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Balancing Fairness Efficiency And Policy

G. Alexander Nunn, Balancing Fairness Efficiency And Policy in Nunn on Evidence (2025), available at https://nunn.law/balancing-fairness-efficiency-and-policy. | View history

In our previous discussion (Section 1.2.1), we established that a fundamental aim of the law of evidence is the ascertainment of truth in the adjudicative process. Indeed, without a dedicated effort to determine facts accurately, the very legitimacy of our legal system would be called into question. However, as we delve deeper into the architecture of evidence law, it becomes clear that the pursuit of truth, while paramount, is not an absolute monarch. Instead, it operates within a constitutional monarchy, sharing power and sometimes yielding to other vital systemic values. This section, "Balancing Competing Values: Fairness, Efficiency, and Policy," explores this inherent and fascinating tension. We will examine how evidence law, in its theoretical framework, strives to accommodate a constellation of crucial interests beyond mere factual accuracy. Our focus here is conceptual – to understand the why and how of this balancing act at a foundational level, deferring the specific mechanics of individual rules to later chapters.

The Incomplete Ideal: Why Truth-Seeking Alone is Insufficient

Imagine a legal system singularly obsessed with unearthing every conceivable fact, regardless of the cost or consequence. While such a system might, in theory, approach a high degree of factual accuracy in some instances, it would likely be a system few of us would wish to live under. It could become invasive, unfair, crushingly slow, and indifferent to broader societal needs. The reality is that our legal system is a human institution, designed to serve a multifaceted society with a wide range of values. Therefore, evidence law is not simply a set of tools for discovering truth; it is a sophisticated regulatory scheme that mediates between the desire for accuracy and other essential principles that define a just and well-functioning legal order. These competing values can be broadly categorized into considerations of fairness, concerns of efficiency, and the promotion of extrinsic policy objectives. Understanding this delicate balance is key to understanding the very nature and purpose of evidence law.

Fairness: The Moral Compass of Adjudication

Perhaps the most significant counterweight to an unbridled pursuit of truth is the imperative of fairness. A factually accurate outcome achieved through unfair means is a pyrrhic victory for justice. Evidence law, therefore, embeds numerous safeguards designed to ensure that the process of proof is not only aimed at truth but is also equitable and respectful of individual dignity and rights.

One of the cornerstones of fairness is the protection of individual rights. Our legal tradition, particularly in the Anglo-American sphere, places a high premium on rights such as privacy, the presumption of innocence, the right to counsel, and the right against self-incrimination. An aggressive, truth-at-all-costs approach could easily trample these fundamental protections. For example, evidence, however probative, might be excluded if its acquisition involved a serious violation of constitutional rights, reflecting a judgment that upholding those rights is, in that instance, a more critical systemic value than admitting the particular piece of evidence.

Another vital aspect of fairness is the prevention of prejudice and bias. Human beings, including jurors and judges, are susceptible to cognitive biases and emotional reactions that can cloud judgment. Certain types of evidence, while potentially relevant, may carry an unacceptable risk of inflaming these prejudices, leading the trier of fact to decide a case on an improper basis – perhaps based on dislike for a party or revulsion at certain information – rather than on a rational assessment of the facts. Evidence law attempts to screen out such unduly prejudicial information to ensure that verdicts are, as much as possible, products of reasoned deliberation rather than emotional whim or ingrained bias. This is particularly crucial in preventing discriminatory outcomes based on stereotypes or irrelevant aspects of a litigant's character or background.

Fairness also demands ensuring equal treatment and due process. The "rules of the game" must be applied consistently to all parties, creating a level playing field. This involves ensuring that each side has a fair opportunity to present their case and challenge the evidence of their opponent. Predictable, uniformly applied evidentiary rules contribute to this sense of procedural justice, which is indispensable for the perceived legitimacy of legal outcomes. Arbitrary evidentiary rulings, even if intended to get at the "truth" in a particular instance, can undermine faith in the system as a whole.

Finally, fairness requires avoiding the arbitrary or discriminatory application of rules. The theoretical framework of evidence law aims to provide guiding principles that curb unfettered judicial discretion, promoting consistency and predictability. While judges necessarily exercise some discretion, the rules aim to structure that discretion to prevent outcomes that appear random, biased, or grounded in personal predilection rather than established legal principle.

Efficiency: The Pragmatic Demands of a Working System

Beyond the moral and ethical considerations of fairness, evidence law must also contend with the pragmatic realities of administering a complex legal system. Unlimited pursuit of every conceivable piece of evidence, regardless of its marginal utility, would lead to a system bogged down in interminable proceedings and unsustainable costs. Thus, efficiency concerns play a crucial role in shaping the rules of evidence.

Judicial economy is a primary driver. Courts operate with finite resources – limited time, personnel, and budgets. Evidentiary rules that streamline proceedings, such as those excluding cumulative evidence (where multiple pieces of evidence prove the same minor point) or evidence that is only remotely relevant, help to conserve these precious judicial resources. The goal is to resolve disputes in a reasonably timely and cost-effective manner, ensuring that the courts can handle their caseloads effectively.

This ties directly to resource allocation. Litigation can be enormously expensive for the parties involved and for the public purse. Evidence law attempts to manage these costs by, for example, setting boundaries on the scope of discovery or excluding evidence if its probative value is substantially outweighed by the cost and effort required to present it.

