Vanderbilt Law Review

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If you were a federal judge presiding over a bench trial, you probably would not want the Federal Rules of Evidence to apply to you. Sure, you might want to be insulated from privileged information. But you are, no doubt, capable of cool-headed, rational reasoning, and you have a realistic understanding of how the world works; if you got evidence that was unreliable or easy to overvalue, you could handle it appropriately. But surely, you would have the same desire if you were a juror--it is not your position as a judge that makes you want all the relevant evidence. And in either event, you would, perhaps, be overestimating your own abilities.

The Rules themselves give mixed messages about whether judges should apply them in bench trials. Formally, they apply. Federal Rule of Evidence 1101 provides that the Rules "apply to proceedings before . . . United States district courts," in "civil cases and proceedings," and in "criminal cases and proceedings."

But several rules appear to assume that the evidence is being presented to a jury. For example, Rule 104(c) prescribes when a hearing on a preliminary question must be conducted "so that the jury cannot hear it"; Rule 105 provides that if evidence is admissible for one purpose but not another--such as an out-of-court statement admissible for a non-hearsay purpose but inadmissible for its truth... the court "must ... instruct the jury accordingly"; Rule 201(f) says the court "must instruct the jury" of the significance of a judicially noticed fact; Rule 403 allows courts to exclude evidence due to a danger of "misleading the jury";" Rules 703 and 706 address when parties may disclose certain facts to the jury; and Rule 614 refers to a party objecting "when the jury is not present." Perhaps the only rule that explicitly contemplates that there might not be a jury is Rule 1008, which addresses the functions of the court and the jury "in a jury trial." The history of the Rules also points to a central role for the jury; they originated, at least in part, in response "to a concern about the cognitive or decision-making capacities of jurors." As James Bradley Thayer famously observed, the exclusion of relevant evidence due to practical concerns "stamp[s]" the law of evidence as "the child of the jury system."

Included in

Evidence Commons