It is somewhat confusing (at least to legal readers) that you use legal terms in non-standard ways. Conflating confrontation with hearsay issues is confusing because making people available for cross-examination solves the confrontation problem but not always the hearsay one.
I like your emphasis on the filtering function of evidentiary rules. Keep in mind, however, that these rules have little effect in bench trials (which are more common than jury trials in state courts of general jurisdiction). And relatively few cases reach trial at all; more are disposed of by pretrial motions or by settlements. (For some data, you could check out this paper by Marc Galanter.) So this filtering process is only rarely applied in real-world cases!
Before suggesting that we should exclude evidence of low reliability, you should probably take more time to think about substitution effects. If lawyers cannot use multiply embedded hearsay, what will juries hear instead? Also, you would want to establish that juries would systematically err in their use of such evidence. It is not a problem to have unreliable evidence come in if juries in fact recognize its unreliability.
I’ve recently spent some time thinking about how we might apply the scientific method towards designing better rules of legal procedure and evidence. It turns out to be trickier than you might think, largely because it is hard to measure the impact of legal rules on the accuracy of case resolutions. If you are curious about such things (and with apologies for blatant self promotion), you might want to read some of what I wrote here, particularly parts 2-4.
It is not a problem to have unreliable evidence come in if juries in fact recognize its unreliability.
I’m skeptical. After all, the anchoring effect isn’t weakened by being reminded that it exists. It seems that anything the jury sees will influence their decision, and they will likely be unable to discount its influence appropriately to account for its unreliability (especially if its emotionally charged).
I’ve always been uneasy when the judge on some court TV drama sustains an objection or asks that something be stricken from the record, as if that means it’s stricken from the minds of the jury so it won’t influence their decision. We have good reason to believe that that’s impossible—the jury’s brains have been primed with a piece of argumentation that the judge has recognized is unadmissible. It’s too late. At least, it has always seemed that way to me. What does the legal literature say about this?
A few comments:
It is somewhat confusing (at least to legal readers) that you use legal terms in non-standard ways. Conflating confrontation with hearsay issues is confusing because making people available for cross-examination solves the confrontation problem but not always the hearsay one.
I like your emphasis on the filtering function of evidentiary rules. Keep in mind, however, that these rules have little effect in bench trials (which are more common than jury trials in state courts of general jurisdiction). And relatively few cases reach trial at all; more are disposed of by pretrial motions or by settlements. (For some data, you could check out this paper by Marc Galanter.) So this filtering process is only rarely applied in real-world cases!
Before suggesting that we should exclude evidence of low reliability, you should probably take more time to think about substitution effects. If lawyers cannot use multiply embedded hearsay, what will juries hear instead? Also, you would want to establish that juries would systematically err in their use of such evidence. It is not a problem to have unreliable evidence come in if juries in fact recognize its unreliability.
I’ve recently spent some time thinking about how we might apply the scientific method towards designing better rules of legal procedure and evidence. It turns out to be trickier than you might think, largely because it is hard to measure the impact of legal rules on the accuracy of case resolutions. If you are curious about such things (and with apologies for blatant self promotion), you might want to read some of what I wrote here, particularly parts 2-4.
I’m skeptical. After all, the anchoring effect isn’t weakened by being reminded that it exists. It seems that anything the jury sees will influence their decision, and they will likely be unable to discount its influence appropriately to account for its unreliability (especially if its emotionally charged).
I’ve always been uneasy when the judge on some court TV drama sustains an objection or asks that something be stricken from the record, as if that means it’s stricken from the minds of the jury so it won’t influence their decision. We have good reason to believe that that’s impossible—the jury’s brains have been primed with a piece of argumentation that the judge has recognized is unadmissible. It’s too late. At least, it has always seemed that way to me. What does the legal literature say about this?