Document Type

Article

Publication Date

2022

Publication Title

UC Irvine Law Review

Publication Title (Abbreviation)

UC Irvine L. Rev.

Volume

13

First Page

263

Abstract

American jury trials are vanishing. Statistics indicate that the number of jury trials in the United States federal and state courts has diminished for decades, a phenomenon that has become even more pronounced amid the ongoing COVID-19 pandemic. Courts throughout the nation are on track for more than a year without any trials by jury. But as jury trials wane, bench trials are dominant in federal and state courts for both civil and criminal cases. What does that mean, then, for evidentiary rules? The Federal Rules of Evidence, first adopted in 1975, codify federal evidence law and have been adopted by the vast majority of states. Technically speaking, these rules apply to both jury and bench trials. However, in practice, trial judges often apply rules of evidence loosely when they sit without a jury. In an era when bench trials have become the new normal, such an enormous gap between the law in operation and that in the books suggests the need to reexamine the current arrangement of FRE, to inquire whether bench trials should have their own customized rules of evidence, and, if so, what those rules should look like.

This article examines the similarities and differences between jury and bench trials in judicial fact-finding, explains why bench trial judges cannot rely on free proof and instead still need the guidance of evidence rules—albeit different rules than those used for jury trials. This article proposes five major directions developing evidentiary rules for bench trials, and discusses why and how such a project could go beyond American bench trials, making a profound impact globally.

This article argues that in bench trials, as opposed to jury trials, laypeople are removed from the fact-finding process, which inevitably triggers a vastly different practice in judicial fact-finding. This change is profound in practice. Because of it, evidence rules designed for jury trials – as embodied in the Federal Rules of Evidence – cannot be cleanly, effectively, or sometimes even coherently applied to bench trials. Once reformers of evidence law, move out of the enormous shadow of jury trials and start to think afresh about the best arrangement of evidentiary rules for bench trials, we will create a new space for discussion, one that has rarely been accessed in previous scholarship of the common-law evidence world.

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