Abstract
The truth matters. At least it should. In the courtroom, truth can serve as the cornerstone of justice, liberating the innocent, vindicating victims, and holding the guilty to account. Indeed, truth is such a normative imperative that an entire legal discipline now focuses on fostering its discovery at trial— evidence law. By regulating both the reliability of proof and the rationality of cognitive inferences, evidence law seeks to help factfinders discern truth and reach an accurate verdict. And given the importance of that role, one might naturally assume that the strict enforcement of evidence law would be a legal mandate of the utmost importance. But that assumption is wrong. Our legal system’s commitment to truth is overshadowed by a near-religious commitment to the adversarial process. And far from prioritizing verdict accuracy, the adversarial process actively subverts the discovery of truth. Adversarialism, for instance, dictates that evidentiary rules have no force absent ad hoc objections by a party. Moreover, in the absence of an objection, judges typically hold their tongues and admit misleading and prejudicial evidence by rote. Predictably, fetishizing adversarialism in this way has proven problematic. Attorney enforcement of evidence law has produced a deeply disturbing record of incompetence, dishonesty, and discriminatory animus. Reform is therefore essential. This Article reveals that, despite its modern ubiquity, evidentiary adversarialism rests on a tenuous foundation. History offers no compelling justification for its initial emergence, and contemporary legal authority fails to explain its continued prominence. Close scrutiny thus demonstrates that compulsory evidentiary adversarialism is a myth, an errant assumption that has calcified into a deleterious norm. The Article therefore proposes a better path forward. Because evidentiary adversarialism’s legal basis is illusory, the judiciary should enforce evidence law sua sponte, an inquisitorial intervention that is both precedented and justified. Complementary judicial enforcement of evidence law would improve verdict accuracy, combat systemic inequities, and reaffirm our legal system’s commitment to the truth.
Recommended Citation
G. Alexander Nunn,
Judicial Enforcement of Evidence Law,
78 Vanderbilt Law Review
(2025)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol78/iss5/6