Document Type

Article

Publication Date

2003

Abstract

A great deal of the rhetoric of evidence discourse concerns the supposed cognitive inadequacies of the jury. In various contexts we are told that although an item of evidence is probative, it must be excluded because the jury will give it too much weight. I believe this approach has played far too great a role in evidentiary law, and that it is an interesting project to see whether we can construct a satisfactory body of law without relying at all on the cognitive inadequacy argument. I think that, at least to a large extent, we can. In some settings, where the cognitive inadequacy argument now causes the exclusion of evidence, we might instead articulate other grounds for exclusion. In some other settings we might instead decide that the best result is admission of the evidence. I will focus on three substantive areas of evidentiary law: hearsay, character and prior misconduct-used both substantively and to impeach-and expert evidence. In each of these areas, a large part of the reason usually given for exclusion of evidence, when it is excluded, is fear that the jury will overvalue the evidence. In each, I will contend that this argument should be put aside. With respect to hearsay, the law may be vastly improved by the Supreme Court's recent articulation of a strong sense of the confrontation right independent of hearsay law. Such a right yields a categorical rule excluding an important but relatively narrow segment of hearsay. Hearsay that does not fit within this right might yet be excluded because of best evidence considerations, but if neither the confrontation right nor best evidence considerations call for the exclusion of hearsay, it probably should be admitted. With respect to evidence of character and prior misconduct, I believe that in many settings the misconduct does indeed have very substantial probative value. If it is to be excluded, as often it should be, the reason should not be the cognitive inadequacy of the jury. A better reason is that the evidence would likely cause the jury, and perhaps any fact-finder, to decide the case on an improper basis. In particular, when such evidence is offered against a criminal defendant, its impact is often to cause the fact-finder, in essence, to lower the standard of persuasion it applies to the case. This is true even with respect to evidence of misconduct offered against an accused for impeachment purposes. Such evidence does not, I believe, have substantial probative value and I doubt that juries give it much value for the purpose for which it is supposedly offered. With respect to expert evidence, the situation is somewhat more complicated. I believe that the Daubert standard is too rigorous, addressing at the admissibility stage questions that should be dealt with in making sufficiency determinations.' When evidence is to be excluded, I do not think it should be so much because the court believes that the evidence, while probative, is likely to over-persuade the jury. Rather, I believe the reason should be either a best evidence ground-that exclusion may induce the production of better evidence-or that the court has determined that the evidence is affirmatively misleading or of so little probative value as not to be worth the costs of presenting it. Before addressing these specific doctrinal areas, I will discuss in general the nature of the over-valuation concern, and then other reasons for exclusion.


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