The Nature and Purpose of Evidence Theory

By Pardo, Michael S. | Vanderbilt Law Review, March 2013 | Go to article overview

The Nature and Purpose of Evidence Theory


Pardo, Michael S., Vanderbilt Law Review


The past few decades have seen an explosion in theoretical and empirical scholarship exploring the law of evidence. From a variety of disciplines and distinct methodological perspectives, this work has illuminated important issues regarding types of evidence, legal rules and doctrine, the reasoning processes of judges and juries, the structure of proof, and the normative considerations underlying these various issues. This Article takes up the theoretical project writ large. Exploring the landscape of evidence scholarship, the Article examines a number of methodological and metatheoretical questions: What would a successful evidentiary theory look like? By what criteria should we assess such a theory? What is the purpose of such theorizing? What is the relationship between the theoretical and empirical projects? In exploring these questions, the Article identifies criteria by which to evaluate theorizing in this area.

To that end, the Article first identifies two considerations that underlie any theoretical account of the evidentiary proof process and its components: factual accuracy and allocating the risk of erroneous decisions. Next, it articulates and defends general criteria by which to evaluate theoretical accounts in evidence scholarship in light of these considerations. Finally, it applies the general criteria to evaluate two theoretical accounts-a probabilistic conception and an explanatory conception-and concludes that the probabilistic conception fails and the explanatory conception succeeds in light of the theoretical criteria. Along with clarifying evidence theory, the Article also clarifies the relationship between theoretical and empirical scholarship in this area.

INTRODUCTION .................. 548

I. EVIDENCE THEORY .................. 559

A. Theoretical Criteria .................. 562

1. The Micro-Level Constraint .................. 562

2. The Macro-Level Constraint .................. 565

3. The Integration Constraint .................. 568

B. Additional Evidentiary Rules .................. 569

C. Clarifying Evidence Theory: Assumptions, Distractions, Confusions .................. 571

II. A PROBABILISTIC CONCEPTION OF EVIDENCE AND PROOF .. 574

A. The Micro-Level Constraint .................. 576

1. Relevance .................. 576

2. Probative Value .................. 587

B. The Macro-Level Constraint .................. 590

1. Accuracy .................. 591

2. Risk of Error .................. 592

C. The Integration Constraint .................. 594

III. An Explanatory Conception of Evidence and Proof .................. 596

A. The Micro-Level Constraint .................. 600

B. The Macro-Level Constraint .................. 603

C. The Integration Constraint .................. 610

Conclusion .................. 612

Introduction

Approximately twenty-five years ago, Professor Richard Lempert, reflecting on the then-current state of evidence scholarship, noted a dramatic shift underway.1 He described what had become a largely "moribund" field giving way to a burgeoning "new evidence scholarship."2 The scholarship in the moribund phase employed "a timid kind of deconstructionism with no overarching critical theory," was "seldom interesting," and any "potential utility" was "rarely realized"; Lempert proposed the following mock article title as a model representing the genre: "What's Wrong with the Twenty-Ninth Exception to the Hearsay Rule and How the Addition of Three Words Can Correct the Problem."3 By contrast, the "new evidence scholarship" was moving from merely interpreting rules to "analyzing the process of proof and drawing insights from "mathematics, psychology and philosophy."4 To be clear, the new evidence scholarship still focused to a large extent on rules, but it provided more robust analysis in light of the legal proof process and its underlying goals - most significantly, the goals of fostering accurate outcomes, avoiding factual errors, and allocating the risk of error in a fair and justified manner. …

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