The Constitutional Demand for Evidentiary Asymmetry to Protect the Accused
Evidence law’s ultimate purpose is to maximize accurate fact-finding. Footnote #1 content: FED. R. EVID. 102 (“These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.”). To encourage accuracy, evidence rules are typically applied symmetrically to both parties, allocating the risk of error equally. Footnote #2 content: See Dale A. Nance, Allocating the Risk of Error: Its Role in the Theory of Evidence Law, 13 LEGAL THEORY 129, 130–31 (2007) (book review) (explaining conventional framework in Anglo-American evidence law is to serve the goals of “(1) enhancement of accuracy in fact-finding, or, in other words, minimization of the risk of error; (2) minimization of the expenses that fact-finding procedures and decisions incur; and (3) apportionment of the risk of error with the consequent risk of misdecision between the parties to litigation.”); see also Michael S. Pardo, The Nature and Purpose of Evidence Theory, 66 VAND. L. REV. 547, 561 (2013) (explaining that evidence rules are applied symmetrically in civil cases but less symmetrically in criminal cases). To prevent errors, the rules exclude relevant evidence when deemed “unreliable.” Footnote #3 content: See, e.g., FED. R. EVID. 801, 702; see also Madeline Smedley, Note, Hearsay in the Modern Age: Balancing Practicality and Reliability by Amending Federal Rule of Evidence 801(d)(1)(A), 87 GEO. WASH. L. REV. 207, 209 (2019) (“The hearsay rule is a prime example of a limitation that enhances the reliability of evidence, as the rule’s main function is to keep out statements if their trustworthiness cannot be adequately assessed.”); see generally Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (holding that Rule 702 requires trial judges to ensure expert testimony is reliable). Trial judges are granted significant discretion to decide whether certain evidence is “reliable” or not. Footnote #4 content: See generally Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (holding that Rule 702 grants trial judges significant discretion in determining whether to admit expert testimony). Admitting only relevant and reliable evidence is thought to aid factfinders in uncovering the ultimate truth. Footnote #5 content: See FED. R. EVID. 102; Katherine Goldwasser, Vindicating the Right to Trial by Jury and the Requirement of Proof Beyond a Reasonable Doubt: A Critique of the Conventional Wisdom about Excluding Defense Evidence, 86 GEO. L. J. 621, 632 (1998).
But, in criminal trials, “truthfinding is not the only value at stake.” Footnote #6 content: Goldwasser, supra note 5, at 632. Other values like the presumption of innocence, the moral force of criminal law, and the accused’s liberty interest cut against maximizing accuracy. These principles are rooted in the Constitution, which grants the accused procedural rights in criminal trials that the prosecution does not enjoy. Footnote #7 content: See U.S. CONST. amends. IV, V, VI.
Criminal defendants’ constitutional rights often conflict with established evidence rules, frustrating the truth-seeking goals of evidence law. Footnote #8 content: See infra Part II.B. The Constitution requires some level of evidentiary asymmetry in criminal trials, in part to correct for the asymmetrical interests of the accused and the prosecution. Footnote #9 content: See U.S. CONST. amends. V, VI (identifying rights specific to the accused, including the evidentiary right “to be confronted with the witnesses against him”); Nuno Garoupa, Explaining the Standard of Proof in Criminal Law: A New Insight, 25 SUP. CT. ECON. REV. 111, 112–13 (2017) (discussing how the constitutional requirement of a “beyond a reasonable doubt” burden of proof for criminal defendants has justified based on the assumption that a “false positive,” or a wrongful conviction, is more costly than a “false negative,” or a wrongful acquittal). Constitutional rights, therefore, ought to limit the scope of evidence rules when applied to criminal defendants.
