Rules of Evidence in Nonjury Trials

A friend called my attention this afternoon to the intriguing exchange between Professors Frederick Schauer, Jennifer Mnookin, and Walter Sinnott-Armstrong about the relationship between trial by jury and (legal) rules of evidence. Professor Schauer, who began the exchange, challenges the assumption -- held, he notes, by John Henry Wigmore -- that the connection between jury trial and rules of evidence is intimate. And he makes some very nice points.

Being one of Wigmore's revisers, I feel entitled -- impelled, even -- to barge into this discussion. (As a reviser of one part of the Master's Treatise I have this right ex cathedra, as it were.) In Section 4d.1 of 1 John Henry WigmoreEvidence in Trials at Common Law (P. Tillers. rev. 1983) I questioned, although I did not directly challenge, the Master's view about the relationship between the law of evidence and the "jury-system." (Wigmore's views about this relationship were rather more complex and nuanced than the usual snippets quoted by commentators might suggest. But that's another story.)

Before I grace these pages with some of the thoughts I expressed more than 20 years ago, I would like to call the gentle Reader's attention to a sentiment I expressed in the preface to my revision of the first volume of Wigmore's Treatise:

Much of the new discussion I present in this revision is attributable to the peculiar character of the first volume of the third edition of the Treatise, in which Wigmore set forth the basic theoretical framework for the entire treatise. Two general perspectives inform Wigmore's treatment of every branch of the law of evidence. The first perspective is his view of the relationship between the exclusionary rules of evidence and the institution of trial by jury; the second perspective is his view of the nature of proof and inferential processes and of the relationship of those matters to the exclusionary rules. I have devoted much discussion to these two general perspectives because of my conviction that they are of fundamental importance to the structure of the entire treatise and, more generally, to a meaningful assessment of the nature and purposes of the law of evidence.

A bit later in this longish post I will make a brief point about the importance of the heuristic functions of rules of evidence. But before I do that, I want put before you some things I said in the early 1980s about rules of evidence in nonjury trials. But even before I do that, I would like to suggest that a treatise writer (and also a treatise reviser) tends to acquire a perspective on law that is uncharacteristic of many law teachers today. A treatise writer, being immersed in a huge mass of legal material, quickly becomes aware of the fact that the legal realists were onto something. The treatise writer understands that it is unlikely in the extreme that any single rationale undergirds any body of law.

At the begining of Section 4d.1, in note 1, I wrote:

A considerable amount of [the] discussion of rules of evidence in nonjury trials is the byproduct of reflections on the place of the law of evidence in administrative proceedings. See particularly the materials by Davis supra. See also Davis, Evidence Reform: The Administrative Process Leads the Way, 34 Minn. L. Rev. 581 (1950). See also, e.g., Note, Evidence — Hearsay — Adoption of Liberal Admission Rules of Administrative Tribunals in Antitrust Court Action, 5 Vand. L. Rev. 655 (1952) (comment on United States v. United Shoe Mach. Corp., 89 F. Supp. 349 (D. Mass. 1950)). Hence, there has been an understandable tendency to assume that the same considerations apply with respect to the problem of the use of rules of evidence in both administrative proceedings and in bench trials. This view rests on the assumption that all the differences between administrative proceedings and bench trials save one — the absence of a jury — are immaterial. (Professor Davis asserts that rules of evidence are inappropriate in all governmental nonjury proceedings of any character whatsoever.)

We have chosen not to paint with so broad a brush. In the first place, the actual extent to which rules of evidence are applied in various types of nonjury proceedings cannot be succinctly or easily described. (See, e.g., administrative proceedings, §§ 4a through 4c supra; arbitration proceedings, § 4e infra; and presidential impeachment trials, § 4j infra.) Furthermore, the decisive importance attached to the absence of a jury can be questioned. There are significant differences, for example, between administrative proceedings and bench trials that may offer an explanation, and perhaps a justification, for the greater willingness to use rules of evidence in bench trials. Thus, for example, the participants in a bench trial, unlike some participants in administrative proceedings, are generally familiar with rules of evidence, and in a bench trial the usual courtroom procedures are available to deal with the logistics involved in the presentation of evidence and in the making and recording of rulings on objections and matters such as offers of proof. Moreover, a bench trial is still generally regarded as a judicial proceeding, and there may be a general sense, particularly in the legal priesthood, that the use of rules of evidence is part of what it means for a court to "act like a court"; arguably, this expectation, if shared by the public, is not one that should be lightly disregarded. (See further discussion in text infra.) These considerations, and other considerations peculiar to other types of proceedings, have to be analyzed to determine the wisdom and propriety of a uniform principle that rules of evidence should be jettisoned in all nonjury proceedings wherever conducted. (Distinctions among the types of rules of evidence involved may also have to be made. See, e.g., discussion in text relating to privileges and matters such as standards of proof.)

There is little doubt that the traditional emphasis on rules of evidence as "jury trial rules" must be broadened. As many observers have noted, bench trials now greatly outnumber jury trials. Furthermore, many disputes that might have been resolved by judicial machinery are now funneled, at least in the first instance, into other tribunals, such as administrative agencies and arbitration proceedings. Examination of the actual conduct of various types of proceedings reveals a surprising measure of attachment to evidentiary rules and practices that in many respects resemble traditional rules of evidence. This attachment to rules of evidence is of course interesting and important in its own right, but it is also of interest for the light it may shed on the reasons for the use of rules of evidence in jury trials. Traditionally, it has been assumed the exclusionary rules, at least, serve primarily to guard against inaccurate factfinding by juries. The use of rules of evidence in a variety of nonjury proceedings may suggest that the basis of exclusionary rules of evidence does not rest entirely or primarily on epistemic considerations. Conversely, the use in nonjury proceedings of certain types of rules of evidence, particularly those rules apart from the exclusionary rules, serves to highlight the possibility that there are legitimate epistemic considerations that justify resort to those rules even when there is no jury that (we suppose) must be prevented from misestimating the value of the evidence put before it. (We think here of rules quite apart from rules such as those that allocate burdens of proof among the parties. Rules allocating factfinding burdens and responsibilities among the parties establish a kind of general factual framework — a canvas — upon which and through which the parties are required to sketch a different picture by presenting evidence that varies or restores those general initial assumptions about what we must believe happened if we are not given any reason to believe otherwise. These sorts of rules may be necessary in any formal system of adjudication.)

While Professor Davis has argued that the traditional exclusionary rules are generally inappropriate in administrative proceedings, he does not believe that there should be no rules governing the admissibility of evidence in administrative proceedings. As he put it in a letter, he believes that "meaningful evidence must be received in absence of a sensible reason for exclusion." Letter from K. Davis to Peter Tillers (March 16, 1992) (on file with Little, Brown & Co. and with the reviser). And he is quite right in saying that this rule, while different from the traditional exclusionary rules, is a rule. Id.

The gentle Reader may justifiably wonder why a 1992 letter -- from Professor Davis -- appears in a book putatively published in 1983. The answer has to do with the liberties that online databases now permit: Professor Davis' letter and my response to it appear in the online version of the 1983 revision of the first volume of the Treatise.

In the body of Section 4d.1 of my 1981 revision these comments (among others) appear (footnotes omitted):

The widespread use of these various [previously-enumerated] principles does result in a relaxation of the rules of evidence in bench trials, but it is an exaggeration to say that "technical" rules of evidence are inapplicable in bench trials.

First, some states clearly and simply reject the notion that exclusionary rules should be more liberally and freely applied in nonjury trials.

Second, some courts do not take the view that the presumption (described above) implies that the trial judge should apply different standards of admissibility; the presumption is only a peculiar application of the principle that reversal may be had only for prejudicial error. Moreover, the presumption is rebuttable, and a trial judge who admits on the record that he relied on improper evidence will be reversed under this rule if the error is otherwise prejudicial. See note 6 supra.

