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How Machines Reveal the Gaps in Evidence Law

Posted by on Monday, November 27, 2023 in Articles, Volume 76, Volume 76, Number 6.

Andrea Roth | 76 Vand. L. Rev. 1631

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.

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Andrea Roth