However, the Federal Rules of Evidence were not drafted with modern constitutional concerns in mind. Footnote #10 content: The Federal Rules of Evidence were first drafted in 1970 and codified in 1975. See G. Alexander Nunn, The Living Rules of Evidence, 170 U. PA. L. REV. 937, 957 (2022). However, some amendments to the Federal Rules have since focused on emerging constitutional problems. See Daniel J. Capra & Liesa L. Richter, Long Live the Federal Rules of Evidence!, 31 GEO. MASON L. REV. 1, 31–38 (2024). An example is Federal Rule of Evidence 803, which was partially drafted with the Confrontation Clause in mind. See FED. R. EVID. 803 advisory committee’s note. It states: While these rules do not in general purport to resolve constitutional issues, they have in general been drafted with a view to avoiding collision with constitutional principles. Consequently the exception [803(22)] does not include evidence of the conviction of a third person, offered against the accused in a criminal prosecution to prove any fact essential to sustain the judgment of conviction. A contrary position would seem clearly to violate the right of confrontation. Id. Caselaw interpreting that Rule 803(6) may not be used to circumvent 803(8) has also generally been based on confrontation considerations. See FED. R. EVID. 803 advisory committee’s note. The Advisory Committee’s notes state: [T]he rule with respect to evaluate [sic] reports under item (c) is very specific; they are admissible only in civil cases and against the government in criminal cases in view of the almost certain collision with confrontation rights which would result from their use against the accused in a criminal case. Id. As discussed in Part II.B, the confrontation right has been enforced more forcefully against the Federal Rules of Evidence since Crawford v. Washington, 541 U.S. 36 (2004). Rule 402 simply provides that “[r]elevant evidence is admissible”—unless the Constitution “provides otherwise.” Footnote #11 content: FED. R. EVID. 402. And the Advisory Committee’s Note to Rule 402 states that the “rule recognizes but makes no attempt to spell out the constitutional considerations which impose basic limitations upon the admissibility of relevant evidence.” Footnote #12 content: FED. R. EVID. 402 advisory committee’s note. With the exception of Rules 803(8) and 412, Footnote #13 content: See sources cited supra note 10; FED. R. EVID. 412(b)(1)(C) (“The court may admit . . . evidence whose exclusion would violate the defendant’s constitutional rights.”). the rules that frequently conflict with defense rights generally do not acknowledge that constitutional concerns might be at play—leaving constitutional enforcement to the accused and their counsel. Footnote #14 content: See, e.g., FED. R. EVID. 702 (providing a framework for excluding expert testimony without advising that such exclusion might violate a defendant’s right to present a defense). And, although amendments to the rules have focused on ensuring that criminal defendants are treated fairly, Footnote #15 content: See Capra & Richter, supra note 10, at 31–38 (discussing the Advisory Committee’s efforts to ensure fairness for the criminally accused through a notice amendment to Rule 404(b), an amendment of Rule 804(b)(3) which originally placed a heavier burden on criminal defendants’ introduction of hearsay statements against interest, an amendment that narrowed the breadth convictions that were automatically admitted under Rule 609, an amendment to Rule 106 which had been interpreted by some circuits to prevent criminal defendants from correcting a misimpression created by the prosecution, and the recent amendment to Rule 702 which limits overstatement by testifying experts). substantive changes have thus far largely maintained the status quo. Footnote #16 content: See Nunn, supra note 10, at 961 (arguing that amendments adopted by the Advisory Committee since the Rules’ inception are “demonstrative of an affinity for the status quo” and that “[m]issing [from the Federal Rules] is any attempt to expressly consider evidence law’s role in falsely convicting scores of defendants exonerated by the Innocence Movement.”). Professor Nunn also notes that the complicated process for amendment may be in part to blame for the lack of truly significant changes to the Rules: “[E]ven if rulemakers did deem a particular amendment desirable, the current bureaucratic maze establishes a de facto three-year process to actualize it.” Id. at 958.
When applied to criminal defendants, this Note argues that certain evidence rules have attained supremacy over criminal defendants’ constitutional rights. A review of the Federal Rules of Evidence that have come into repeated conflict with defendants’ constitutional rights demonstrates how evidence regulation tends to occupy the field, depriving defense rights of any evidentiary bite. These rights include the right to present a defense, the right to be proven guilty beyond a reasonable doubt, and the right to an impartial jury. When these rights conflict with evidentiary values, courts are reluctant to find evidence rules unconstitutional on their face or even in their application. Ironically, although almost all evidence rules apply equally to the parties, in practice, some tend to favor the prosecution.
This Note argues that greater asymmetry in favor of criminal defendants is necessary to avoid evidentiary supremacy over constitutional rights and to enforce constitutional norms. Understood from this perspective, constitutional enforcement need not only occur through major doctrinal development—that is, overturning or abrogating cases that have weakened defense rights. Instead, implementing defense rights can occur through more constitutionally avoidant applications of evidence rules or through amendments to the rules themselves.
Part I begins with background on the constitutional principles that call for asymmetry, such as the values undergirding the right to be proven guilty beyond a reasonable doubt. Part I proceeds with a discussion of the Supreme Court’s recognition of the demand for asymmetry as a means to enforce the supremacy of defense rights over evidence rules. The history of the Court’s Confrontation Clause jurisprudence provides a helpful example of a constitutional right that was rescued from being absorbed into, and subservient to, modern evidence law.
Part II discusses how the application of certain evidence rules has overtaken or displaced other defense rights over time. First, Federal Rule of Evidence 702, which regulates the admission of testimony by expert witnesses, is generally applied asymmetrically—but in favor of the prosecution. This not only frustrates the rule’s purpose of ensuring the reliability of expert witnesses, but also conflicts with the accused’s constitutional right to present a meaningful defense. Second, Federal Rule of Evidence 606(b), the exclusionary rule which prohibits the use of jurors’ testimonies about their deliberations to impeach a verdict, directly prevents the enforcement of the criminal defendant’s right to an impartial jury.
Finally, Part III ends with an outline of several suggested approaches that may help to implement greater asymmetry in the Federal Rules of Evidence to prevent further constitutional displacement. Part III ultimately recommends amendment as the most effective approach for ensuring the accused’s liberties are protected.
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