Document Type
Article
Publication Date
1-2026
ISSN
0021-0552
Publisher
University of Iowa College of Law
Language
en-US
Abstract
Commentators largely agree that the Federal Rules of Evidence have problems. Expert testimony standards admit junk science. Impeachment rules chill defendant testimony. The hearsay regime defies consistent application and obstructs self-representation. The list goes on: Many rules fail to assist, or affirmatively thwart, jurors trying to make good decisions. Such shortcomings disproportionately harm those with the least power in the system, raising profound questions about whether the evidence code serves its statutory mandate—to promote truth and justice in court proceedings. In the face of widely recognized problems, the government body charged with managing the evidence code—the Advisory Committee on Evidence Rules—has been passive. Rather than exercising its authority to ensure that evidence rules fulfill their statutory purposes by rulemaking, it has focused on what we term rule-tending—treating the existing code as a fixed edifice needing only light maintenance.
The evidence committee is not the only government organ charged with managing regulations through authorities delegated by statute. Administrative agencies do that, too. This Article places evidence rule management within this larger government landscape, showing that the evidence committee’s statutorily delegated authority is comparable to that of agencies. Rule-tending, we argue, has left the evidence regime empirically untested, normatively adrift, and unaccountable both to the public it governs and to the statutes it implements. We suggest that practices historically developed in the administrative agency context would help. Increasing public participation, diversifying decision-makers, pursuing empirical evaluations, and articulating reasons grounded in statutory purposes would enhance both efficacy and accountability. And it would better align the rules with their statutory purposes of promoting truth and justice. The very fact of delegated authority, we argue, demands more than rule-tending—it requires rulemaking that is empirical, accountable, and purpose driven.
Recommended Citation
Anya Bernstein & Julia Simon-Kerr,
Keeping Evidence Real
,
111
Iowa Law Review
589
(2026).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4260
