Constitutional Evidence Law
Brooklyn Law School
Vanderbilt Law Review, Vol. 61, 2008
Cardozo Legal Studies Research Paper No. 207
This Article identifies the causes and consequences of a puzzling asymmetry in constitutional law. Of the three facets of adjudicative fact-finding - evidence, procedure, and rules of decision - only two are constitutionalized. Constitutional law regulates procedural and decisional rules - not whether the evidence that fact-finders use is adequate. Allocation of the risk of error by procedures and decisional rules - formulated as burdens of proof - is subject to constitutional scrutiny. Allocation of the risk of error by the rules of evidential adequacy, however, is free from that scrutiny. This constitutional asymmetry is puzzling because all risk-allocation impacts court decisions and, consequently, whether a person is deprived erroneously of her liberty or property. This Article explains this asymmetry in the informal constitutionalization of evidence - a phenomenon that implicates three dynamics of power and culture. First, state evidence rules generally align with the Supreme Court's agenda for risk-allocation. Second, when those rules do deviate from the Court's agenda to promote local interests, they do not do so overtly. Finally, a state rule's alignment with a federal rule of evidence guarantees its constitutionality. This informal order reflects a series of implicit, but credible understandings between state courts and the Supreme Court. This Article identifies and illustrates these understandings.
Number of Pages in PDF File: 62
Keywords: evidence, constitution, due process, trials, burden of proof, risk of error
JEL Classification: K00, K10, K41
Date posted: November 19, 2007 ; Last revised: September 28, 2011
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