemakers have been lazy. Far from it. In the last half century, they have introduced no less than thirty substantive amendments to the Federal Rules and have entertained scores more. (21) But the approved changes have been modest. Unlike the fundamental transformations in evidence law in the era leading up to codification, most of the amendments since the enactment of the Federal Rules of Evidence make only minimal alterations. A 2020 amendment modified the notice requirements for the introduction of prior acts under Rule 404(b). (22) A 2019 amendment clarified the application of the residual hearsay exception under Rule 807. (23) A 2017 amendment provided an easier means of authenticating electronic documents under Rule 902. (24) Missing, though, are the broad structural changes and continual systematic introspection that have historically dominated evidence law. (25)

One might fairly suggest that there's a simple explanation for the relative stability of evidence law under the Federal Rules--perhaps evidence law has reached its optimum. Perhaps the centuries preceding the codification effort were so fundamentally turbulent precisely because evidence law was in its infancy. Structural issues in our evidentiary regime have since been hammered out and, now, only modest fine-tuning is necessary. Thus, rulemakers' avoidance of significant evidentiary reform is merely the product of an absence of calls for any further change.

Were only it so. Although evidence law has stagnated over the last half century, the world around it has continued to evolve. In particular, developments in both the empirical and normative literatures testify to the continuing necessity of broad-scale evidentiary reform. (26) On the empirical front, studies demonstrate that so-called "folk psychology" pervades the Federal Rules of Evidence. (27) For example, the psychology-based claims underlying Rule 8o3(i)'s present sense impression exception, Rule 803(2)5 excited utterance exception, and Rule 8o4(b)(2)'s dying declaration exception face withering empirical challenges. (28) Indeed, modern social science experiments have so thoroughly vitiated the rationales for many rules that prominent judges have implored rulemakers to "beg[i]n paying attention to such studies." (29) On the normative front, evolving cultural and moral norms have rendered other Rules deeply problematic. Take Rule 609, which rests on the normative assertion that criminal offenders are inherently untrustworthy. (30) Rule 609's status-based claim about the veracity of those with previous criminal convictions is offensive, to say the least. (31) Rule 606(b), too, demands reform. By forbidding testimony about the jury's decisionmaking process, Rule 6o6(b)'s no-impeachment rule continues to act as a shield for prejudice in the deliberation room. (32) Few today would suggest that simply masking animus is an acceptable practice, yet the rule stands strong. Nevertheless, in the face of these (and more) pressing issues, rulemakers have been silent. There has been no effort--nor even a suggestion--to fundamentally reshape evidence law to account for modern understandings. To borrow the words of fellow commentators, rulemakers have instead chosen an "inherently conservative" approach, expressing a simple affinity for the general status quo. (33)

So, then, is evidence law dead? Are we resigned to a frozen regime that exclusively sees amending authority placed in the hands of rulemakers unable or unwilling to employ it?

Perhaps not. There's nothing new under the sun, and that applies, too, to positive law. Evidence law is not unique in having to navigate a stubborn positivist regime. Rather, the successes (and failures) of reform measures in cognate contexts point the path ahead for evidence law. That path begins with a turn toward jurisprudential theory.

Where a doctrinal space concurrently faces a pressing need for both positivist compliance and substantive evolution, reformers can strike an ideal balance by encouraging judicial adoption of a loosely-Dworkinian interpretive model that comparatively weighs two variables: "fidelity" and "justifiability." (34) That is, judges can achieve desirable change by pinpointing an application of the law that expresses sufficient fidelity to existing legal source material while also constituting the most normatively or empirically justifiable outcome within that permissible range. Legal outcomes remain constrained due to the requirement that judges remain adequately faithful to controlling law, but within that often-broad boundary, judges have significant latitude to best shape the law in light of external realities.

Though facially amorphous, bespoke fashioning of "fidelity" and "justifiability" underlies immense reform efforts in frozen doctrinal spaces akin to evidence law. For example, in the burgeoning interpretive approach of "living constitutionalism," we see reformers uniquely molding elements of the bivariant model...