No. 5: Evidence

Courtroom in Phelps County Courthouse in Holdrege, Nebraska© Ammodramus/Wikimedia Commons

The Federal Rules of Evidence offer our students wonderful opportunities to practice the skills involved in applying rules to fact patterns. But even as we tackle this work, we seek ways to challenge a sense that such application is mechanical, or that the rules as currently drafted are inevitable or neutral. We explore the rules as sites of contested meaning in a world of asymmetrical power relationships. We investigate some of the factors that influence the drafting and application of these rules, and problematize some of the concepts upon which evidence law relies. We seek to enrich our study of these rules by introducing diverse voices that illustrate their impact, and visions that illuminate alternative approaches.

Below, we offer some possible approaches, grouped under headings. Many could be used in courses other than Evidence, such as clinics and trial advocacy. We welcome additional ideas.

Unsettle Inevitability

1. Teach that the rules we study are not inevitable by presenting examples of states and countries that take a different approach than that of the Federal Rules.  For example, rather than allow impeachment of a defendant using past criminal convictions under Rule 609, three states–Hawaii, Kansas and Montana–have strenuous restrictions, or outlaw altogether, impeachment of defendants with prior convictions. (See Roberts, Conviction by Prior Impeachment.) And, unlike the United States’ system of party-controlled experts, it is rare for expert witnesses outside of the U.S. to be paid and controlled by individual parties who may have unequal resources.  (See Liptak, In U.S., Expert Witnesses are Partisan.) A third example: the French film 10th District Court illustrates an approach in which a judge reviews a dossier, and questions the defendant, with very few apparent limitations on admissibility.

Problematize Credibility

2. Discuss the racialized and gendered history of credibility rules. Learn about race-based competency statutes in the 18th and 19th centuries, under which people of color could not testify in court, sometimes altogether and sometimes just when testifying against white people.  (See Fisher, The Jury’s Rise as Lie Detector; Fisher’s Evidence, 3rd Edition, Chapter 6). Study the historical contrast between credibility rules for men and women, under which chastity was probative of lack of credibility for women but not for men (and not just in rape cases). (See Simon-Kerr, Unchaste and Incredible).

3. Contrast the historical incompetency of people of color to the assumed credibility and expertise of police officers in court.  (See Lvovsky, The Judicial Presumption of Police Expertise; Simon-Kerr, Systemic Lying (calling attention to the systemic decision by prosecutors and judges to credit police officers who lie)).

4. Consider how race-based competency statutes may be replicated in race neutral terms today as the cascading effects of racial disparities in criminal justice lead to a presumed lack of credibility of many men of color, for example through the ability to impeach via a prior conviction.  (See Simon-Kerr, Credibility by Proxy). For this and other connections between competency rules of old and racial hierarchies today, see Gonzales Rose, Toward a Critical Race Theory of Evidence. To open up this discussion, consider asking your students to articulate the assumptions that one must adopt in order to conclude that convictions are probative of a lack of credibility.

Highlight the Pervasive Influence of Unequal Resources

5. Discuss how the disparities in attorney resources interact with the rules of evidence.  This is particularly acute in the context of expert testimony, but unequal distribution of resources and asymmetrical discovery rules can also impact the ability of criminal defendants or parties with fewer resources to object or to impeach in good faith.  (See, e.g., NYCLU, State of Injustice, a report documenting how public defenders in New York state receive unequal funding, rarely investigate cases, and do not hire experts; New York’s Imbalanced Discovery Law, explaining asymmetrical discovery rules in New York).

6. Connect unequal resources of attorneys to the Federal Rules’ emphasis on the role of attorneys in enforcing the rules and the importance of attorney objections under FRE 103.

Diversify Rules & Voices

7. Offer opportunities for students to think through problems from various perspectives. Have them assume roles so that they can think critically about the effect of roles on judgment. For example, put students in role as prosecutors to help them grapple with what the “duty to do justice” does/should mean in the context of evidentiary arguments. If prosecutors stay within what the rules (and cases) permit, are they honoring their duty to do justice, or does that duty mean something more? If a defendant has ten prior convictions, for example, should the prosecutor ask for them all to be admitted for impeachment purposes? What if they are “crimes of dishonesty,” and thus ones that the judge must admit if asked? Consider a simulation raising these kinds of questions.

