Beyond Cross-Examination: A Response to Cheng and Nunn
97 Texas Law Review Online 193 (2019)
10 Pages Posted: 26 Jul 2019
Date Written: July 24, 2019
In their thoughtful and important article, Beyond the Witness: Bringing A Process Perspective to Modern Evidence Law, Ed Cheng and Alex Nunn make a convincing case that existing evidence law’s focus on witnesses is antiquated and wrong-headed. As they explain, modern proof consists increasingly of evidence that involves standardized processes rather than what the authors call “ad hoc” human judgment.... In turn, the rules of evidence don’t quite know what to do with such “process-based” proof....
Notwithstanding Cheng’s and Nunn’s compelling case for better rules to govern process-based proof, their Article contains two key misconceptions that, I think, hinder the Article’s chances of being as persuasive and impactful as it could be. Those two key misconceptions are: (1) each piece of evidence has one “actual source” that is either a person or a process, and the designation of evidence as either “person-based” and “process-based” should thus determine which of two sets of evidentiary safeguards applies; and (2) cross-examination and other trial safeguards are the most appropriate means of testing and ensuring the reliability of “person-based” evidence, and thus the “world of witnesses” should “remain intact” even after the “process-based revolution” envisioned by the authors. In the pages that follow, I explain why these are misconceptions, and why they matter to the future of evidence law. I then offer an alternative way of thinking about all evidence, one that moves beyond an artificial dichotomy between “persons” and “processes” and instead focuses on ensuring that the jury has whatever contextual information it needs to meaningfully assess the probative value of the evidence. As it turns out, many of the wonderful concrete suggestions offered by Cheng and Nunn for scrutinizing “process-based” evidence – beyond cross-examination, toward enhanced discovery and other tools – would be equally beneficial if applied to human testimony.
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