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Beyond the Witness: Bringing a Process Perspective to Modern Evidence Law

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law of evidence, expert witness, trial practice


Evidence | Law


For centuries, the foundation of the Anglo-American trial has been the witness.' Witnesses report on their personal observations, provide opinions of character, offer scientific explanations, and in the case of parties, narrate their own story. Indeed, even for documentary and other physical evidence, witnesses often provide the conduit through which such evidence reaches the factfinder. Documentary or physical evidence rarely stands on its own. The law of evidence has thus unsurprisingly focused on-or perhaps obsessed over-witnesses. The hearsay rule and the Confrontation Clause demand that declarants be available witnesses at trial so that they may be subject to cross-examination.' Expert evidence rules emphasize an expert witness's qualifications, bases, and methods.' Even the framework for admitting photographs-evidence that is often self-explanatory-is witnesscentric. Trial practice commonly treats photographs as demonstrative evidence, reducing them to a mere illustration of the vouching witness's testimony.

Our contention is that this witness-centered perspective is antiquated and counterproductive. It is a deeply limited and ultimately distortive lens through which the legal system views the evidence available in the modem world.

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