8. Seek ways to highlight the silencing of defendants & less privileged witnesses in the courtroom, and to bring the voice/perspectives of defendants/clients/non-elites into the classroom. Consider some of the impediments to defendant/client testimony—impeachment, perjury charges, sentencing enhancements, etc.—and what may be lost as a result (See Natapoff, Speechless: The Silencing of Criminal Defendants). Consider whether hearing defendants’ testimony could combat the stereotyping that can dominate jury decision-making (See Roberts, Reclaiming the Importance of the Defendant’s Testimony).

9. Compare the ubiquitous qualification of police officers as experts in gang cases (see Ridley, Down by Law) with instances in which participatory defense teams have used neighborhood residents who interact with gang members regularly as experts to counter the assumptions made by police officers.  For an example of a former gang member and participatory defense participant who is now a regular expert on gangs, see The Gang Expert LLC.

Explore the Influence of Bias

10. Explore ways in which rules of evidence may intersect with judicial and jury bias. How do evidentiary rulings enhance the problems of bias in the court system? Could they help to combat them?

11. Evaluate the potential of various FREs to enhance or combat bias: for example, 403 (see Gonzales Rose for a reinterpretation of 403 to “increase equality in the courtroom”), 609 (see #s 1, 4, 7, and 8 above), 702 (see Kirwan Institute report on dueling decisions on the admissibility of implicit bias expert testimony; Gonzales Rose on cross-racial witness misidentification). In connection with Old Chief, discuss – and perhaps build a simulation from – recent litigation (United States v. Ray, 803 F.3d 244 (2015)) challenging “felon-in-possession” terminology in light of 403 and implicit bias research.

12. Pose the question of what to do about the findings regarding the effects of implicit bias on jurors’ interpretation of evidence. Discuss the Western District of Washington implicit bias jury orientation video and one judge’s refusal to let her jurors watch it. Expose students to Prof. Cynthia Lee’s suggestion that jurors be given “race-switching” instructions. The Vienna Philharmonic moved to blind auditions in an effort to address gender bias. Consider brainstorming analogous approaches in the courtroom context.

Critique Traditional Notions of Truth-Seeking

13. Interrogate the FRE 102 characterization of the ultimate end of the federal rules: “ascertaining the truth and securing a just determination.” Is that what our rules do indeed strive for? If so, what’s missing from those efforts? Are those efforts consistent with Rule 606(b)?

14. Share with students Adam Benforado’s Op-Ed that asserts that “Our legal system is based on an inaccurate model of human behavior,” and that “Our justice system must be reconstructed upon scientific fact,” and that offers examples of the current bedrock: “untested assumptions about how memories work” and “untested assumptions about what deceit looks like.” Another useful source is Saks & Spellman’s “The Psychological Foundations of Evidence Law.”

15. Question assumptions of forensic reliability (Confrontation Clause case law, and, in particular, Williams v. Illinois, may provide a nice way into this topic; so also may Sean K. Driscoll’s “I Messed up Bad:” Lessons on the Confrontation Clause From the Annie Dookhan Scandal.). Examine recent reports on forensic fallibility and their lack of traction with the Justice Department (see e.g. Lynch and Sessions).

16. Question the role of video evidence. Do we overestimate its ability to solve a case/ tell the whole story? Dash cams or body cams may be blurry, but even if their quality is high, doesn’t perspective always play a huge role? Scott v. Harris & subsequent studies by Kahan et. al. of the Harris video may be useful here, as may the work of Neal Feigenson & Christina Spiesel (see, e.g., Law on Display).

17. Put forth alternative conceptions of “relevance” and “prejudice” under the traditional 403 balancing test.  Consider, for example, the different rulings in the murder trial of Ray Tensing, a white Cincinnati officer twice prosecuted (with two mistrials) for killing a black man, Sam DuBose, during a traffic stop.  Tensing was wearing a t-shirt under his uniform with a picture of a confederate battle flag, a symbol of white supremacy (picture here).  Tensing’s first trial judge admitted the t-shirt as relevant–not because of the message on the shirt, but because the shirt was damaged and contradicted the defendant’s testimony.  A second trial judge excluded the evidence as prejudicial under a 403 balancing test.  But why could the message on the t-shirt not itself be relevant? And how does the “prejudice” play out?  Students may find that they can imagine other conceptions of relevance and prejudice beyond those in the Tensing court rulings.

