Is Evidence Law Just for Juries?

Why do we have evidence rules anyway? A common justification is that it’s to protect the process from cognitive failings of jurors, who might, say, attach too much weight to hearsay testimony or be prejudiced by a picture that was relevant but gory. A provocative law review article examines the related belief (and practice by many judges) that evidence law is less important in bench trials because judges can give the evidence the weight it deserves. Frederick Schauer, On the Supposed Jury Dependence of Evidence Law, 155 U. Pa. L. Rev. 165 (2006).

Prof. Schauer says that many judges relax the evidence rules in bench trials. But is this merited? Why should we believe that judges are any less prone to cognitive failings than the rest of the population?

Moreover, the existence of evidence rules may improve the fact-finding process. If parties know they will not be allowed to present hearsay evidence, then they will work harder to find more direct (and hence more reliable) evidence. If parties know they can’t rely on past acts evidence to show that a defendant acted in a certain way on a particular occasion, they will work harder to find evidence of this particular act.

There has been much discussion of the decline in civil jury trials in the U.S. I was interested in Prof. Schauer’s discussion of other countries: I hadn’t realized that jury trials are very, very rare in the UK and other common-law jurisdictions now.

See also:

• Barbara A. Spellman, On the Supposed Expertise of Judges in Evaluating Evidence, 156 PENNumbra 1 (2006). An empirical scholar considers different reasons that people might consider impermissible evidence and muses about how a study could be constructed to sort out whether judges are different from jurors in this regard.


• Walter Sinnott-Armstrong, Which Evidence Law? A Response to Schauer, 155 PENNumbra 129 (2006).


• Jennifer L. Mnookin, Bifurcation and the Law of Evidence, 155 PENNumbra 134 (2006). Maybe the reason judges seem cavalier about applying the rules of evidence to themselves it that, once they’ve had to decide on admissibility, they know about the evidence and they understand their own cognitive limitations: they can’t un-know it. If one judge made evidence rulings and another made factual findings, this could be avoided.

(PENNumbra is the online companion to the University of Pennsylvania Law Review.)