The Perils of Evidentiary Manipulation

Abstract

The use of evidentiary rules to achieve substantive goals strikes me as a Faustian bargain, and, given Bierschbach and Stein's acknowledgedly tentative position, I hope to dissuade them of the virtues of the practice. My goal therefore is to explore briefly the potential dark side of specialized evidentiary rules. The concerns of injecting substantive goals into evidence law extend far beyond the narrow legitimacy concerns Bierschbach and Stein raise. It is not simply the question of whether we aspire to a pluralistic or majority-take-all democratic society. Rather, evidentiary manipulation threatens the legitimacy of criminal and evidence law... Bierschbach and Stein's descriptive thesis, which comprises the core of their fascinating piece, is surely right. In a number of instances, evidentiary rules seemingly mediate between conflicting positions in criminal law. In addition, as they carefully acknowledge, this synergy may be largely fortuitous. No grand social engineer purposely chose the evidentiary rules to effect a compromise. Rather, the "mediating" rules are "product[s] of diverse institutional inputs and eras." The mechanisms that led to the current (happy) state of affairs may be simply too subtle and complex to discern. The trouble begins, however, when we take up the normative torch and explore what might happen if evidentiary rules were purposely used to achieve substantive objectives. We immediately encounter dangers well trodden in the procedural literature about draconian filing deadlines, onerous discovery rules, and other hidden traps. Perhaps evidentiary rules are different from procedural ones, but I struggle with finding a meaningful distinction, and Bierschbach and Stein leave the issue unaddressed.