ABSTRACT
At the Association of American Law Schools’ Annual Meeting in January 2016, the AALS Litigation Section offered a panel of jurists, practitioners, and scholars to address the topic, ‘Is Evidence Obsolete?’ The question arose from the trend beginning in the 1960s away from the traditional trial. Alternative dispute resolution, civil settlements, and criminal plea bargains have contributed to the decline of the trial as a method for resolving legal disputes. The roots of this phenomenon are no doubt many. The vanishing trial raises the following controversial questions: are the Federal Rules of Evidence obsolete? Do alternative mechanisms exist to protect our justice system without the need for evidence rules? What can we learn from the reasons for the disappearance of the trial to maintain the viability of a system of evidence rules?
To answer these questions, this article considers the purpose of the rules of evidence and explanations for the consistent decline in the percentage of cases going to trial to conclude that, although evidence is not obsolete, many improvements can be made to better situate the Federal Rules of Evidence for the present and the future. Flexibility in the application of the rules is critical to the continued viability of the rules. The article concludes that a simplified set of evidence rules, which highlights existing judicial discretion over formality, could suffice to better achieve the purpose of the Federal Rules: to ‘administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination’.
Schaffzin, Katharine Traylor, Is Evidence Obsolete? (January 1, 2016). Review of Litigation, volume 36, no 3, 2016.
First posted 2022-01-06 16:00:23
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