Bending the Rules of Evidence

52 Pages Posted: 25 Jan 2023 Last revised: 19 Jan 2024

See all articles by Edward K. Cheng

Edward K. Cheng

Vanderbilt Law School

G. Alexander Nunn

Texas A&M University School of Law

Julia Ann Simon-Kerr

University of Connecticut - School of Law

Date Written: January 24, 2023

Abstract

The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.

The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary rules are typically rigid, leaving little room for judicial discretion. When unforgiving rules require exclusion of evidence that seems essential to a case, courts face a Hobson's choice: stay faithful to the rules, or instead preserve the integrity of the factfinding process. Frequently, courts have found a third way, claiming nominal fidelity to a rule while contorting it to ensure the evidence’s admissibility.

This Article identifies and explores this bending of the rules of evidence. After tracing rule bending across many evidence doctrines, the Article explores the normative roots of the problem. Codification has ossified evidence law, effectively driving judges underground in the search for solutions to their evidentiary dilemmas. Rather than trying to suppress rule bending, we advocate legitimizing it. Specifically, the Article proposes a residual exception that would enable trial courts to admit essential evidence in carefully defined circumstances. Such an exception would bring rule bending out of the shadows and into the light with benefits to transparency, legitimacy, and accountability. And perhaps most importantly, it will re-establish trial courts as a partner in the development of evidence law.

Keywords: evidence, rule interpretation, hearsay, character, propensity, rape shield, privileges, codification

Suggested Citation

Cheng, Edward K. and Nunn, Alex and Simon-Kerr, Julia Ann, Bending the Rules of Evidence (January 24, 2023). Northwestern University Law Review, Vol. 118, No. 2, pp. 295-346, 2023, Texas A&M University School of Law Legal Studies Research Paper 24-11, Available at SSRN: https://ssrn.com/abstract=4336649 or http://dx.doi.org/10.2139/ssrn.4336649

Edward K. Cheng (Contact Author)

Vanderbilt Law School ( email )

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

Alex Nunn

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX Tarrant County 76102
United States

Julia Ann Simon-Kerr

University of Connecticut - School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

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