EVIDENCE LAW ALLOCATES THE RISK OF ERROR
RATHER THAN FACILITATES ASCERTAINMENT OF THE TRUTH
Evidence rules are not geared towards ascertainment of the truth. Their primary purpose is to properly allocate the risk of error in fact-finding. What counts as a "proper" allocation of the risk of error is a difficult question that crucially depends on political morality.
I develop three fundamental principles for allocating the risk of error: the cost-efficiency principle which applies across the board; the equality principle which applies in civil litigation; and the equal-best principle which applies in criminal trials. The cost-efficiency principle demands that fact-finders minimize the total cost of errors and error-avoidance. Under the equality principle, fact-finding procedures and decisions must not produce an unequal apportionment of the risk of error between the claimant and the defendant. This risk should be apportioned equally between the parties. The equal-best principle sets forth two conditions for justifiably convicting and punishing a defendant. The state must do its best to protect the defendant from the risk of erroneous conviction and must not provide better protection to other individuals. Regulating both the admissibility of evidence and its sufficiency, these principles explain and justify many existing evidence rules.
These (and several other) insights are developed in Foundations of Evidence Law (Oxford University Press, 2005)
THE ANTI-POOLING JUSTIFICATION OF THE FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION (THE RIGHT TO SILENCE)
The right to silence has a solid consequentialist justification. The conventional perception of this right -- that it impedes the search for truth and thus helps only criminals -- is mistaken. The right to silence helps triers of fact to distinguish between innocent and guilty defendants. A guilty suspect's self-interested response to questioning can impose externalities, in the form of wrongful conviction, on innocent suspects and defendants who tell the truth but cannot corroborate their stories. Absent the right to silence, guilty suspects and defendants would make false exculpatory statements if they believed that their lies were unlikely to be exposed. Aware of these incentives, triers of fact would rationally discount the probative value of uncorroborated exculpatory statements at the expense of innocent defendants who could not corroborate their true exculpatory statements. Because the right to silence is available, innocent defendants tell the truth while guilty defendants rationally exercise the right when they fear that lying is exceedingly risky. Thus, guilty defendants do not pool with innocents by lying; and as a result, triers of fact do not wrongfully convict innocent defendants.
The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege, 114 Harvard Law Review 430 (2000) (with Daniel Seidmann) download
THE OVERENFORCEMENT PARADIGM
Overenforcement of the law occurs when the total sanction suffered by the violator of a legal rule exceeds the amount optimal for deterrence. Overenforcement sometimes generates overdeterrence that cannot be remedied through the adjustment of substantive liability standards or penalties in light of operational and expressive constraints. When that happens, the legal system can counteract the effects of overenforcement by adjusting evidentiary or procedural rules to make liability less likely (ex ante). This framework -- the overenforcement paradigm -- illuminates previously unnoticed features of various evidentiary and procedural arrangements. It also provides a useful analytical and prescriptive tool for creating balanced incentives in cases in which overenforcement is present.
Overenforcement, 93 Georgetown Law Journal 1743 (2005) (with Richard A. Bierschbach) download
MEDIATING RULES IN CRIMINAL LAW
This article challenges the conventional divide between substantive criminal law theory, on the one hand, and evidence law, on the other, by exposing an important and unrecognized function of evidence rules in criminal law. Throughout the criminal law, special rules of evidence work to mediate conflicts between criminal law’s deterrence and retributivist goals. They do this by skewing errors in the actual application of the substantive criminal law to favor whichever theory has been disfavored by the substantive rule itself. The mediating potential of evidentiary rules is particularly strong in criminal law because the substantive law’s dominant animating theories – deterrence and retributivism – respond asymmetrically to the workings of those rules. We analyze the features of “mediating rules,” explore their effects across a range of substantive areas, and offer a tentative normative assessment of their role in the criminal law system.
Mediating Rules in Criminal Law, 93 Virginia Law Review 1197 (2007) (with Richard A. Bierschbach) download
CONSTITUTIONAL EVIDENCE LAW
This Article identifies the causes and consequences of a puzzling asymmetry in constitutional law. Of the three facets of adjudicative fact-finding—evidence, procedure, and rules of decision—only two are constitutionalized. Constitutional law regulates procedure and decisional rules—not whether the evidence that fact-finders use is adequate. Allocation of the risk of error by procedures and decisional rules—formulated as burdens of proof—is subject to constitutional scrutiny. Allocation of the risk of error by the rules of evidential adequacy, however, is free from that scrutiny. This constitutional asymmetry is puzzling because all risk-allocation impacts court decisions, and consequently whether a person is erroneously deprived of her liberty or property.
This Article explains this asymmetry in the informal constitutionalization of evidence—a phenomenon that implicates three dynamics of power and culture. First, state evidence rules generally align with the Supreme Court’s agenda for risk-allocation. Second, when those rules do deviate from this agenda to promote local interests, they do not do so overtly. Finally, a state rule’s alignment with a federal rule of evidence guarantees its constitutionality. This informal order reflects a series of implicit, but credible understandings between state courts and the Supreme Court. This Article identifies and illustrates these understandings.
Constitutional Evidence Law, 61 Vanderbilt Law Review ____ (2008) download
THE "BLUE CAB" EXPERIMENT:
ARE FACT-FINDERS "PROBABILISTICALLY CHALLENGED"?
They are not. The experiment is methodologically deficient, as is the behavioral economics' assumption that one needs to conceptualize probabilities in the Pascalian way in order to be rational.
A Liberal Challenge to Behavioral Economics: The Case of Probability, 2 New York University Journal of Law & Liberty 531 (Symposium on Behavioral Law & Economics' Challenge to the Classical Liberal Program) download
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