The fate of evidence law: Two paths of development

Abstract

Evidence law was famously deemed ‘the child of the jury’, its development widely perceived as a by-product of the jury trial. Conventional wisdom tells us that juries, because of their cognitive and epistemic failings, can hardly be trusted and thus need rules of evidence to steer them in the right direction. Therefore, given that jury trials are vanishing in the United States and other common law countries, we must question whether the traditional evidence-law model is sustainable. At the same time that juries have been on the decline, rapid developments in science and technology have led to new forms of evidence, including scientific evidence, electronic evidence and process-based evidence. Presenting these new types of evidence at trials, however, often creates a mismatch with the traditional evidence-law framework. A systematic redesign of 21st-century evidence law to better accommodate the intensified interplay between science, technology and the law seems to be the next natural development. This essay explores these two distinct paths of evidence law—the old, jury-driven model and a new, science-directed model—and argues for preserving the old path while at the same time spending more resources and making greater effort to accommodate these new forms of evidence.