Third, the right to relax the rules does not give the trial court a parallel right or privilege to exclude evidence that is ordinarily admissible; judgment will ordinarily be reversed if he does so. Hence, the trial court in a bench trial is required to apply exclusionary rules which are more liberal than the ordinary exclusionary rules and which, in any event, are no more restrictive. (It is doubtless not the case that the trial court is required or permitted to admit all evidence the parties may care to offer, however tangential it may be. See discussion in text infra.)

Fourth, codifiers of evidence refused to make any express distinction between jury and nonjury trials even though the argument of the need for the distinction was well known.[fn18] (Professor Davis, among others, expressly urged the Advisory Committee to the Federal Rules of Evidence to make the distinction. His plea went unheeded. See note 3 supra.)

Fifth, the relaxation of the rules permitted in many states does not apply at all to a wide range of evidentiary rules. Thus, for example, privilege rules apply in bench trials[fn19] and the constitutionally mandated exclusionary rules (see, e.g., §§ 815-863 and §§ 2183-2184a infra) apply in bench trials.[fn20] Similarly, rules regarding presumptions, burdens of proof, and the like are applied in bench trials and the rules regarding character evidence in criminal cases are routinely applied. Furthermore, quite apart from constitutional exclusionary rules, many other constitutionally mandated evidentiary rules apply in some fashion in bench trials. Thus, for example, guilt in a criminal prosecution must always be shown beyond a reasonable doubt. See §§ 2497-2497a infra.

Sixth, it seems obvious that procedural rules designed to maintain the integrity of the adversary process in relation to evidentiary matters and to protect the dignity of the parties are applicable in jury and nonjury trials alike.

Seventh, and finally, many trial judges apply exclusionary rules in bench trials as a matter of practice.

All in all, the maxim that technical rules are inapplicable in nonjury trials must be taken cum grano salis.

The principle that strict rules of evidence do not apply in nonjury trials has its primary significance in broadening the standards of relevancy applicable in bench trials and in moderating the exclusionary force of nonconstitutional exclusionary rules such as the hearsay rule. Nonetheless, even in bench trials, trial courts do not admit any evidence a party may care to submit, and the exclusionary force of the principle of relevancy, though greatly moderated, still retains some significance. This in itself is no great surprise and should not be the cause for woe. The lessons of administrative practice (see § 4c supra) teach us that a heavy price may be paid for the absence of significant constraints on the admission of evidence offered by parties. Any system of procedure that vests authority in private parties to conduct a lawsuit must make some effort to prevent the parties from Dickensian efforts to prolong lawsuits in an attempt to frustrate justice; it is not surprising (therefore?) that trial judges in bench trials still may exclude evidence offered by the parties (since even the application of liberal substantive standards of relevancy may suggest that some evidence offered by the parties has relatively insignificant probative value). It is quite another matter to explain the surprising persistence in bench trials of the use of fixed exclusionary rules such as the hearsay rule. The use of such rules is left unexplained by the traditional view of the function of such rules. (See citations in note 1 supra, and see citations and discussion in § 4c supra.) In a bench trial there is no jury and no need to screen out categories of evidence the jury is likely to misestimate the value of. The vesting of the administration of the exclusionary rules in the judiciary rests on the premise that judges, unlike juries, are better able to make reliable estimates of the value of categories of evidence the jury is not allowed to see. In any event, in a bench trial the screener of the evidence is also the factfinder; thus the prophylactic effect of the exclusionary rules is greatly diminished even if we assume that a judge's decision to exclude evidence in a bench trial produces a mental reorientation that frequently leads to some degree of appropriate discounting of the value of the excluded evidence. The argument that the use of exclusionary rules in bench trials saves time is often unconvincing:

[Experience has demonstrated that in a trial or hearing where no jury is present, more time is ordinarily lost in listening to arguments as to the admissibility of evidence and in considering offers of proof than would be consumed in taking the evidence proffered, and that, even if the trier of facts, by making close rulings upon the admissibility of evidence, does save himself some time, that saving will be more than offset by the time consumed by the reviewing court in considering the propriety of his rulings and by the consequent delay in the final determination of the controversy."[Builders Steel Co. v. Commissioner. 179 F.2d 377, 379 (8th Cir. 1950).]

The stubborn persistence of the exclusionary rules in bench trials strongly suggests that the rationale for the various exclusionary rules is not as simple as we sometimes suppose. And, on reflection, we have little reason to be surprised at the failure of those rules to yield to simple logic. Complex social and legal practices such as are reflected in the rules of evidence are never likely to be either explained or justified by reference to a single purpose; and if we focus on the reasons for our attachment to rules of evidence as we now have them, as opposed to trying to justify their use in nonjury trials, we quite plainly have to refer to a number of purposes and interests, none of which may be safely singled out as being predominant, much less as being of exclusive significance and interest. Thus, for example, we cannot easily discount the possibility that lawyers may have an interest in preserving a familiar system of trial and proof. One historical study lends strong support to the thesis that the rules of evidence serve the legal profession's interest in predictable judicial administration of trials. This interest in the use of rules of evidence at trial may not merely be a matter of economic self-interest or intellectual inertia but may derive from deeper and tougher roots, which implicate the legal profession's basic conceptions of the nature of legal authority and of the characteristics that make it legitimate. Professor Langbein, reflecting on the reasons for the use of torture in older systems of trial and the use of plea bargaining in ours, wrote in Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 19-20 (1978):

[A] legal system will do almost anything, tolerate almost anything, before it will admit the need for reform in the system of proof and trial. [Medieval torture and modern plea bargaining are] shoddy subterfuges [that are] tenacious [because] they shield their legal systems from having to face up to the fact of breakdown in the formal law of proof and trial.

Why is it so hard for a legal system to reform a decadent system of proof? I think there are two main reasons: nothing is quite so imbedded in a legal system as the procedures for proof and trial, because most of what a legal system does is to decide matters of proof — what we call fact-finding. . . .

The intertia, the resistance to change that is associated with such deep-seated interests [viz., institutions of the legal system that are geared to a particular system of proof] is inevitably reinforced by the powerful ideological component that underlies a system of proof and trial. . . . Because the theory of proof purports to govern and explain the application of the adjudicative power, it plays a central role in legitimating the entire legal system.

There may be less dismal reasons for our attachment to exclusionary rules in bench trials than those Professor Langbein offers. In another context (see § 4c supra), we have suggested that rules of evidence such as the hearsay rule effectively function as preferential rules that force the parties to look for and produce more reliable evidence — a matter of no small concern when the finding and presentation of evidence is largely left in the hands of the parties rather than in those of the court. Furthermore, the critics of the exclusionary rules may have given insufficient consideration to the possibility that many traditional rules of evidence serve important purposes apart from the promotion of accuracy in the factfinding process. (This is an excusable dereliction since traditional scholarship in the law of evidence has made truthfinding the paramount concern. See § 37 infra.) Thus, for example, the hearsay rule may indeed serve to protect (however imperfectly) the primitive notion that one should have the opportunity to confront one's "accuser." Finally, we have already alluded to the possibility that informality in the trial process does not satisfy the community's deep-seated desires that a court act "like a court." (It is quite unclear, however, whether the laity thinks that courts do not act or look like courts if they fail to observe rules of evidence similar to those now in use. Cf. § 4h infra (rules in voluntary associations).)

Now a word about heuristics and rules of evidence. My 1983 comments emphasized that rules of evidence may serve non-epistemic purposes. I did talk there about how rules of evidence may function as rules of preference, a point that Professor Dale Nance has usefully elaborated in great detail. But I shied away from emphasizing that rules of evidence serve may reflect societal judgments about the probative value of evidence. Part of my reason for de-emphasizing this sort of epistemic basis for rules such as the hearsay rule was that at that time in my life -- before 1983 -- I was very impressed with how very slight variations in evidence can dramatically alter the probative value of evidence and how difficult therefore it is to group evidence into broad categories and make defensible judgments about the probative value of such classes of evidence. However, I have increasingly come to think that rules such as the hearsay rule serve the important purpose of forcing at least the trial judge (and also the trial lawyers) to ruminate about the value of proferred evidence by thinking about the fact (for example) that the source of the evidence is not in court. An example of how a rule of evidence -- the inference-on-inference rule -- can be turned into a heuristic procedure is supplied by the Tenth Circuit's treatment of the no-inference-on-inference rule. See The Tenth Circuit Makes Pretty Good Sense of the Inference-upon-Inference Rule

Rationale(s) for Rules of Evidence

"The" reason for rules of evidence has been discussed (though usually cursorily) many times. Many but not all of those discussions have been simplistic, and many of them (though not all) have said "the" reason for rules of evidence is the need to control jury decision making. There is a refreshing new article about the rationale(s) for rules of evidence in the English common law style (which the English themselves seem to be in the process of abandoning): Lisa Dufraimont, "Evidence Law and the Jury: A Reassessment," 53 McGill L.J. 199 (2008).

