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One Size Does Not Fit All: Alternatives to the Federal Rules of Evidence

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

Henry Zhuhao Wang | 76 Vand. L. Rev. 1709

The Federal Rules of Evidence have been so successful that many people equate them to the whole field of evidence law. But this is a false equivalence. Our world is complicated, diversified, and dynamic. So, too, is evidence law, which is like a rainforest in which the Federal Rules are simply the largest tree, not a forest unto themselves. In fact, the Federal Rules of Evidence are limited in their applicability due to three fundamental assumptions: the presence of a jury trial, an adversarial process, and witness oral testimony. The universe of dispute resolution, however, extends far beyond a contour that is covered by these three assumptions.

This Article illustrates the dominance of the Federal Rules of Evidence since their launch, explains why the Rules do not fit in numerous dispute- resolution contexts outside common-law jury trials, and shifts attention to three featured alternative evidence systems (whether extant or in draft form) from other parts of the world. These evidence systems look structurally and logically different from the Federal Rules but fit well in their own contexts. Such comparative analysis brings out important evidence-rulemaking themes that are traditionally underexplored by U.S. evidence scholars and legislators.

On the eve of the fiftieth anniversary of the Federal Rules of Evidence, the author stands at the crossroads of evidence-law development and projects that its next era will necessitate going back into the forest to explore different sets of evidence rules suitable in different dispute resolution settings. Such a shift will help release evidence law from the traditional trap of the common-law jury, significantly expand space for its continual growth, and further develop the law in a sophisticated, diversified way with built-in flexibility.

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Henry Zhuhao Wang