Not really, say two law professors. They argue in a Texas Law Review article that it’s time to rethink the centuries-old traditions of Western jurisprudence that have made witnesses the centerpiece of criminal and civil trials—and replace them with more dependable ways of arriving at the truth.
Witnesses are no longer key to arriving at the truth in modern trials and should only be used when no other evidence is available, argue two law professors.
In an article published in the Texas Law Review, Edward Cheng, of the Vanderbilt University Law School, and Alexander Nunn of the University of Arkansas School of Law, said it’s time to rethink the centuries-old traditions of Western jurisprudence that have made witnesses the centerpiece of criminal and civil trials.
Modern technology and practices can provide more authoritative “process” evidence, they wrote in the article, entitled “Beyond the Witness: Bringing A Process Perspective to Modern Evidence Law.”
“[The] witness-centered perspective is antiquated and counterproductive,” the professors wrote. “It is a deeply limited and ultimately distortive lens through which the legal system views the evidence available in the modern world.”
The authors said that the use of witnesses, a practice dating to the 12th century, emerged because there were few other ways for judges and juries to assess competing claims in trials. They used the example of a suit brought against an artisan who had made a defective piece of furniture.
A plaintiff might argue the artisan was negligent, and the artisan would then defend his work in court, bringing other witnesses to defend his judgment and his work.
But such competing assessments were crude and imperfect ways of discovering whether the artisan was truly responsible for the defective equipment, the professors wrote.
“In the modern world, particularly in commercial and technological contexts, systems and processes have replaced individual judgment,” wrote Cheng and Nunn wrote.
“Today, in a similar situation, the case would instead be brought against the entire production of the chair, rather than against a sole individual.
“One person was not solely responsible for the creation and production of a chair. The process by which the chair was created must be examined in court. One chair, one plaintiff and one artisan would no longer be the only parts of the case.”
Currently, both “process evidence” and witness evidence are given equal weight in court, but the authors say it’s time to develop a different way of collecting evidence, and a better legal framework for using it.
“Rather than compulsory process and cross-examination, process evidence may instead require enhanced discovery rules facilitating access to and testing of the process,” they explained.
Turning to the larger issue of trials in general, they wrote, “The focus of the legal system no longer should be on individuals and their testimony. After all, the reliability inquiry itself no longer depends on their actions or observations.”
Generally, process-based evidence is dependent on a process—design, manufacturing, production—rather than the conduct of an individual.
In some cases, discerning reliability of evidence comes from a witness, they conceded. But in other cases, it is arrived at from the process itself.
“We could learn about a bank deposit from the teller who accepted it, but it may make more sense to look at the computer database that recorded the transaction,” they wrote.
Process evidence, according to Cheng and Nunn, is more objective, standardized and mechanical. Because process evidence is collected differently, it should be analyzed differently.
In the latter part of their article, Cheng and Nunn argue “in favor of an expansion of the compulsory process and subpoena powers to allow litigants increased access to the underlying processes generating evidence.”
“For the legal system to focus on any individual witnesses is beside the point,” the article added. “Yes, one could call an employee to testify about [a company’s], but the key evidence is the policies themselves, not the employee’s testimony.”
The authors say the fixation with witnesses and how to assess their reliability has been “obsessed over” by legal experts.
But these legal arguments ultimately don’t address the key issue, namely that using the witness “framework” for jurisprudence is often an unreliable way of assessing responsibility or culpability.
They pointed out that ‘expert” witnesses were often employed just to provide a theatrical flourish.
They quoted a typical examination of photographic evidence in the courtroom goes as an example, from a court transcript:
Attorney: I’m going to show you Government’s Exhibit numbers 2 through 4. Take a look at those. Do you recognize those photographs?
Witness: I do.
Attorney: Do they fairly and accurately represent what you observed that day?
Attorney: Your Honor, we’d offer Government’s Exhibits 2, 3, and 4 into evidence.
The Court: Any objection?
Opposing Counsel: No objection.
Calling on the legal community to “let the genie out of the bottle” and eliminate “the awkward legal constructs that result when the law demands witnesses for everything,” the authors said witness evidence should be treated only as a last resort when other forms of evidence were unavailable.
“Why should the legal system treat both [process-based evidence and witness-based evidence] on an even playing field?” they asked.
“[…]Rather than preferring witnesses, the legal system should prefer processes, and only where process-based evidence is unavailable should courts settle for an in-person testimony.”
A complete copy of the article can be downloaded here.
This summary was prepared by TCR news intern Lauren Sonnenberg. Readers’ comments are welcome.