Document Type

Article

Publication Date

5-2019

Journal Title

Texas Law Review

ISSN

0040-4411

Abstract

The focal point of the modern trial is the witness. Witnesses are the source of observations, lay and expert opinions, authentication, as well as the conduit through which documentary, physical, and scientific evidence is introduced. Evidence law therefore unsurprisingly concentrates on – or perhaps obsesses over – witnesses. In this Article, we argue that this witness-centered perspective is antiquated and counterproductive. As a historical matter, focusing on witnesses may have made sense when most evidence was the product of individual observation and action. But the modern world frequently features evidence produced through standardized, objective, and even mechanical processes that largely eliminate individual judgment. The traditional regime handles such process-based evidence poorly, relying on legal fictions and awkward procedures for handling things like forensic lab results, photographs, scientific articles, and business records. This Article therefore discards these fictions and proposes a broad new conceptual approach to process-based evidence. Our suggested reforms recognize process-based evidence on its own terms and provide a practical framework for testing and challenging it.

First Page

1077

Last Page

1124

Num Pages

48

Volume Number

97

Issue Number

6

Publisher

University of Texas School of Law

File Type

PDF

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