Minimal Rationality and The Law of Evidence

For more than a century, one of the pillars upon which the law of evidence was thought to rest is that the primary (although by no means exclusive) objective of the law of evidence is to further accurate fact-finding by maximizing the rationality of the evidentiary process. The crux of this pillar is that the law of evidence increases rationality (and thereby increases accuracy) through admissibility rules that (1) require reliable evidence, and (2) behave paternalistically toward jurors and their cognitive abilities. This Article aims to supplant this pillar by showing that the law of evidence pursues minimal, not maximal, rationality, and leaves it to the adversarial process to produce accurate (or inaccurate) results. Our primary aim is to describe the law of evidence and the rationality norm that best explains the evidentiary proof process. Although we largely put aside normative debates about whether the law of evidence should be constructed differently, our analysis generates normative implications. First, it generates implications for evidence scholarship, both positive and normative, that mismodels or misdescribes the law of evidence as pursuing maximal rationality (or other strong conceptions of rationality). Second, because the adversarial process—rather than the law of evidence—is primarily responsible for furthering accurate fact-finding, our analysis provides further support for increasing access to evidence and resources for criminal defendants. The various mechanisms and procedural devices that are designed to protect criminal defendants from wrongful convictions—the burden of persuasion, the right to counsel, and confrontation and compulsory process rights, for example—only work effectively with access to information. This Article, while primarily contributing to the ongoing reconceptualization of the field of evidence, has potentially radical implications for the criminal process.