Constitutional Law and the Law of Evidence

66 Pages Posted: 23 Feb 2015 Last revised: 10 Nov 2015

Brandon L. Garrett

Duke University School of Law

Date Written: March 2, 2015


When a constitutional right conflicts with an evidentiary rule that would otherwise allow a piece of evidence to be admitted at trial, should the constitutional right be a “trump”? The Supreme Court and lower courts have often interpreted the Constitution to abstain from regulating questions of trial evidence. Taking the opposite course, courts have displaced evidence law to dramatic effect, as with the Court’s exclusionary rule, Confrontation Clause, and punitive damages jurisprudence. In areas that provide a more attractive model, the Court has instead sought to accommodate constitutional and evidence law. The fundamental problem of adjudicating the intersection of the Constitution and the law of evidence has not been the subject of judicial standards or academic commentary. Despite their importance, such questions have been seen as confined to the particular criminal or civil procedure contexts in which they arise. Indeed, I argue that due to this neglect, important rights, such as the Miranda right, have been misunderstood as outliers, sub-constitutional, or merely prophylactic. This Article develops why constitutional evidence law should in some respects be viewed apart from other areas of constitutional law. Second, I explore what norms should define the intersection of constitutional and evidence law. Third, I set out a framework in the form of standards of constitutional review, standards for avoidance, and canons of interpretation to govern intersections of constitutional law and the law of evidence. This Article ultimately seeks to describe the ways in which constitutional rights can intersect with rules of evidence, and how courts might more clearly and consistently approach such conflicts and questions. Far from being a subject to be avoided, constitutional rights have long protected against evidentiary abuses at trial. Conversely, evidence law principles can improve the effectiveness of constitutional protections and prevent unanticipated erosion of constitutional rights.

Suggested Citation

Garrett, Brandon L., Constitutional Law and the Law of Evidence (March 2, 2015). Cornell Law Review, Forthcoming; Virginia Public Law and Legal Theory Research Paper No. 14. Available at SSRN:

Brandon L. Garrett (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7090 (Phone)


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