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Maybe I'm just feeling cranky, but I have some Christmas wishes for the law of evidence:
1. Stop using "narrative" to circumvent the need to establish relevance to a material fact in issue. And stop fudging the question of whether, & to what extent, evidence is actually probative of animus or motive by just reflexively lumping them together as narrativeanimusmotive.
2. Stop using "probative value" to mean umpteen different things. Sometimes it gauges the extent to which evidence, *if believed*, tends to make a material fact in issue more likely than not. Sometimes it involves an assessment of reliability and credibility.
And sometimes it requires us to assess the extent to which the trier of fact will need the evidence in order to make sense of other evidence.
Basically, I would like a suitably nuanced technical vocabulary that is consistently used by lawyers and judges.
Basically, I would like a suitably nuanced technical vocabulary that is consistently used by lawyers and judges.
3. Yes, evidence that undermines credibility is relevant to a fact in issue that has "secondary materiality". But the emphasis is on "secondary". Treat the circumstances under which evidence may be adduced on this basis *alone* as exceptional.
To a large extent, we do this already, but some greater clarity on this point would be welcome - since we are otherwise liable to (again) make it too easy to assume relevance.
4. Insist on greater precision from counsel w/r/t how and why evidence is relevant to a (primary) material fact in issue - and hold them to it. Craig emphasized this point in her work on sexual history evidence, but it should be a matter of concern in every context.
5. Fix lay opinion evidence. There are competing interpretations of Graat, depending on whether one endorses Sopinka, Lederman, & Bryant; or Paciocco & Stuesser. Pick a lane.
This may require, if P&S is the preferred option (as it probably should be), that courts be clearer about what it is that "ordinary people" in a pluralistic society can actually do.
This is a different exercise than articulating what the "reasonable person" would do, and entails different problems. But there we are.
6. Sort out, once and for all, when there needs to be evidence to buttress judicial intuitions about how people do and do not behave. I remarked on this the other day, but it bears repeating.
Conclusion: Much of this would demand greater intellectual rigor & precision from lawyers & judges. That poses its own problems. And there should of course be latitude for pro se litigants.
But much of our law of evidence is a mess. There needs to be some serious housekeeping.
But much of our law of evidence is a mess. There needs to be some serious housekeeping.