18. Question the idea, accepted in evidence case law, that evidence of flight from the police is admissible as circumstantial evidence of consciousness of guilt.  Compare, for example, United States v. Meyers, 550 F.2d 1036 (7th Cir. 1977), often cited in textbooks for the idea that flight is probative of guilt, with Commonwealth v. Warren, in which the Supreme Court of Massachusetts in 2016 found that black men fleeing the police might be doing so to avoid racial profiling or police violence rather than because of a guilty mind.  (See Gonzales Rose, Toward a Critical Race Theory of Evidence (connecting the doctrine of flight with the privileging of white norms and beliefs in evidence law).) Consider how similar arguments might be made for or against the “guilty mind” of an immigrant fearful of detection by ICE.

Problematize Gender Roles

19. Explore the ways in which the rules of evidence shift and bend in the context of domestic violence cases, for example with respect to the ban on “propensity” evidence and the doctrine of forfeiture by wrongdoing. See Collins, The Evidentiary Rules of Engagement in the War on Domestic Violence. Discuss the tension between uniform rules of evidence and “hard-to-prosecute” categories of cases such as domestic violence.  And connect this tension to the debate over whether bringing in the voices of “unavailable” (or uncooperative) complainants undermines the autonomy of survivors of domestic violence.  This discussion may bring up larger questions about whether ascertaining “truth” always advances our vision of “justice.” (See #13 above.)

20. Discuss how allegations of campus sexual assault may be addressed without the evidentiary or due process protections associated with the courtroom setting. See, e.g., Jennifer James, We Are Not Done: A Federally Codified Evidentiary Standard is Necessary for College Sexual Assault Adjudication; David DeMatteo et al., Sexual Assault on College Campuses: A 50-State Survey of Criminal Sexual Assault Statutes and Their Relevance to Campus Sexual Assault. How do these methods of adjudication stack up against those found in federal court?  Does this way of adjudicating cases also unsettle the inevitability of the FRE? (See #1 above.)

21. Encourage debate over the wisdom of rape shield laws.  Discuss, for example, how these laws might remedy the tendency of factfinders to discount the testimony of complainants based on assumptions of what makes a “good” victim.   At the same time, teach the underside of rape shield law, for example the ways in which the application and history of the laws might privilege some complainants over others along lines of race, class, gender, and identity.  See Capers, Real Women, Real Rape.

** We are indebted to colleagues, including Bennett Capers, Erin Collins, and Julia Simon-Kerr, who have contributed valuable feedback and suggestions. Any errors and omissions are solely attributable to members of the Guerrilla Guides collective noted here.


2 thoughts on “No. 5: Evidence

  1. Nice idea and suggestions. I would add the following suggestions ifyou have the time to flesh them out: (1) Consider matters from the perspective of the inevitable appeal. Ho should a court decide when an error in following an evidentiary error below is harmless. Discuss cases, including Supreme Court cases, that hold what seem to be serious evidentiary errors harmless. (I don’t recall the case now, but I think there is one which by a 5-4 vote said no reasonable jury would have been influenced by the error – I have always wondered about those 4 unreasonable Justices on the Court.). Ask who wins when a case is reversed on appeal and remanded for a new trial. Recognize that evidentiary errors are almost inevitable at some point in any trial. Ask how the system could function if there were anything close to an automatic rule of reversal. If this would be infeasible how should lines be drawn, and are there better ways than judicial speculation for deciding whether an error was almost certainly harmless.

    (2). Consider rules of evidence that are in theory the same in criminal and ivil cases and contrast their applications in these to spheres. One good area to do this is in Dauber and the admission of scientific evidence. Ask whether the standard is the same for e.g. Forensic handwriting evidence, hair evidence, arson evidence and even fingerprint evidence as it is in civil cases where plaintiffs seek to offer chemical, toxicological and biological expert testimony or to cite studies in these areas.

    (3). Recognize that depending on the jurisdictions upwards of 95% of cases are plea bargained or, in civil cases, settled out of court. What role do evidentiary rules play in encouraging or discouraging settlements. What matters can or should be decided before trial commences in order to allow the parties to make a more informed decisions about whether to settle a case. For example, should defendants be entitled to know whether their prior crimes will be admissible for impeachment or other purposes before trial so they can better determine their trial strategy. Should there be a way of having such decisions made considerably earlier so that they will inform plea bargaining?


    1. Thank you so much for 3 great suggestions, Richard. In an earlier draft, we suggested that the plea/settlement issue be highlighted throughout the course, and proposed a simulation that might have fleshed out the kinds of questions you raise. We should have kept it!


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