Here is the article's abstract:

The common law of evidence is counterintuitive because it seeks to facilitate the search for truth by regulating fact-finders' access to and evaluation of evidence. Since truth seems most likely to emerge when adjudicators reason freely from all available information, this puzzling strategy of seeking truth through evidentiary regulation demands some explanation. The orthodox explanation is that evidentiary regulation functions as a form of judicial control over the jury. Because juries arc untrained, non-professional adjudicators, they are said to lack the competence to evaluate evidence. On this view, evidence rules arc primarily directed at constraining jury decision making and preventing jury error. This jury-centred view has been criticized, and scholars have advanced other explanations for truth-seeking evidence rules. Some suggest that evidence law operates chiefly to promote the search for truth within the context of the adversary system, while others contend that evidence rules are primarily directed at managing the risk of witness dishonesty.

This article examines the claim that evidence law represents a form of jury control, and also considers some competing explanations for evidence rules. The author argues that no single principle explains the law of evidence. A complex set of explanations is needed to account for the historical origins of the rules and to justify them analytically. Moreover, the salience of these various explanations can only be judged in particular doctrinal contexts. Jury-related rationales are most persuasive where there are solid reasons to believe that juries have trouble evaluating the particular form of evidence at issue. Social-scientific research does not support the conclusion that juries are generally incompetent adjudicators, but it does indicate that juries struggle with specific types of evidence. Consequently, the question whether a particular evidence rule can be justified on jury-control grounds depends, first, on the specific competencies required to evaluate the evidence and, second, on what is known about jury psychology and behaviour.

Here is a statement of the article's (refreshing) thesis (which, to my eyes, runs in the tradition of American legal realism), the thesis that no single principle or rationale animates the existence and contours of rules of evidence in the common law style:

The debate over the explanatory principles of evidence law is largely a debate about whom to mistrust. Is our fear that juries may misconstrue the evidence, that adversaries may obscure the truth, or that witnesses may perjure themselves? Of whom are we afraid, and whom are we trying to control? It seems doubtful that these questions can ever be answered in any decisive way.

Certainly some authors identify one explanatory principle as the primary, underlying principle of evidence law. Thayer, among others, focused on the jury, while recently evidence scholars have suggested that the central rationale for evidence law lies elsewhere. Nance argues that the best evidence principle, which is concerned with advocate control, constitutes a superior explanatory principle to the traditional jury-centred rationale for evidence law. According to Imwinkelried, both of those explanatory principles are inferior to the dishonesty-control rationale, which he claims constitutes "the best explanatory hypothesis for the logical structure of Evidence law." [FN236] The modern theorists admit forthrightly that no one principle explains the totality of evidence law, an admission that militates in favour of interpreting their claims modestly. [FN237] But beyond arguing the explanatory power of the various rationales for evidence law, these scholars purport to choose the best, unifying theories, or even to explain the law's "logical structure". [FN238] Such ambitious claims are difficult to defend.

The search for an "organizing principle" [FN239] of evidence law is vain because evidence law is not organized around a principle. Given the ad hoc nature of evidentiary regulation, there is no reason to believe that the various possible rationales for evidence rules are mutually exclusive. A more tenable position is to recognize that various factors, including the trial features under consideration, play a role in explaining evidence law. [FN240] The origins and justifications of evidentiary rules are best uncovered in specific doctrinal contexts. And one could easily add yet more layers of complexity to the picture. Issues that cannot entirely be disentangled from the explanatory principles include extrinsic policy considerations like fairness and due process, as well as concerns about the efficient conduct of the trial process, such as affordability, speed, and finality.

It seems to me that it is no accident that two of the mentors of the author of this delightful article are Steven Duke and Mirjan Damaska of Yale Law School.

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Jurors and Lay Assessors in Trials in South Africa

The Pistorius case led journalists to discover that South Africa does not have the sort of jury system that is found in the United States and (in some trials) in the U.K.


"Review of the Law of Evidence," SOUTH AFRICAN LAW REFORM COMMISSION, Issue Paper 26, Project 126 (January 2008) (footnotes omitted): 2.9  Lay participation in the formal judicial system in South Africa dates back at  least to the nineteenth century where justices of the peace and occasionally elected  veldcornetten “administered law in many frontier areas”. Although prior to 1954 there was not an absolute colour bar in the vast majority of cases the jury was compromised of nine white men. Trial by jury in civil cases was abolished in 1926  and there was a steady decline of the use of juries in criminal trials and by the 1960’s less than one percent of criminal trials was by jury. Jury trials were abolished by  the Abolition of Juries Act 34 of 1969. In the 1970's and 80's there was minimal lay  participation in the formal judicial system. The 1990's saw the re-emergence of the  use of lay assessors in both the magistrates and superior courts. Section 34 of the Magistrates’ Court Act 32 of 1944 permits the court in civil actions, ”upon the  application of either party, to summon to its assistance one or two persons of skill  and experience in the matter to which the action relates who may be willing to sit and  act as assessors in an advisory capacity”. Section 93ter makes provision for the use of lay assessors in criminal trials. A magistrate presiding over a criminal trial may if he/she deems it expedient for the administration of justice, before any evidence has been led or in considering a community-based punishment in respect of any person who has been convicted of any offence, summon one or two assessors to assist him or her at the proceedings. However, the provisions are more peremptory in respect of murder trials in the regional court where the presiding officer must summon two assessors to assist him or her, unless the accused requests that the trial be proceeded with without assessors, in such a case the use of assessors is within the discretion of the presiding officer. In the High court it is generally within the presiding officer’s discretion whether to sit with an assessor in criminal matters. Lay assessors are used in a number of civil tribunals.
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The Commission considered the question of the appropriate relationship between the law of evidence, on the one hand, and juries and assessors, respectively, on the other hand. The Commission wisely discussed the differences and similarities between the common system of trial by jury and South Africa's current assessor system (footnotes omitted): 2.10 Professor SE van der Merwe succinctly summarises the distinction between jurors and assessors as follows:    “Assessors in lower courts and in the Supreme Court can to some extent be  compared with jurors as they are all finders of fact and do not decide legal issues. But our system of adjudication differs materially from trial by jury. The role of jurors can briefly be summarized as follows: jurors are lay people and sole finders of fact. They listen to the evidence and hear arguments, and they receive a summing-up and instructions from the presiding judicial officer: They are then called upon in their capacity as sole finders of fact to consider  and reach their verdict in the absence of the presiding judicial officer. And they are not required to advance reasons in support of their verdict. But in our system the judge or magistrate is at all times either a sole finder of fact or, where assessors are involved, a co-finder of fact. A judge must give reasons for his verdict. Magistrates almost invariably do give reasons for their verdict and, failing which, they may in certain circumstances be legally required to do so. It is true that the function of assessors can be compared with the function of jurors, because the function of assessor - with one exception - is also limited to fact finding. But assessors - unlike a jury - must give reasons for their verdict. They either agree or disagree with the presiding judicial officer’s reasons and finding, and in the event of a disagreement must furnish their own reasons in a separate judgment which is read out in court by the presiding judicial officer. And assessors - unlike jurors - are under constant and immediate judicial guidance in the sense that a judge (or magistrate) and the assessors involved in the trial have joint deliberations in reaching their respective verdicts. During these deliberations the presiding judicial officer can and must draw the attention of assessors - who of course may be lay people - to certain rules which govern the evaluation of evidence, for example, the cautionary rule, the rules governing inferences drawn from circumstantial evidence, and those rules which determine the effect of an accused's silence on the evaluation of the prosecution’s prima facie case.”
2.11 The absence of a jury and the somewhat different role of lay assessors in our courts as joint fact finders who are subject to the continual guidance of the court and who are required to give reasons for their decisions calls into question whether our jury based rules of evidence remain appropriate.
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The Commission discussed some interesting general questions -- or, in any event, general questions that interest me. For example, in its Conclusion the Commission stated: 5.  FORMUALTING [sic] PRINCIPLES FOR REFORM: QUESTIONS FOR COMMENT Χ What is the scope of the law of evidence? Should the focus of evidence law be exclusively on the trial or should other stages of the process be considered as well? Χ Should the exclusionary rules directed at controlling juries in the exercise of their fact finding function be re-placed by judicial discretion?  Χ To what extent should relevance and weight be regulated?  Χ To what extent should  public and social interests be reflected in evidence law?  Χ Should there be different rules for different courts and tribunals? Χ What should be the primary purpose of the rules of evidence in the trial process? In particular to what extent should evidence law facilitate all or any of the following policies:  -  rationality and truth-finding?  - party freedom?  - procedural fairness?  - public interest?  - efficiency and finality?
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The Commission discussed the views of, inter alia, William L. Twining, John Henry Wigmore, Kenneth Culp Davis, and John Jackson.
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More later.
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Criminal Defendant's Right to Present Exculpatory Evidence

