Evidence Without Rules

43 Pages Posted: 6 Apr 2018 Last revised: 5 Feb 2019

Date Written: April 3, 2018


In courtrooms every day, fact finders rely on “evidence”—for example, a style of dress, the presence of family members in the courtroom, and of course race—that rarely passes as evidence in the formal sense, and thus breezes past evidentiary gatekeepers unseen and unchecked. “Evidence Without Rules” calls much needed attention to this other evidence and demonstrates that such unregulated evidence matters in ways that have real consequences. Jurors use this other evidence to decide whether to find for a plaintiff or defendant, whether a defendant should go free or be deprived of liberty, and whether the defendant is deserving of life or death. Even in cases that do not go to trial, this unregulated evidence has outsized consequences, since these cases are negotiated and settled in the “shadow of trial” with prospective jurors in mind. More broadly, the role of other evidence belies what we tell ourselves about the way justice works, that it is based on the “rule of law.” The truth is less comforting. The determination of outcomes, notwithstanding the Rules of Evidence, is often rule-less. To address this state of affairs, this article first offers a modest proposal, a simple jury instruction and directive. It then offers a solution that is anything but modest—a radical rethinking of the Rules of Evidence.

Keywords: Evidence, race, gender, dress, demeanor, appearance, capital punishment, accents, jury instructions

Suggested Citation

Capers, I. Bennett, Evidence Without Rules (April 3, 2018). Notre Dame Law Review, Vol. 94, p. 867, 2018, Brooklyn Law School, Legal Studies Paper No. 554, Available at SSRN: https://ssrn.com/abstract=3155477

I. Bennett Capers (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics