An epistemological analysis of the use of reputation as evidence

Rules 405(a) and 608(a) of the Federal Rules of Evidence allow the use of testimony about a witness’s reputation to support or undermine his or her credibility in trial. This paper analyses the evidential weight of such testimony from the point of view of social epistemology and the theory of social networks. Together they provide the necessary elements to analyse how reputation is understood in this case, and to assess the epistemic foundation of a reputational attribution. The result of the analysis will be that reputational testimony is extremely weak from an epistemological point of view, and that in many cases there are more reliable substitutes that achieve a similar purpose. The obvious fix, in my view, is to eliminate the use of reputation testimony to support or undermine the credibility, honesty, chastity or peacefulness of a witness

The Liar’s Mark: Character and Forfeiture in Federal Rule of Evidence 609(a)(2)

Rule 609(a)(2) of the Federal Rules of Evidence is an outlier. The Rule mandates admission of impeaching evidence of a witness’s past convictions for crimes of dishonesty. It is the only place in the Rules where judges are denied their usual discretion to exclude evidence on the grounds that its admission would be more prejudicial than probative. This Note analyzes three assumptions underlying this unusual Rule: (1) that there is a coherently definable category of crimes of dishonesty, (2) that convictions for crimes of dishonesty are uniquely probative of a person’s character, and (3) that an assessment of moral character based on past convictions will be suitably predictive of a person’s reliability as a witness. These assumptions are false and so do not justify the mandatory admission of convictions under the Rule. The final Part of this Note argues that Rule 609(a)(2) is better understood as operating on an implicit principle of forfeiture. Recognizing this and modifying the structure of the Rule accordingly cures some of its current defects. But these revisions still leave something deeply concerning about Rule 609(a)(2). The logic of forfeiture substitutes a normative judgment about a particular class of people in place of an evidentiary judgment about the probative value of a certain kind of information. This Note concludes that this substitution is unprincipled and unjust, and that therefore Rule 609(a)(2) should be eliminated.

Making Rule 23 Ideal: Using a Multifactor Test to Evaluate the Admissibility of Evidence at Class Certification

Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible to obtain class certification. For potential defendants, the application of the standard is an important way to ensure that the certification process is fair. This Note examines the incentives underlying the push to apply the Daubert standard at class certification and the benefits and drawbacks associated with that proposal. It proposes a solution that balances the concerns of both plaintiffs and defendants by focusing on three factors: the obstacles to admissibility, the centrality of the evidence to certification, and the likelihood that evidence could evolve to an admissible state after full discovery. This standard could also be applied when admissibility concerns grounded in other provisions of the Federal Rules of Evidence are raised.

Cabining Judicial Discretion Over Forensic Evidence with a New Special Relevance Rule

Modern forensic evidence suffers from a number of flaws, including insufficient scientific grounding, exaggerated testimony, lack of uniform best practices, and an inefficacious standard for admission that regularly allows judges to admit scientifically unsound evidence. This Note discusses these problems, lays out the current landscape of forensic science reform, and suggests the addition of a new special relevance rule to the Federal Rules of Evidence (and similar rules in state evidence codes). This proposed rule would cabin judicial discretion to admit non-DNA forensic evidence by barring prosecutorial introduction of such evidence in criminal trials absent a competing defense expert or a high showing of scientific viability.