Evidence History, the New Trace Evidence, and Rumblings in the Future of Proof

Abstract

This paper is in two parts. The first part is about developments in the rules of evidence and particularly about developments in the federal rules of evidence, which has had a major impact on evidence rules in many states. This part turns out to be largely about the past because my sense is that the impact of changes in the formal rules of evidence, which were substantial, are largely historic. To be sure future changes in the formal rules, particularly those that may be made as a result of the Supreme Court's decision in Crawford v. Washington (2004) that dramatically changed confrontation and may unleash hearsay reformulation, may be significant.

The second part deals with my sense that technological and scientific advances may make have a dramatic impact in altering the way cases, particularly criminal cases, are proved and evaluated in the future. For example, the development and proliferation of a new type of "trace evidence" - electronic "trace evidence" - is providing dispositive proof of a larger and larger group of cases. As jurors come to understand such dispositive proof exists in many cases, they are suggestions they may come to expect it in all, potentially changing how proof in criminal cases is evaluated. Of course, this speculation - these rumblings in the future of proof - is just speculation. However, there are reasons to suspect at least that as a result of the accumulation of events brought on by scientific and technological change, something significant is beginning to occur.