Defendant was charged with various immigration-related offenses. Conviction of each offense depended on satisfactory proof that defendant was an illegal alien. The trial court rejected defendant's offer of Idaho birth certificate, which tended to show that defendant was born in the United States and therefore was a citizen of the United States. The Ninth Circuit US Court of Appeals held (2-1) that the trial court had committed reversible error. United States v. Evans, 720 F.3d 953 (9th Cir. 2013). The Court of Appeals made the following points (footnotes omitted):

"The Constitution 'guarantees criminal defendants a meaningful opportunity to present a complete defense.' United States v. Stever, 603 F.3d 747, 755 (9th Cir.2010) (internal quotation marks omitted). This right includes 'the right to present the defendant's version of the facts,' Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and to 'put before a jury evidence that might influence the determination of guilt,' Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); see also Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) ('The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations.'). We have acknowledged that this right is not 'absolute,' and Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir.2003), since the 'him adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments,' and Taylor v. Illinois, 484 U.S. 400, 410–11, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). However, ‘"when evidence is excluded on the basis of an improper application of the evidentiary rules,"’ the the danger of a due process violation is particularly great, since ‘"the exclusion [of the evidence] is unsupported by any legitimate ... justification."’ Stever, 603 F.3d at 755 (brackets omitted) (quoting United States v. Lopez–Alvarez, 970 F.2d 583, 588 (9th Cir.1992)). We therefore begin our analysis by considering whether the district court properly applied the Federal Rules of Evidence. We conclude that it did not.

"A.

"The district court invoked Rule 104(a) as the source of its 'gate-keeping' authority. Rule 104(a) states that the court 'must decide any preliminary question' of fact or law about three types of issues: whether (1) 'a witness is qualified,' (2) 'a privilege exists,  him'or (3) 'evidence is admissible.' Fed.R.Evid. 104(a); see also Fed.R.Evid. 104(a) advisory committee notes.FN5 We have previously considered the trial court's gate-keeping function as it applies to the first two issues, but we have not explicitly considered the scope of the trial court's gate-keeping function with regard to the third issue.FN6 We conclude that the trial court's authority to determine if evidence is admissible pursuant to Rule 104(a) is necessarily limited by other rules of evidence—most importantly, Rule 402, which provides that evidence is admissible so long as (1) it is relevant, and (2) it is not otherwise inadmissible under, inter alia, the Federal Rules of Evidence. Fed.R.Evid. 402 ('Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible.').

"Thus, Rule 104(a) provides the trial court with the authority to decide questions that might make evidence inadmissible under some other rule of evidence (or under the Constitution, a federal statute, or other Supreme Court rules), but it does not itself provide a substantive basis for excluding the evidence. ...

"In each of the above [enumerated] scenarios, the trial court uses its Rule 104(a) authority to determine 'the existence of a condition,' which in turn determines '[t]he applicability of a particular rule of evidence.' Fed.R.Evid. 104(a) advisory committee notes. We have not previously considered whether a trial court can exclude evidence pursuant to Rule 104(a) without relying on some substantive basis outside of Rule 104(a), such as another rule of evidence, a federal statute, or the United States Constitution. We now hold that it cannot.FN7 See Fed.R.Evid. 402. To the extent that the district court here invoked an umbrella 'gate-keeping' him authority to exclude Evans's birth certificate so as to avoid a 'miscarriage of justice,' it exceeded the scope of its authority under Rule 104(a).FN8

"B.

"Because the trial court must admit evidence that is (1) relevant, and (2) not inadmissible under, inter alia, some other rule, Fed.R.Evid. 402, we next consider whether these conditions are met here. The government argues that the birth certificate is irrelevant because even if it was 'genuine in form,' it was 'not [genuine] in substance.' We disagree. The fact that the birth certificate was properly issued by the State of Idaho establishes that it is 'of consequence' him to an issue in both cases—Evans's claim of United States citizenship—and that it has some 'tendency to make [his alleged citizenship] more ... probable than it would be without the evidence.' Fed.R.Evid. 401. FN9 This establishes him that the birth certificate was relevant to all the counts in both cases.

"Furthermore, to the extent the district court conditioned the relevance of the birth certificate upon its 'substantive genuineness,' it erred in its application of Rule 104(b). This rule provides that where 'the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.' Fed.R.Evid. 104(b).FN10 If 'the foundation evidence is sufficient to support a finding of fulfillment of the condition ... the item is admitted.' Fed.R.Evid. 104(b) advisory committee notes. Furthermore, if 'after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not established,' the evidence is admitted, because 'the issue is for [the jury].' Id. (emphasis added). Only if 'the evidence is not such as to allow a finding, [does] the judge withdraw[ ] the matter from [the jury's] consideration.' Id. Of critical importance here, when 'determining whether the [party introducing evidence] has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the [party] has proved the conditional fact by a preponderance of the evidence.' Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (emphasis added). 'The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact ... by a preponderance of the evidence.' Id.

"Here, although the district court did not specifically cite to Rule 104(b), its conclusion that no 'reasonable person' could 'determine that the Defendant's Idaho birth certificate is substantively genuine' draws its language and reasoning from Rule 104(b). But in reaching the conclusion that no reasonable person could find that Evans's birth certificate was substantively genuine, the district court erroneously weighed the credibility of the government's witnesses against the credibility of the official state document. Indeed, it expressly found that 'all three of the Government's witnesses were credible.' This was error. The fact that the birth certificate was an official document, issued by the Idaho Bureau of Vital Records and Health Statistics, provided a sufficient basis upon which a juror could conclude that the birth certificate was 'substantively genuine.' And to the extent the Government's evidence suggests otherwise, the issue boils down to the credibility of the parties' conflicting evidence, which is a question for the jury to decide.FN11 We therefore hold that to the extent the district court relied on Rule 104(b) in excluding the birth certificate, it erred.

"C.

