Beyond the Witness: Bringing a Process Perspective to Modern Evidence Law

51 Pages Posted: 16 Sep 2018 Last revised: 18 Oct 2018

See all articles by Edward K. Cheng

Edward K. Cheng

Vanderbilt Law School

Alex Nunn

Yale University, Law School; University of Arkansas - School of Law

Date Written: September 1, 2018

Abstract

The focal point of the modern trial is the witness. Witnesses are the source of observations, lay and expert opinions, authentication, as well as the conduit through which documentary, physical, and scientific evidence is introduced. Evidence law therefore unsurprisingly concentrates on – or perhaps obsesses over – witnesses. In this Article, we argue that this witness-centered perspective is antiquated and counterproductive. As a historical matter, focusing on witnesses may have made sense when most evidence was the product of individual observation and action. But the modern world frequently features evidence produced through standardized, objective, and even mechanical processes that largely eliminate individual judgment. The traditional regime handles such process-based evidence poorly, relying on legal fictions and awkward procedures for handling things like forensic lab results, photographs, scientific articles, and business records. This Article therefore discards these fictions and proposes a broad new conceptual approach to process-based evidence. Our suggested reforms recognize process-based evidence on its own terms and provide a practical framework for testing and challenging it.

Keywords: evidence, process, standardization, forensics, photographs, hearsay, confrontation, discovery

JEL Classification: K10, K13, K14, K41

Suggested Citation

Cheng, Edward K. and Nunn, Alex, Beyond the Witness: Bringing a Process Perspective to Modern Evidence Law (September 1, 2018). Texas Law Review, Vol. 97, No. 6, 2019; Vanderbilt Law Research Paper No. 18-53. Available at SSRN: https://ssrn.com/abstract=3242588

Edward K. Cheng

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-875-7630 (Phone)

Alex Nunn (Contact Author)

Yale University, Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

University of Arkansas - School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

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