Search

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., INTRODUCTION I. Evidence Law's Faulty Foundation A. An Incoherence of Purpose B. The Cost of Incoherence 1. A Normatively Inconsistent Patchwork of Rules 2. Apathy in the Face of Dilapidation [...]

INTRODUCTION 938 I. TOWARD A CODIFIED EVIDENTIARY REGIME 948 A. Evidence Law's Origins 950 B. The Federal Rules of Evidence Emerge 956 II. THE LIVING RULES OF EVIDENCE 962 A. [...]

By and large, judicial authority is a product of perceived validity. (1) Judges lack an independent means of enforcement; they wield "no influence over either the sword or the purse," [...]

The evidence rules 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. And that's just the beginning. The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These "mistakes" are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. 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 face a Hobson's choice: Stay faithful to the rules, or instead 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. This Article identifies and explores this bending of the rules of evidence. After tracing rule bending across many evidence doctrines, the Article explores the normative roots of the problem. Codification has ossified evidence law, effectively driving judges underground in the search for solutions to their evidentiary dilemmas. Rather than trying to suppress rule bending, we advocate legitimizing it. Specifically, the Article proposes a residual exception that would enable trial courts to admit essential evidence in carefully defined circumstances. Such an exception would bring rule bending out of the shadows and into the light with benefits to transparency, legitimacy, and accountability. And perhaps most importantly, it will reestablish trial courts as a partner in the development of evidence law. [ABSTRACT FROM AUTHOR]

I. INTRODUCTION II. RESOLVING THE GATECRASHER'S PARADOX: AN OPEN QUESTION A. Discounting Naked Statistical Evidence B. Creating a New Rule of Evidence C. Addressing the Burden of Proof D. The [...]

Cryogenic preamplification using silicon–germanium heterojunction bipolar transistors has proven to be effective in increasing the signal-to-noise ratio of the tunnel magnetoresistance of high resistance magnetic tunnel junctions at 8 K. The magnetic tunnel junctions used have resistances greater than 1 MΩ, and the cryogenic measurement system still has sufficient bandwidth for the 1/f noise to roll off. A noise model for the system has been proposed and evaluated experimentally. The noise temperature and minimum noise temperature of the transistor used in the experiment are calculated and compared. The signal-to-noise ratio of the junction alone and the transistor-junction system is derived from the sample and circuit parameters and compared. Experimental data show a signal-to-noise ratio increase by a factor of 6.62 after adding in the cryogenic preamplifier. An increase in 1/f noise in the antiparallel state of the tunneling junction as opposed to the parallel state is also observed giving evidence of 1/f noise dependence on the magnetic state of the junction. [ABSTRACT FROM AUTHOR]

The distinction between questions of law and questions of fact is deceptively complex. Although any first-year law student could properly classify those issues that fall at the polar ends of the law-fact continuum, the Supreme Court has itself acknowledged that the exact dividing line between law and fact--the point where legal inquiries end and factual ones begin--is "slippery," "elusive," and "vexing." But identifying that line is crucially important. Whether an issue is deemed a question of law or a question of fact often influences the appointment of a courtroom decision maker, the scope of appellate review, the administration of certain evidentiary rules, and the application of preclusive or precedential weight to its resolution. This Article seeks to bring theoretical coherence and analytical clarity to the law-fact distinction. It pushes back against the formal view that questions of law and questions of fact are categorically distinct. Instead, drawing on legal process principles, this Article argues that an issue is typically deemed a question of law or a question of fact because legitimacy concerns demand its resolution by a particular decision maker. Through that reconceptualization, this Article's legal process model offers a number of significant contributions. First, as a descriptive matter, it explains the cause of the jurisprudential turbulence surrounding the law-fact distinction. Second, normatively, it highlights the weaknesses of traditional law-fact model, which enables institutional aggregations of power. Finally, it promises to transform the process of classifying issues, turning that analysis into a simple transparent effort to allocate decision-making authority in a manner that will best optimize the legitimacy of adjudication--that will best achieve procedural justice. [ABSTRACT FROM AUTHOR]

The article focuses on witness fixation that pervades the modem courtroom in the U.S. Topics discussed include rise of process-based evidence; evidentiary treatment of forensic lab results, photographs, scientific articles, and business records; and the U.S. Supreme Court case Daubert v. Merrell Dow Pharmaceuticals Inc. on same.