55 Pages Posted: 17 Oct 2017
Date Written: October 16, 2017
The Federal Rules of Evidence purport to balance a legal tribunal’s search for the truth underlying a dispute with the tribunal’s ability to do so using fair and just procedures. Federal rule makers’ attempts to balance these competing interests, however, have resulted in significant ambiguity — and maneuverability — within the Federal Rules of Evidence that cunning advocates can use strategically to prove their case to the fact finder. Many legal scholars argue that advocates may be left to their moral code and sense of fair play in determining their willingness to avail themselves of ambiguities within the Federal Rules of Evidence. This Article suggests that this argument is insufficient.
This Article introduces the concept of the evidentiary trapdoor. Evidentiary trapdoors encompass myriad instances under the Federal Rules of Evidence where the application of an evidentiary rule flatly contradicts the rule’s plain language or where an advocate takes advantage of unintended ambiguities within the rule based on the incorrect assumption that the novel application of the Rule will increase the legal tribunal’s ability to reach an accurate verdict. This Article relies on the psychological literature on legitimacy and moral decision theory to argue that the use of evidentiary trapdoors to enhance the fact finder’s decisional accuracy has two perverse effects: (1) it lowers the public’s perceptions of the trial’s fairness; and (2) it causes the public to delegitimize the tribunal’s verdicts.
In support of these assertions, this Article reports the results of three original experiments. The experiments reveal (1) that the public perceives a legal tribunal’s decisional accuracy and its procedural fairness reciprocally, such that an increase in the former decreases the latter; and (2) the use of so-called “accuracy-enhancing” trapdoor evidence does not lead to decisions that the public perceives as more accurate, but instead contributes to the public’s lowered perceptions of the fairness and legitimacy of the legal tribunal. These findings have substantial implications for the future direction of evidence law, for the role of empirical research in legal policymaking, and for attorneys’ ground-level strategic decisions in litigation.
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