Ordering Proof: Beyond Adversarial and Inquisitorial Trial Structures
50 Pages Posted: 7 Mar 2015 Last revised: 16 Aug 2017
Date Written: February 27, 2015
In typical trials, judges and juries will find it easier to remember the proof that occurs early in the process than what comes later. Moreover, once a fact-finder starts to form a working hypothesis to explain the facts of the case, they will be biased towards interpreting new facts in a way that confirms that theory, rather than undermines it. These two psychological mechanisms will often combine to create a strong “primacy effect,” in which the party who goes first gains a subtle but significant advantage over the opposing party. In this article, I propose a new method of ordering proof, designed to minimize the inaccuracy or unfairness that can arise due to primacy effects. A neutral third person, rather than the parties, would have the responsibility to prepare an opening “statement of the dispute,” which would take the place of partisan opening statements. In lieu of separate, partisan cases-in-chief, this neutral third party would also decide the order in which witnesses testify, balancing considerations of clarity, efficiency, and neutrality between the parties. This proposed ordering would, however, be subject to variations by agreement among the parties. In a jury trial, the presiding judge could perform this function, while in non-jury trials, a magistrate judge or an appointed master would do so. After exploring the reasons why this new mode of ordering proof would be likely to improve the fairness and accuracy of our system without excessive cost or inconvenience, I propose a policy experiment, in which the proposed method is tested in a random selection of jurisdictions, so that its impacts on outcomes, costs, and litigant satisfaction can be measured.
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