Bending the Rules of Evidence

Edward K. Cheng, G. Alexander Nunn & Julia Simon-Kerr | October 8, 2023

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.