"We next turn to the district court's application of Rule 403. As part of its authority to decide preliminary questions of law pursuant to Rule 104(a), the trial court may exclude relevant evidence if 'its probative value is substantially outweighed' by, inter alia, the danger of unfair prejudice, misleading the jury, or undue delay.FN12 Fed.R.Evid. 403; see also Hankey, 203 F.3d at 1168 (recognizing that the court's Rule 104(a) authority allows it to exclude evidence under Rule 403). The district court here concluded that Evans's birth certificate was inadmissible under Rule 403 because it was 'without probative weight' and could 'only lead to undue delay.' This was legal error. 'Weighing probative value against unfair prejudice under [ Rule] 403 means probative value with respect to a material fact if the evidence is believed, not the degree the court finds it believable.' Bowden v. McKenna, 600 F.2d 282, 284–85 (1st Cir.1979) (citing 22 C. Wright & K. Graham, Federal Practice & Procedure: Evidence, § 5214, at 265–66 (1978)) (emphasis added). The court may not exclude relevant evidence—or, in this case, assign it no probative value—on the ground that it does not find the evidence to be credible. See United States v. Candoli, 870 F.2d 496, 509 (9th Cir.1989) ('[A] conflict in the evidence goes to the weight of [the evidence], not to its admissibility.').

[snip. snip]

"Admission of the birth certificate also would have posed a low risk of confusing or misleading the jury. Although the birth certificate would have increased the chances that the jury would acquit Evans, such a result could not be attributed to the jury being confused or misled; to find otherwise would be to prejudge the 'correct' outcome of the trial before it occurs. See, e.g., United States v. Crosby, 75 F.3d 1343, 1349 (9th Cir.1996) ('"[I]f the evidence [that someone else committed the crime] is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt."’ (quoting 1A John Henry Wigmore, Evidence in Trials at Common Law § 139 (Tillers rev. ed.1983)) (alterations in original)). It is the jury, not the trial judge, that must decide how much weight to give to Evans's delayed birth certificate in light of the government's evidence suggesting that the birth certificate is fraudulent and that Evans is not a United States citizen. We therefore conclude that it was an abuse of discretion for the district court to exclude Evans's delayed birth certificate under Rule 403.

"E.

"We next consider whether the exclusion of the birth certificate rose to the level of a constitutional violation. We hold that it did.FN15 'The Ninth Circuit has found ... violations [of the constitutional right to present a defense] where the district court incorrectly excluded evidence that was necessary for the defendant to refute a critical element of the prosecution's case.' Pineda–Doval, 614 F.3d at 1033.

"... Here, as in Stever, the excluded birth certificate was (1) the main piece of evidence, (2) for the defendant's main defense, to (3) a critical element of the government's case. On this ground, we conclude that the exclusion of the birth certificate amounted to a deprivation of Evans's due process right to present a defense. See United States v. Ramirez, 714 F.3d 1134, 1139 (9th Cir.2013) ('To be sure, the Constitution protects a criminal defendant's right to argue a point that goes to the heart of his defense.')."

************

Gould, J., dissenting, wrote (footnotes omitted):

I take a different view and would affirm the district court for three reasons.

First, Federal Rule of Evidence 104(a) literally permits a district court to perform a threshold review of the admissibility of evidence. Even if Rule 104(a) is limited to the “preliminary requirements or conditions that must be proved before a particular rule of evidence may be applied,” United States v. Brewer, 947 F.2d 404, 409 (9th Cir.1991), that does not prevent the court from excluding illegitimate evidence when excluding such evidence is the very reason rules of evidence exist. I have no problem reaching the firm conclusion that illegitimate evidence may permissibly be held to be inadmissible due to its inaccurate nature. We should make that our precedential point, rather than the approach favored by the majority.

I illustrate with a thought experiment or hypothetical. Let's say that an organized-crime czar is charged in a serious case and wants to present “exculpatory” evidence. But the prosecution has independent evidence that the defense evidence is as phony as a $3 bill. It might be fraudulently obtained (such as the legitimate document here that was procured by fraudulent means). Or it might be the product of extortion (such as through a threat like “I will kill your children if you don't give me an alibi”). Or it might be the product of bribery (such as a promise to pay a large sum for favorable evidence). In each case, the majority's rule would appear to require the phony evidence to be admitted before the jury, while merely letting the prosecution present responsive evidence to the jury showing that it was procured by fraud, extortion, or bribery. That would require mini-trials within the trial, would be potentially confusing to a jury, and is not literally required by Rule 104.

The majority agrees that the court can condition relevance on validity. But it concludes that in making “a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition,” Fed.R.Evid. 104(b) advisory committee's note, a court may not consider the underlying substance and process that led to the issuance of a document because doing so would amount to an improper credibility determination. Applying this rationale in the present case, the majority concludes that “the district court erroneously weighed the credibility of the government's witnesses against the credibility of the official state document.” But the existence of the document does not at all bear on the question of whether it was procured by fraud. And the district court cannot be said to have made a credibility determination when Evans presented no evidence at the hearing to support the document's integrity. Adopting the rule of the majority permits a party's old lies to insulate new ones from challenge outside the jury's presence.

Here are the facts: To gain the delayed birth certificate, Evans offered an affidavit and testimony asserting that he was born in Idaho and was a former member of the U.S. Marine Corps. He said under oath that he was “active in the Vietnam [W]ar, from 1969 through 1975” and had twelve years of combat duty where he earned a purple heart. He said that when he came back to the United States, he “donated [his] next eight years of service [in the Marine Corps] for free” until he retired. On this evidence, the Idaho judge granted the delayed birth certificate in the non-adversarial state proceeding and thanked Evans for his military service.

In the federal criminal proceeding, the district court excluded the Idaho birth certificate. It reached this correct decision after hearing extensive evidence that Evans was not a U.S. citizen and never served in the military, let alone in a war zone.FN1 Based on this evidence and without any evidence presented by Evans, the court fairly concluded:

"While neither party questions the validity of the Idaho birth certificate on its face, the Government has unequivocally shown that the Idaho birth certificate is substantively fraudulent and that it was obtained through fraud of the Defendant. The [c]ourt finds that all three of the Government's witnesses were credible and that there is no support in the record that would allow a reasonable person to determine that the Defendant's Idaho birth certificate is substantively genuine."

The majority argues that the court impermissibly made a credibility determination, but as I have explained, this principle should not be applied when all the evidence was on the Government's side and Evans had no witnesses testify at the evidentiary hearing. The district court's rationale quoted above is equivalent to saying that no reasonable jury could determine that the birth certificate was not tainted by fraud. I conclude that the district court made a correct and discerning judgment. There is nothing on the side of nonfraud here, and the district court's decision excluding the evidence was correct.

“Fraud” is “an instance or act of trickery or deceit esp[ecially] when involving misrepresentation.” Webster's Third New International Dictionary 904 (3d ed.1993). To tell a lie is to “make an untrue statement with an intent to deceive” or to “create a false or misleading impression.” Id. at 1305. Lying is a form a fraud. And to determine whether fraud exists, substance and process must be examined. Under the majority rule, the district court could not perform such an examination and evidence procured by fraud would be admissible, leaving it to the jury to sort things out. To my thinking, there is no evidence error at all in excluding fraudulently obtained evidence. I would conclude that Federal Rule of Evidence 104(a) lets the court preliminarily review whether a state document in the form of a belated birth certificate was procured by fraud. That is one reason to affirm the district court.

Second, even if Rule 104(a) should be limited as stated by the majority, Federal Rule of Evidence 403, relied upon by the district court in its Rule 104 decision, gives the district court broad power to exclude evidence if its probative value is substantially outweighed by a danger of “unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” FN2 All the valid evidence presented to the state in the non-adversarial proceeding for the birth certificate could have been presented in Evans's criminal trial. I would have thought that introducing a fraudulent document would be wasting the jury's time and confusing the issues. It was reasonable for the district court to exclude the delayed birth certificate under Rule 403. See Old Chief v. United States, 519 U.S. 172, 184–85, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (performing a Rule 403 analysis requires the court to consider the probative value and prejudice associated with the admission of evidence alongside the probative value and prejudice associated with similar evidentiary alternatives). And our case law confirms that excluding an evidentiary exhibit under Rule 403 is permissible where the relevance of the document is predicated on a disputed factual hypothesis. Baker v. Delta Air Lines, Inc., 6 F.3d 632, 643 (9th Cir.1993). The standard for abuse of discretion under United States v. Hinkson, 585 F.3d 1247 (9th Cir.2009) (en banc), prevents us from reversing an evidence ruling if it is not “illogical, implausible, or without support in inferences that may be drawn from the facts in the record.” See United States v. Redlightning, 624 F.3d 1090, 1110 (9th Cir.2010) (citing Hinkson, 585 F.3d at 1261). Here, the district court's decision is logical and is supported by evidence that the certificate was gained by fraudulent documents and false testimony. Undue delay was likely to result from the certificate's admission. There was no abuse of discretion in applying Federal Rule of Evidence 403. That is a second reason to affirm the district court.

