Evidence Without Rules

Bennett Capers*

Much of what we tell ourselves about the Rules of Evidence—that they serve as an all-seeing gatekeeper, checking evidence for relevance and trustworthiness, screening it for unfair prejudice—is simply wrong. In courtrooms every day, fact finders rely on “evidence”—for example, a style of dress, the presence of family members in the gallery, and of course race—that rarely passes as evidence in the formal sense, and thus breezes past evidentiary gatekeepers unseen and unchecked. This Article calls much needed attention to this other evidence and demonstrates that such unregulated evidence matters. Jurors use this other evidence to decide whether to find for a plaintiff or defendant, whether a defendant should go free or be deprived of liberty, even whether a defendant is deserving of life or death. More broadly, the role of other evidence belies what we tell ourselves about the way justice works, that it is based on the “rule of law.” The truth is less comforting. The determination of outcomes, notwithstanding the Rules of Evidence, is often ruleless. To address this state of affairs, this Article first offers a modest proposal—a simple jury instruction and directive. It then offers a solution that is anything but modest—a radical rethinking of the Rules of Evidence.

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*Stanley A. August Professor of Law, Brooklyn Law School. B.A., Princeton University; J.D., Columbia Law School. Assistant U.S. Attorney, Southern District of New York, 1995–2004. E-mail: bennett.capers@brooklaw.edu. This Article benefited from a faculty presentation at Boston University School of Law, as well as presentations to the Federal Bar Council’s Second Circuit Courts Committee and at the Law and Society Association Annual Meeting in Toronto. It also benefited from invaluable comments from Azizah Ahmed, Jeffrey Bellin, Julia Simon-Kerr, Jerry Leonard, Nancy Moore, David Rossman, Karen Pita Loor, Kathy Zeiler, David Alan Sklansky, Jennifer Romig, Jocelyn Simonson, Jasmine Gonzales-Rose, Josephine Ross, Ron Allen, Anna Roberts, Binyamin Blum, James Dillon, Jenny Roberts, George Fisher, Michael Vogel, David Berger, and the research assistance of Patrick O’Donnell and Christopher Duffy