The following is a summary of “Bending the Rules of Evidence,” published in the Northwestern University Law Review. The authors are Edward K. Cheng, G. Alexander Nunn ’16, and Julia Ann Simon-Kerr.
The rules of evidence 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.
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 must decide whether to stay faithful to the rules or 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.
“Bending the Rules of Evidence,” co-authored by Edward K. Cheng, G. Alexander Nunn, and Julia Ann Simon-Kerr, argues that these contortions should be legitimized. Bringing this long-standing practice out of the shadows and into the light increases transparency, legitimacy, and accountability, all while reestablishing trial courts as a partner in the development of evidence law.
The authors begin by surveying the various contexts in which evidentiary rules are bent, identifying a pattern that dispels the conventional wisdom that courts are merely making mistakes. After analyzing and rethinking the problem of rule-bending, they propose a unified solution in the form of a generalized residual exception, which they compare to related doctrines in evidence law and for which they provide rebuttals to likely objections.
Bending Rules looks across the evidentiary landscape but spends considerable focus on three specific contexts. The rule against propensity evidence—prohibiting the use of past acts to prove a similar act—has long been a source of seemingly inexplicable court decisions, including the recent criminal trial of Bill Cosby. Hearsay is another area where the temptation to bend evidentiary rules often proves overwhelming. Judges choose repeatedly to misapply hearsay exceptions in roughly analogous ways because of their sense that the evidence is in some way essential to the case. In the case of privileges, judges reshape privilege law in order to admit otherwise privileged evidence in case after case, when they perceive evidence that is facially privileged to be highly probative and critical.
Rule bending is arguably a byproduct of modern evidence law’s rigidity. In the common law era that preceded the codification of the Federal Rules of Evidence, rule bending was simply not necessary. Courts developed evidentiary doctrines incrementally, and what might now be considered rule bending was an inherent part of evidence law’s common law evolution. With the codification of the Federal Rules of Evidence in 1975, and their adoption by the vast majority of states, judges’ ability explicitly to shape evidence law’s substantive development ended.
To be sure, codification does not necessarily entail stagnation—rule makers are positioned to continue the evolution of evidentiary doctrine. While they do occasionally tinker with the federal evidentiary code, most changes have been exceedingly modest. Widely recognized problems in evidence law—such as specious empirical claims and problematic cultural assumptions—remain conspicuously unaddressed. The result is an evidentiary code that, in the words of a prominent judge, has fallen into a “dogmatic slumber.”
On many occasions, the requisite formal textual fidelity causes no headache. But what happens when the evidentiary code demands the exclusion of seemingly essential evidence? What happens when courts are presented with the choice between fidelity to the rules and an overwhelming sense that a certain piece of evidence must reach the jury for a fair determination of a case? It is here that courts bend the rules.
Generalized Residual Exception: Rule 107
Given the significant doctrinal costs of evidentiary rule bending, the authors offer a doctrinal fix: Rule 107.
(a) In General. Under the following conditions, a court may admit evidence that is otherwise inadmissible under these rules if:
- the evidence is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
- the general purposes of these rules and the interests of justice will best be served by admission of the evidence.
(b) Notice. The evidence is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the evidence so that the adverse party has a fair opportunity to respond.
(c) Standard of Review. Appellate courts shall review de novo any evidence admitted under this rule.
This proposed rule offers a clear mechanism through which courts can explicitly admit what they perceive as essential evidence excluded by other rules. “It incentivizes transparent rule evolution rather than surreptitious rule bending,” the authors argue.
The Additional Benefits of Rule 107
In their conclusion, the authors notes that, beyond the setting of a specific case, a generalized residual exception could “perhaps reinvigorate the evidence academy itself.” The enactment of the Federal Rules of Evidence brought about a decline in the quality and quantity of evidence scholarship. This solution to rule bending, the authors assert, could provide a much-needed spark.
“Evidence now finds itself, untenably, as the least-cited discipline in the legal academy,” they write. “To change its fate, evidence law must innovate. This Article offers a tangible first step in that direction.”
“Bending the Rules of Evidence” appears in Volume 118, No. 2 edition of the Northwestern University Law Review. Edward K. Cheng is the Hess Chair in Law and Director of the Branstetter Litigation & Dispute Resolution Program at Vanderbilt Law School. G. Alexander Nunn is an Associate Professor of Law at Texas A&M Law School. Julia Simon-Kerr is the Evangeline Starr Professor of Law at UConn School of Law.