Third, even if the district court abused its broad discretion on evidence rulings despite the sound grounds for the fraudulent birth certificate's exclusion, I would not elevate this to the level of constitutional error and instead would conclude that any error was harmless.FN3 See United States v. Pridgen, 518 F.3d 87, 91–92 (1st Cir.2008) (stating the harmless-error standard). Evans cannot claim that exclusion of the delayed birth certificate blocked his defense because the court let him give testimony and offer valid documents supporting his claim of citizenship. See United States v. Stever, 603 F.3d 747, 755–57 (9th Cir.2010) (holding that there was constitutional error where “the sole evidence” on a major issue was erroneously excluded); see also United States v. Pineda–Doval, 614 F.3d 1019, 1032–33 (9th Cir.2010) (holding that there was constitutional error where a total exclusion of evidence wholly “denied the defendant the only argument that he had”). The ruling, even if assumed to be incorrect, did not create fundamental unfairness and a resulting due-process violation in the criminal trial. See United States v. Ramirez, 714 F.3d 1134, 1139 (9th Cir.2013) (holding that there was non-constitutional error). Because the error was not constitutional, reversal is improper so long as “it is more probable than not that the error did not materially affect the verdict.” See United States v. Wiggan, 700 F.3d 1204, 1215 (9th Cir.2012)(quoting Boyd v. City & Cnty. of S.F., 576 F.3d 938, 949 (9th Cir.2009)). Here Evans chose not to present much of the evidence offered in state court to obtain the delayed birth certificate. And the Government presented overwhelming evidence, including several fingerprint matches and photographic matches to an active immigration file and testimony from Evans's sister identifying him as Roman Ceniceros–Mora who was born in Mexico. Evans's testimony also revealed that he had previously committed birth-certificate fraud, that he had physical injuries consistent with those of Ceniceros–Mora, and that he had previously signed statements using Ceniceros–Mora's name. The arresting officer also stated that after Evans was given his Miranda warnings, he admitted to having been deported before and said, “[T]ime will tell; I will be back; I will be back.” The challenged ruling, if error, was harmless on all the evidence.FN4 That is a third reason to affirm the district court.

Hence I respectfully dissent and would affirm the district court.

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Federal Rules of Evidence 413-415: Looking Backward and Forward: A Sea Change or a Historical Footnote?

While tidying up some matters in Spindle Law's evidence module, I had this thought, which I posted (as comment) in the evidence module:

In 1994 Congress enacted Federal Rules of Evidence 413-415 into law. (These Rules went into effect in 1995.) Rules 413-415 openly proclaimed that some criminal conduct of a person on another occasion (criminal conduct of a sexual nature) could be used by the trier of fact to determine whether or not the person had engaged in some sexual wrong that is at issue in some trial. Although the workings and wrinkles of the preexisting character evidence rule, the traditional prohibition against "circumstantial" use of "uncharged" crimes and wrongs, was often more pretense than reality -- particularly in cases involving charges of criminal sexual wrongdoing against children -- Rules 413-415 were, at an important level, a major break with the traditional body of evidence law and principles in criminal cases -- precisely because these Rules openly sanctioned a major breach in the traditional character evidence rule, whose gist is effectively if somewhat misleadingly conveyed by the saying that a person must be tried for what the person did, not for what the person is.

The enactment of Rules 413-415 was preceded, accompanied, and followed by much controversy: the U.S. legal academic community -- that part of it that spoke out, in any event -- stood virtually unanimously in opposition. This opposition raised a number of fundamental questions, questions about the workings of the American adversary criminal justice system, the capacities and limits of the jury, the basic purposes of nonconstitutional exclusionary rules in general and the character or propensity rule in particular, the empirical underpinnings and assumptions underlying both the traditional character evidence prohibition and Rules 413-415, and, finally, the extent or nature of constitutional constraints on rules of evidence in criminal cases.

The multi-pronged academic assault on Rules 413-415 failed. After the Rules were enacted, the only effective practical form of opposition to the Rules was by an assault on the constitutionality of the Rules. (Repeal of the Rules was and is a political impossibility.) Courts, however, uniformly rejected the claim that Rules 413-415 violate the federal constitutional due process guarantee or other federal constitutional rights. See, e.g., United States v. Meacham, 115 F.3d 1488 (10th Cir. 1997). (It may be sobering -- to academics, in any event -- to see how cursory judicial discussions of this constitutional question were and are in comparison with the typical academic treatment of the matter in law journals.)

One important lingering question (there are others) is whether Federal Rules of Evidence 413-415 did or did not portend a major shift in the direction of the law of evidence in general or in the character evidence prohibition (and related legal principles such as relevance and undue prejudice) in particular. Or will it turn out, in the very long run, that Rule 413-415 were an eruption born of a particular political constellation in Congress at a particular time and largely limited to a particular sector of the America legal process, to federal trials involving claims of sexual wrongdoing? What is relatively clear is that Rules 413-415, despite their importance in their own domain, did not usher in a quick, sweeping, and widespread change in the law of evidence or in the way that civil and criminal wrongs and rights are tried in the United States. But did Rules 413-415 leave a mark on the way the legal profession thinks about evidentiary processes in adversary adjudication?

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Coming soon: the law of evidence on Spindle Law

More on the Law-Fact Distinction

In my 1983 revision of Wigmore's Treatise -- Wigmore on Evidence Section 1 n. 2 (P. Tillers rev. 1983) -- I wrote:

