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Abstract
This Symposium asks participants to reimagine the Federal Rules of Evidence on the fiftieth anniversary of their effective date. As part of that conversation, this short Essay argues that the Rules of Evidence contain critical gaps in terms of empowering litigants to meaningfully challenge the credibility of evidence. Specifically, the increasing use of machine-generated proof has made clear that evidence law does not offer sufficiently meaningful opportunities to scrutinize conveyances of information whose flaws cannot be exposed through cross-examination. These underscrutinized conveyances include machine-generated output, information conveyed by animals, and statements made by absent hearsay declarants. Even for some witnesses who can be cross-examined-such as eyewitnesses offering identifications and experts using a testable method-evidence law too often fails to subject their claims to meaningful scrutiny because of its overreliance on cross-examination.
As I explain below, these gaps have not always existed. That is, the rules of evidence have not always myopically focused on cross-examination as the primary means of testing human assertions, nor have they always excluded claims whose flaws cannot easily be tested by cross-examination from the scope of testimonial safeguards. Instead, this narrowing of evidence law appears to correspond with the rise of the "lawyerly art" of cross-examination in the mid-nineteenth century and a greater focus on the one testimonial infirmity of humans-insincerity-particularly suited to testing by cross-examination. Ironically, the legal case for a right to meaningfully scrutinize machine-generated proof might have been easier to make in 1823 than in 2023.
Recommended Citation
Andrea Roth -- Barry Tarlow Chancellor's Chair in Criminal Justice and Professor of Law,
How Machines Reveal the Gaps in Evidence Law,
76 Vanderbilt Law Review
1631
(2023)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol76/iss6/3