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
Recommended Citation
Edward K. Cheng & G. Alexander Nunn,
Beyond the Witness: Bringing a Process Perspective to Modern Evidence Law,
97
Tex. L. Rev.
1077
(2019).
Available at:
https://scholarship.law.tamu.edu/facscholar/1958