103 Iowa L. Rev. 1155 (2018)
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Abstract
The Federal Rules of Evidence purport to balance a legal tribunal’s search for the truth underlying a dispute with the tribunal’s ability to do so using fair and just procedures. Rule makers’ attempts to balance these competing interests have resulted in significant ambiguity—and maneuverability—within the Federal Rules of Evidence that cunning advocates can exploit to prove their case to the fact finder. Many legal scholars argue that advocates are left to their moral code and sense of fair play in deciding whether to avail themselves of these ambiguities within the Federal Rules of Evidence. This Article suggests that this approach can lead to unintended consequences.
This Article introduces the concept of the evidentiary trapdoor. Evidentiary trapdoors encompass instances under the Federal Rules of Evidence where the application of an evidentiary rule either contradicts the rule’s plain language or takes advantage of unintended ambiguities within the rule, based on the tacit assumption that the novel application of the Rule will increase the legal tribunal’s decisional accuracy. This Article relies on the psychological literature on legitimacy and moral decision making to argue that a legal tribunal’s use of trapdoor evidence has two perverse effects: (1) it lowers the public’s perceptions of the trial’s fairness; and (2) it causes the public to delegitimize the tribunal’s verdicts.
In support of these assertions, this Article reports the results of three original experiments. The experiments reveal (1) that the public perceives a legal tribunal’s decisional accuracy and its procedural fairness reciprocally, such that an increase in the former decreases the latter; and (2) the use of so-called “accuracy-enhancing” trapdoor evidence does not increase the perceived accuracy of the tribunal’s verdict, but instead contributes to lowered perceptions of the tribunal’s fairness and legitimacy. These findings have substantial implications for the future direction of evidence law, for the role of empirical research in legal policymaking, and for attorneys’ ground-level strategic decisions in litigation.