The belief in a clear distinction between questions of law and questions of fact and the view that juries generally should decide only questions of fact are of relatively recent vintage. See Nelson, The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760-1830, 28-30, 165-174 (1975); Horwitz, The Transformation of American Law, 1780-1860 (1977). See also Arnold, A Historical Inquiry into the Right to Trial by Jury in Complex Civil Litigation, 128 U. Pa. L. Rev. 829, 835 (1980) ("In such a world [of the late eighteenth century] law is a fact like any other: all that is necessary for the resolution of a dispute is for intelligent and moral people, free from the temptations of corruption, to apply their minds to it in a reasonably diligent fashion"). On the distinction between law and fact in medieval England, see Arnold, Law and Fact in the Medieval Jury and Trial: Out of Sight, Out of Mind, 18 Am. J. Legal Hist. 267, 279-280 (1974) ("But for medieval people, especially those who found themselves on the bench or on the jury in a common-law court, the law simply was not regarded as consisting of external commands but of enforceable rights discoverable by logic and observation. These rights were not beyond the ken of lay people but were there for any and all to discover. `Law was once a fact,' Max Radin wrote, and a fact not too difficult to ascertain.' In such a world the distinction between law and fact in tort law is for the academic lawyer; and it would be four hundred years before one appeared"). If one is to judge the matter by academic literature, the distinction between law and fact was well established when the first edition of this Treatise appeared in 1904. See. e.g., Thayer, "Law and Fact" in Jury Trials, 4 Harv. L. Rev. 147 (1890); Thayer, A Preliminary Treatise on Evidence 183262 (1898). (The distinction is still generally regarded as basic. See, e.g., Damaska, Presentation of Evidence and Factfinding Precision, 123 U. Pa. L. Rev. 1083, 1086 (1975).) Wigmore's theoretical perspective was drawn from English empiricism, and his definition of evidence reflects his participation in that intellectual tradition. Wigmore's definition of evidence closely resembles that of Jeremy Bentham (quoted in the text). And Bentham, like Wigmore, thought that there was a basic difference between law and fact. See, e.g., 1 Bentham, Rationale of Judicial Evidence 25 (Mill ed. 1827) ("Whatever be the decision by which a cause or suit at law is . . . terminated, — this decision has for its subject matter two constantly concomitant points or questions, — the point or question of law, and the point or question of fact. So far as regards the question of fact, the decision, in so far as it is just, depends upon and is governed by the evidence"). Wigmore recognized that there were problematic aspects to the distinction between law and fact. See the discussion in the text. Thayer had already discussed some of the difficulties with the distinction, showing that it was not always readily made. Thayer. Preliminary Treatise on Evidence 183-262 (1898); Thayer, "Law and Fact" in Jury Trials, 4 Harv. L. Rev. 147 (1890). Wigmore nevertheless maintained that the distinction between law and fact is both basic and legitimate, notwithstanding any difficulties of interpretation and application. See discussion in text. The mysteries of the distinction between law and fact are deeper than Wigmore's discussion suggests. Much legal literature, in a "realistic" vein, as well as a great deal of literature on epistemology, has emphasized the "arbitrary" or "creative" elements present even in the most primitive factual judgments. There is also a large body of legal literature, again in a "realistic" vein, that has emphasized the extent to which the formulation of "legal" judgments, doctrines, principles, and rules is sensitive to (judicial) assessments of the "facts," both in general and in the particular case. These views suggest that all factual assessments involve a normative component; that all normative analysis (broadly understood) inextricably involves factual assessments; and that it is in principle not possible to draw a sharp line between the two types of analysis and decisionmaking. The distinction between law and fact seems designed to differentiate those types of questions as to which the submission of evidence is not useful or proper. The view that it is appropriate and useful to receive evidence on questions of fact and not on questions of law seems to rest on the premise that questions of fact relate to questions concerning the existence or nonexistence of phenomena and questions of law involve determinations of policy as to which the admission of evidence is beside the point since such questions of social policy do not involve questions concerning the existence of some phenomenon or event. Today, however, it seems less clear that the value of evidence as to disputed questions may be assessed on this basis. Thus, for example, it is a familiar thesis in many branches of law, particularly in torts and in contracts, that many questions of "fact" submitted to juries for adjudication in reality present and involve questions of policy and of "law." Thus, a jury may be asked (by law) to decide whether a person exercised "reasonable prudence," and the matter in question may be treated as a factual question for purposes of allocating decisionmaking responsibilities between judge and jury. However, the characterization of a matter as factual for these purposes does not inexorably lead to the conclusion that the submission of evidence with respect to that matter is inappropriate or unhelpful. Thus, courts often do assert that the jury may or should consider an issue such as reasonable prudence or ordinary care in the light of ordinary or customary practice, and it then may become entirely appropriate to submit evidence at trial to inform the jury as to ordinary or customary practice. Cf. Treatise §2552 infra. Of course it is arguable that any such question regarding reasonable prudence as to which ordinary practice and custom are pertinent may and should be analytically decomposed into questions of policy or law and questions of fact. By this view, evidence as to the existence of customary practices is pertinent not to the problem of choosing or formulating the appropriate standard of behavior but to the question of whether a standard that incorporates reference to customary practice is or is not applicable to the factual circumstances of the situation. On this view, any other question of "fact" as signed to the jury for decision may be decomposed in like fashion into normative or legal decisions, on the one hand, and factual assessments, on the other, and it may then be clearly seen that the evidence submitted to the jury is pertinent only to the truly factual component of the "question of fact" submitted to the jury. While we cannot assess the latter response at any length here, we believe it is insufficient and simplistic. Even if we make the problematic assumption that issues such as "reasonableness" can be dissected into purely factual and purely normative (policymaking: "lawmaking") components, the ability to perform this analytical surgery does not demonstrate that evidence may not and should not be received with respect to the legal or normative component of any such mixed issue of law and fact. It is simply gratuitous to assume that information supplied by evidence cannot be useful for a decisionmaker contemplating a question of law or policy. (Cf. related discussion of this problem in § 4c infra in relation to administrative proceedings.) It might be said, in rejoinder, that the concept of evidence, by its nature, involves the use of the existence of one state of affairs (evidence) to demonstrate the existence or nonexistence of some other state of affairs in the world, some fact in issue (cf. the common understanding of relevancy, § 87 infra), but, whatever the merits of this view, it hardly demonstrates that information in the form of evidentiary submissions (as by a witness testifying) should not be given to the jury (or judge) when it is required to make a decision of policy. Furthermore, the premise of the rejoinder is probably incorrect. In many cases, investigations designed to resolve what are generally regarded as questions of fact aim not so much to determine the existence or nonexistence of some empirical phenomenon as to determine what sort of characterization of an empirical state of affairs is proper. Thus, for example, the existence of certain physical events involved in a controversy — the physical location of various persons or the uttering of certain sounds by various persons — may seem clear enough, and the question may then be what sort of intent one of the actors in the situation entertained. Not infrequently, as in contract cases, it will be appropriate and necessary to receive evidence (such as customary practice) not so much for the purpose of determining the existence of a particular thing (e.g., the "existence" of intent of a certain sort) but to determine, on the basis of evidence, what sort of meaning or significance should be ascribed to an actor, given the existence of various physical events that may not be in dispute. (The best example of this phenomenon may be the defense of insanity in a criminal prosecution. It is now generally said that defining insanity involves neither a scientific question nor a simple question of fact but requires that the jury determine, in the light of standards of fairness and culpability, whether the defendant may be fairly characterized as "insane." Yet, of course, we expect the jury to listen to expert psychiatric testimony to assist it in deciding what criteria to use in deciding to characterize a defendant's state of mind and not solely for the purpose of deciding whether facts do or do not exist that have a bearing on the standards of characterization it has decided to use. Of course, as this example of the insanity defense illustrates, it is often unclear whether the submission of evidence to the jury is designed to facilitate its description of events or, instead, its ascription of meaning to events; perhaps in a majority of investigations concerning matters such as intention the two are intermingled in some fashion.) To talk about factual investigations as though they involve only questions concerning the existence or nonexistence of some phenomenon or event may obscure the fact that we often answer the question, What happened? only by deciding how to characterize some events that are known to us. (An analogous thesis is the now-familiar claim in philosophy of science that facts are theory-dependent.) In short, in many cases a reasonably accurate description of what (probably) happened cannot be given unless the observer evaluates the significance of various events known to him (or that he assumes to be true); frequently — if not always — a factual investigation requires not only a determination of whether certain physical events occurred but also a determination of how such events should be interpreted or pieced together in order to answer adequately the question, What happened? The element of characterization or interpretation (or, if you prefer, ascription) present in factual investigations seems most prominent when factual questions relating to human intentions, purposes, motivations, and aims are raised. Cf. Damaska, Presentation of Evidence and Factfinding Precision, 123 U. Pa. L. Rev. 1083, 1085 (1975) (making a distinction between "external facts," such as the speed of a car, and "internal facts," such as knowledge, and tentatively suggesting that the process of proof may differ in the two cases even if both types of matters raise "factual" questions in some sense; however, interestingly enough, Damaska's discussion of factfinding precision is limited to proof of so-called external facts). It is arguable that a basic distinction exists between something like "natural phenomena," on the one hand, and "cultural and social phenomena," on the other hand, and that there is a corresponding distinction in the manner in which these two types of phenomena are investigated. Some writers have argued that a distinctive epistemology attaches to the understanding of social relations and interpersonal "events," apparently because of the fact that social relations, unlike natural phenomena, are constituted in part by what might be called interpersonal consciousness (or, if you prefer, symbolic interaction). The existence of a social event — a greeting, a leave-taking, or what have you — may be determined only if one knows the rules by which the actors attach significance or meaning to various events, and arguably, the methods we use to attempt to determine the significance and meaning attached by the actors to their actions may differ essentially from the methods we normally use to determine whether a given physical or natural event, not involving human intentions, occurred or did not occur. See generally Unger, Knowledge and Politics (1975); Habermas, Knowledge and Human Interests (Shapiro trans. 1971). (Of course in some cases, as with the more extreme forms of the objective theory of contracts, we purport not to concern ourselves with the actual intentions of the particular actors in the situation but rather engage in a process more akin to ascription than description. However, even here description is involved since we must be able to say and understand, for example, what people in the situation usually understand and intend — unless we want to make all talk about matters such as intent talk about a "fiction" because we do not believe that any things such as intent really exist in any sense.) It is pertinent to observe here that any analytical maneuvering that does show (contrary to our expectations) that there is indeed a clear distinction between "fact" and "law" (between factual and normative decisionmaking) does not necessarily show that the assignment of decisionmaking responsibilities to the jury concerning a matter such as "reasonableness" is therefore necessarily illegitimate, since in fact such matters and questions historically have frequently been submitted to the jury (see this note supra); it is also arguable on the merits that it is sometimes appropriate to assign "policy-making" responsibilities to the jury. From the perspective of evidentiary theory, any assignment of policymaking functions to the jury may seem anomalous and thus there may emerge an inclination to analyze putative "questions of fact" more precisely so that the policymaking aspects of any seeming question of fact may be reserved for decision by the judge, leaving only the factual components for resolution by the jury. However, this sort of attempt to discriminate more carefully between questions of fact and questions of law may well result in an illegitimate usurpation and impairment of the decisionmaking authority historically assigned to the jury.

