Dale A. Nance

The Weights of Evidence

Interest in the Keynesian concept of evidential weight has led to divergent views concerning the burden of proof in adjudication. It is argued that Keynes’s concept is properly engaged only in the context of one special kind of decision, the decision whether or not the evidence is ripe for a decision on the underlying merits, whether the latter decision is based on probability, relative plausibility, coherence or otherwise. As a general matter, this question of ripeness is appropriately assigned to the judiciary for resolution as part of the burden of production, rather than to the jury or other factfinder as part of the burden of persuasion.

Evidentiary Foul Play: The Roles of Judge and Jury in Responding to Evidence Tampering

For at least two centuries, Anglo-American courts have responded to a partys evidence tampering by allowing the opponent to argue to jurors that they should draw an adverse inference against the offending party in deciding the merits of the case. This essay argues that it is time that the use of such inferences be radically curtailed, not only because of the ambiguities and risks of prejudice that such inferences entail, but more importantly because they involve a confusion of roles in which the jury is enlisted to participate in the management of the pre-trial conduct of litigants. This management is properly the job of the judiciary, and there are more than adequate tools for this purpose in the form of discovery sanctions, such as issue preclusion, monetary awards, and dismissals or defaults.

Rethinking Confrontation After Crawford

A recent decision by the United States Supreme Court has substantially changed the formal interpretation of the Confrontation Clause. This essay argues that it is important to recognize the more fundamental change that the case represents, a change in the rationale lying behind the doctrine. Ultimately, this more fundamental change shifts the constitutional doctrine from a focus on preventing jury error to a focus on preventing prosecutorial abuse. Whether this laudable shift will be fully effectuated in the details of the doctrine remains to be seen.