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Publication Date

2013

Abstract

This Article places the relationship between evidence
rules and the modern trial in a historical context. The
trial's foundation is in popular culture-lay witnesses
testifying before a lay jury. Eighteenth-century trials were
a "rambling altercation" between the defendant and his
accusers-unruly (literally), unstructured, very brief, and
less concerned with the "truth"than a socially acceptable
judgment. The modern trial's emergence in the nineteenth
century coincided with the professionalization of law, the
active involvement of lawyers as advocates, and the
sprouting of evidence rules to regulate both lawyers and
lay juries. Nonetheless, evidence law accommodated
prevailing lay culture in order to foster legitimacy. Trials
now searched for the truth, but did so in nineteenth-
century terms.
The problem today is that many of the key
epistemological assumptions of modern evidence law,
especially credibility and character, draw from those
nineteenth-century roots. Dissatisfaction with some rules
has triggered several troubling trends. One fixates on
esoteric rules that beget inscrutable, often nonsensical,
distinctions. A second embraces psychology and social
science as a means of fact finding and the polestar for the
rules themselves. Examples of both trends are drawn from
character evidence, expert testimony, and credibility
doctrine.

Together, these trends reveal the law's discomfort with,
and occasional contempt for, contemporary lay thinking.
Trials are fast becoming a pedantic joust, inaccessible to
the lay public. Neither sophistic rules nor the latest
styling of social science are the answer. Yet it may well be
that current evidence law poorly reflects modern popular
thinking as well. The trial's legitimacy demands that
evidence law effectively mediate between legal institutions
and prevailing social and cultural thought about
credibility and human contact.

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