Document Type

Article

Publication Date

2023

Publication Title

Vanderbilt Law Review

Publication Title (Abbreviation)

Vanderbilt L. Rev.

Volume

76

Issue

6

First Page

1709

Abstract

The Federal Rules of Evidence have been so successful that many people easily equate them to the whole field of evidence law. But this is a false equivalence. Our world is complicated, diversified, and dynamic. So too is evidence law, which is like a rainforest in which the Federal Rules are simply the largest tree, not a forest unto themselves. In fact, the Federal Rules of Evidence are limited in their applicability due to three fundamental assumptions: the presence of a jury trial, an adversarial process, and witness oral testimony.

This article illustrates the dominance of the Federal Rules of Evidence since their launch, explains why the Rules do not fit in numerous realms of dispute resolutions outside common law jury trials, and shifts attention to three featured alternative evidence systems (whether extant or in draft form) from other parts of the world. These evidence systems structurally and logically look very different from the Federal Rules but fit well in their own contexts. Such comparative analysis brings out important evidence rule-making themes that are traditionally underexplored by American evidence scholars and legislators.

On the eve of the fiftieth anniversary of the Federal Rules of Evidence, the author stands at the crossroads of evidence law development and projects that its next era will necessitate going back to the forest, exploring different sets of evidence rules suitable in different sorts of dispute resolutions. Such a shift will help release evidence law from the traditional trap of the common law jury, significantly expand space for its continual growth, and further develop the law in a sophisticated, diversified way.

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