Time management is another critical efficiency concern. The old adage "justice delayed is justice denied" holds considerable truth. Lengthy, drawn-out legal battles can be emotionally and financially ruinous for litigants and can erode public confidence in the system's ability to deliver timely resolutions. Rules that expedite trials and prevent unnecessary consumption of court time, such as those allowing for stipulations to undisputed facts or taking judicial notice of commonly known facts, serve this interest.

Ultimately, these efficiency considerations coalesce around the aim of preventing unnecessary delay or expense. The rules of evidence are designed, in part, to ensure that the adjudicative process moves forward with reasonable dispatch and without imposing undue financial burdens on the participants or the system itself. An endless quest for every last shred of information, however tangentially related, is a luxury the system cannot afford if it is to provide accessible justice.

Extrinsic Policy Objectives: Serving Broader Societal Goals

Evidence law does not operate in a societal vacuum. It also serves to advance certain "extrinsic" policy objectives – goals that lie outside the courtroom and the immediate dispute but are considered beneficial for society as a whole. In these instances, the law may choose to exclude relevant evidence not primarily for fairness or efficiency reasons pertaining to the trial itself, but to encourage or protect certain behaviors and relationships in the wider world.

One category involves encouraging beneficial conduct. For example, rules that exclude evidence of subsequent remedial measures (e.g., a company repairing a staircase after an accident) are designed to encourage individuals and entities to take steps to improve safety without fearing that these very actions will be used against them as an admission of prior negligence. Similarly, rules protecting communications made during settlement negotiations aim to foster an environment where parties feel free to speak candidly in an effort to resolve their disputes without resorting to a full trial, thereby promoting private dispute resolution and conserving judicial resources. Offering to pay medical expenses after an injury is another area where evidentiary exclusions encourage humanitarian gestures.

Another significant set of extrinsic policies involves protecting important relationships. Society values certain confidential relationships and believes that fostering trust and open communication within them is crucial. The most well-known examples are privileges, such as the attorney-client privilege, which protects communications between lawyers and their clients to ensure effective legal representation, or spousal privileges, which aim to safeguard the sanctity and privacy of marital bonds. The doctor-patient privilege and clergy-penitent privilege serve similar functions in their respective spheres. The judgment here is that the societal benefit derived from protecting these relationships outweighs the cost of potentially losing relevant evidence in particular cases.

Finally, evidence law can also be instrumental in promoting broader societal goals beyond the immediate case. For instance, rules concerning the admissibility of scientific evidence may evolve to reflect a societal commitment to basing legal decisions on reliable and validated methodologies. The exclusion of evidence obtained through egregious official misconduct can serve a deterrent function, aiming to ensure lawful behavior by state actors and maintain the integrity of the governmental process. These rules reflect a vision of the legal system as an institution that not only resolves individual disputes but also shapes and reinforces societal norms and values.

The Conceptual Balancing Act: Why Pure Truth-Seeking is Neither Possible Nor Desirable

It should now be apparent that the rules of evidence are not a monolithic code designed solely for the purpose of unearthing truth. Instead, they represent a complex, dynamic, and often delicate balancing act. The law of evidence implicitly, and sometimes explicitly, weighs the probative value of potential evidence—its ability to help prove a fact in issue—against the potential harms that its admission might cause to fairness, efficiency, or extrinsic policy objectives.

Why is pure, unadulterated truth-seeking rejected as the sole guiding principle? There are several profound reasons.

First, epistemic limitations make absolute truth an elusive target in the context of past events. Evidence is often incomplete, memories are fallible, witnesses can be mistaken or untruthful, and physical evidence can be ambiguous. The legal system must operate within these inherent human and practical constraints on knowing "the whole truth and nothing but the truth."

Second, the costs and practicalities of an exhaustive search for every conceivable piece of information in every case would be simply prohibitive. Such an approach would cripple the judicial system, making it inaccessible and intolerably slow. A workable system requires pragmatic compromises.

Third, and perhaps most importantly, an unrestrained quest for truth would inevitably clash with fundamental human and societal values. A system that routinely invaded privacy, disregarded individual rights, undermined crucial professional and personal relationships, or allowed prejudice to reign, all in the name of finding "more truth," would be a system that most would find unjust and oppressive. Society has made a collective judgment that some values, such as due process, the protection of intimate relationships, and the discouragement of official misconduct, are sufficiently important to warrant the exclusion of even relevant, reliable evidence in certain circumstances.

The Federal Rules of Evidence themselves articulate this balancing act, stating in Rule 102 that the rules should be construed "to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination." This language explicitly acknowledges that ascertaining truth is an "end," but one that must be achieved through means that are fair, efficient, and promote a just overall outcome.

Therefore, the theoretical framework of evidence law is built upon a foundational understanding that while truth is a vital objective, it must be pursued in a manner that respects and harmonizes with this wider constellation of indispensable systemic values. The rules of evidence are the instruments through which this ongoing, context-sensitive balancing is performed, reflecting a mature legal system's commitment not just to factual accuracy, but to a broader and more encompassing vision of justice. Pure truth-seeking is not only impossible to achieve in practice; it is undesirable in principle because it would require sacrificing other values that are equally, if not more, essential to a free and fair society. This intricate balance is not a flaw in the system, but rather its sophisticated strength, reflecting the complex tapestry of interests that our legal order strives to uphold.

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