The Case for Selective Abolition of the Rules of Evidence

Abstract

This article advocates selectively abolishing the exclusionary components in the Federal Rules of Evidence. Arguing that some parts of the existing rules cost more than the value of any benefits they provide, it is the author's position that the current system is sufficiently dysfunctional so as to make significant revisions in the Rules of Evidence worthwhile. The article examines the hearsay rule, the rules governing repetitive-behavior evidence, and issues regarding opinion evidence, experts, and authentication. The article proceeds to consider the rest of the FRE 400 series - particularly Rules 401 through 403 - and proposes modifications. Next, the article evaluates some overall issues that apply to these rules, including their impact upon trials and strategic responses by judges and litigants. Finally, the article considers separate rules that could be inaugurated if the existing rules were changed as suggested (including rules designed resolve trials in a speedier fashion).