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My 1983 Thoughts on the Tension between Freedom of Contract and the Search for the Truth

In 1983 I wrote:

1 Wigmore on Evidence Section 7a (P. Tillers rev. 1983) (footnotes -- long footnotes -- omitted):

General remarks of reviser on scope of freedom under modern law to vary rules of evidence by agreement. Modern decisions generally do recognize the general principle that parties may vary rules of evidence by prelitigation agreements, but courts still do not seem to embrace the notion that parties have practically unlimited contractual autonomy to regulate evidentiary processes at trial. What accounts for this judicial ambivalence?

Several factors have a probable bearing on the judicial churlishness towards agreements to vary evidentiary rules. First, part of the explanation is surely attributable to changes in the general law of contract, which tend to restrict the scope of any party's ability to order his affairs through private contractual arrangements. Doctrines such as those relating to unconscionability and adhesion contracts have grown in importance in the last forty or fifty years. Wigmore's views as to the scope of freedom of contract are those of a late nineteenth and early twentieth century orthodox thinker. Recent developments in the law of contracts have eroded some of the premises that underlay his analysis of agreements to vary rules of evidence. But some of the judicial reticence to give full scope to agreements to vary evidentiary rules may reflect the fact that a great many of the decisions involve insurance contracts, and as we have remarked elsewhere (see note 10 supra), courts are particularly likely to construe insurance contracts against the insurer and otherwise place substantial limitations on the contractual freedom of insurance companies. To the extent that this factor dominates, the general implications of these decisions in regard to the validity and enforceability of agreements to vary evidentiary rules may be limited.

Second, and perhaps most important, we believe it is probable that many courts, notwithstanding the criticisms made by Wigmore, retain a vestigial sense that evidentiary rules are in some sense inappropriate "commodities" for bargaining between private parties and that in some sense rules of evidence involve fundamental aspects of justice that may not be bargained away. For our own part, we are not convinced that this view is wrong or that it is properly regarded as primitive and irrational. Rules of evidence have a special claim to our respect and attention since it is widely believed that their use, at least in the course of a jury trial, is necessary to maintain the reliability of the factfinding process. It is evident, of course, that the aim of reasonably accurate factfinding offers no ground for objection to agreements to vary evidentiary rules when those agreements do not undermine this objective and perhaps even further it by authorizing the admission of a wider range of evidence than would be normally admitted; after all, one may reasonably take the view, as many observers have (see § 37 infra), that a liberal attitude towards the admissibility of evidence is generally likely to promote accurate factfinding. (It is also possible, notwithstanding our conventional explanations, that many exclusionary rules do not in fact rest primarily on a concern for factual accuracy and truth. (See § 37.1 infra.) But of course any such agreements do not present the problem considered here. (Although, of course, there may be other reasons we might not wish to give effect, for example, to agreements that void the privilege against self-incrimination. See note 14 supra.) The problem we pose arises when we face agreements that authorize evidentiary practices and requirements that seem likely to make the judicial factfinding process substantially unreliable and arbitrary. A possible example here is the common attempt by insurers to require that proof of accidental death be evidenced by "visible contusions" or, less frequently, that the fact of death or injury be shown by "conclusive" evidence. If we believe that such evidentiary requirements promote arbitrariness and unreliability in judicial factfinding processes, is it any answer that the parties agreed that they should apply? We believe that a credible case can be made that the answer is no. And we believe that strong support for a negative answer is afforded by decisions that establish the principle that a court is neither required nor permitted to admit evidence that the court deems unreliable and worthless merely because the parties to the controversy have stipulated that such evidence shall be admitted.[fn35] Although we do not know whether God plays dice with the universe, a trial is not a crapshoot and the parties should not be permitted to demean the dignity and rationality of the judicial factfinding process merely because they agree to do so. It is one thing to say that a factual controversy shall not be submitted to a court for decision; it is another thing to say that the parties may force a court to resolve a factual controversy submitted to it for decision by methods that the court (and, perhaps, the public) regards as unreliable and arbitrary.

It is not self-evident that the limitation we believe should be imposed on the parties' ability to vary rules of evidence is consistent with the latitude that the law generally gives parties to make private arrangements for the disposition and adjudication of disputes that arise between them. After all, as Wigmore observed (see text supra), the law generally does permit parties to make agreements to arbitrate, and these agreements are today generally enforceable (see § 4e supra). Similarly, forum-selection clauses are generally enforceable, and these clauses, like arbitration submission agreements, permit the parties to bypass altogether the use of a particular system of judicial machinery. It may of course happen that a choice to bypass a particular forum is motivated by a desire to avoid the application of particular procedural and evidentiary rules that are applicable within a particular judicial system. In addition, the law generally permits parties to enter into stipulations by which selected factual issues involved in a controversy are eliminated. Finally, and perhaps most incongruously, the law generally allows lawyers to plead their clients into penitentiaries without the benefit of any formal adjudication of guilt or innocence.

We are not fully persuaded that all of these contractual rights are inconsistent with the denial of the right to parties to make agreements that destroy or significantly impair the reliability of factfinding in a judicial trial. Thus, for example, the choice of another forum, though it may avoid procedural and evidentiary matters that one of the parties finds undesirable, still involves the choice of a procedural system that has been deemed adequate by a societal judgment for the pursuit of truth, and the variations in evidentiary practices in different forums cannot be considered in isolation from the different procedural context in which those variations exist and operate. Nevertheless, not all procedural and evidentiary variations can be reconciled on this basis. Thus, for example, the ability of a party to make a plea bargain cannot be explained on this basis. And neither is it possible to reconcile in this fashion the right of parties to make arbitration agreements, for the parties to an arbitration proceeding generally have the right to adopt whatever procedural and evidentiary rules they please in the proceeding[fn36] (see § 4e supra). Nonetheless, these facts fall short of demonstrating that it is anomalous to deny parties the right to select whatever procedural and evidentiary rules they may please for use in a judicial trial. It is arguable that the proceedings in courts are not there solely for the convenience of the parties and that it is important for social reasons to maintain the solemnity and dignity of judicial proceedings regardless of the wishes of the parties. It is immaterial, in this view, that the parties have the ability to choose other types of adjudicative proceedings, such as arbitration, which they may structure in any fashion they deem appropriate. If pressed, we might concede that it is more difficult to explain away the form of plea bargaining proceedings since these proceedings ultimately do occur in the courtroom and the court does engage in certain limited findings of fact to assure itself that there is a "factual basis" for the plea entered. Driven to this point, we would not attempt to reconcile the irreconcilable; we would instead argue that plea bargaining proceedings are illegitimate creatures that should be driven from the courts of justice of our land and would further argue that in a criminal case every defendant should be given a trial that society deems sufficiently fair and adequate to ensure that facts are found reliably.

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The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.