The Incoherence of Evidence Law

G. Alexander Nunn*

What is the purpose of evidence law?  The answer might seem intuitive.  Evidence law exists, of course, to foster verdict accuracy, legitimacy, and efficiency.  But these kindred aims often come into conflict.  Policy tradeoffs are inescapable in evidence law, meaning that an evidentiary regime must clarify how its normative objectives cohere.  Do accuracy, legitimacy, and efficiency work together on equal footing, such that the goal of a code is to maximize each objective to the extent possible?  Or does one of evidence law’s aims take precedence over the rest?  And if one goal takes priority, what is the role of the subordinate policy objectives?

These questions loom over all of evidence law.  They establish order for an evidentiary regime and serve as the North Star for its substantive contents.  Yet these are the very questions that the Federal Rules of Evidence simply ignore.  The code fails to elucidate a normative equilibrium among its policy pursuits.  And the resulting incoherence has predictable costs.  The Federal Rules emphasize verdict accuracy with one set of rules, only to undermine accuracy with another.  The code prioritizes legitimacy at certain junctures, but risks substantial illegitimacy elsewhere.  The Federal Rules increasingly prove empirically unsound and culturally problematic, yet garner no urgent response from rule makers.  Taken together, this collective incoherence has caused the Federal Rules to chronically underachieve their policy goals.

This Article therefore seeks to remedy evidence law’s faulty conceptual foundation.  It introduces two optimization frameworks that bring order to evidence law, cohering our evidentiary regime’s policy objectives and bringing existential clarity to the field.  Even beyond those theoretical benefits, the optimization models also provide a roadmap for extensive tangible improvements.  The models leave no stone unturned as they channel evidence law to its optimum, excising underperforming rules and aligning the Federal Rules with modern cultural norms and scientific understandings.  And ultimately, that substantial reform is both the product, and the promise, of a coherent evidentiary regime.

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© 2024 G. Alexander Nunn.  Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor of Law, Texas A&M University School of Law.  Many thanks to Ronald Allen, Blair Bullock, Ed Cheng, Steve Clowney, Tomer Kenneth, Ed Imwinkelried, Jill Lens, Jamie Macleod, and Daniel Rice for providing insightful comments on earlier versions of this Article.  I would also like to thank the many participants at a Texas A&M University School of Law workshop for helpful questions and suggestions.  And, perhaps most importantly, I owe a sincere debt of gratitude to all the wonderful editors at the Notre Dame Law Review for their fantastic work on this Article.