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Constitutional Evidence Law

62 Pages Posted: 19 Nov 2007 Last revised: 28 Sep 2011

Alex Stein

Brooklyn Law School


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.

Keywords: evidence, constitution, due process, trials, burden of proof, risk of error

JEL Classification: K00, K10, K41

Suggested Citation

Stein, Alex, Constitutional Evidence Law. Vanderbilt Law Review, Vol. 61, 2008; Cardozo Legal Studies Research Paper No. 207. Available at SSRN:

Alex Stein (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-0615 (Phone)

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