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On Proving Mabrus and Zorgs

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

Michael S. Pardo | 76 Vand. L. Rev. 1653

An unfortunate disconnect exists in modern evidence scholarship. On one hand, a rich literature has explored the process of legal proof in general and legal standards of proof in particular. Call this the “macro level” of legal proof. On the other hand, a rich literature has explored the admissibility rules that regulate the admission or exclusion of particular types of evidence (such as hearsay, character evidence, expert testimony, and so on). Call this the “micro level” of legal proof. Little attention, however, has focused on how the issues discussed in these two distinct strands of evidence scholarship intertwine. One important connection concerns the process and the standards for proving admissibility or exclusion when admissibility or exclusion depends on disputed facts.

This Article illustrates how the theoretical debates regarding the proof process as a whole also apply to questions of admissibility. Federal Rule of Evidence 104 creates a two-part structure for the admissibility of evidence that largely mirrors proof issues that apply to a case as a whole—some issues are decided by a fact finder, and some issues are decided under a “reasonable jury” standard. A classic article by John Kaplan coined the terms “mabrus” and “zorgs” to refer to these different types of admissibility determinations. Extending Kaplan’s analysis, this Article argues that the best account of what grounds the proof process as a whole (the macro level)—that is, an explanatory account that focuses on the relationships between the evidence and the competing explanations of the parties—also applies to admissibility determinations (the micro level).

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Michael S. Pardo