Some notes on Beyond the Witness: Bringing A Process Perspective to Modern Evidence Law (Edward K Cheng & G Alexander Nunn)

I recently came across Ed Cheng and Alex Nunn’s recent paper “Beyond the Witness: Bringing A Process Perspective to Modern Evidence Law“ (forthcoming in Texas Law Review) and thought it was worth a few notes. It also converges with a lot of ideas I’ve been thinking about lately and really helped clarify my thinking.

Cheng and Nunn lay out a convincing argument that the witness-centric model is outdated and inefficient. Unlike like when the trial was invented, a great deal of evidence does not originate with human witnesses, but processes (e.g., software, video recording, business practices, etc).

In response to the rise of process, Cheng and Nunn suggest changes to several evidence rules and procedures.

For example, they would reframe the subpoena to focus on process, forcing parties using process to disclose it for testing. Although they do not discuss Rebecca Wexler’s work on claiming trade secrets over criminal justice-related algorithms, I have to think Cheng and Nunn’s model would demand disclosure in such cases. This can be seen as a new focus on transparency of procedure:

Courts cannot put machines, business processes, or other standardized systems under oath, observe their demeanor, or cross-examine them. But courts can construct new mechanisms to achieve their functional equivalents. New rules can make the processes that underlie process-based evidence more transparent to the jury, provide opportunities for an opposing party to attack them, and give guidance on how to assess their reliability.

Similarly, they would rethink the Confrontation Clause to focus on process when the evidence is mainly objective (versus, for instance, the subjective judgment of a forensic examiner who should be personally examined).

Finally, they offer ways to test the credibility of procedure: testing, transparency, and objectivity. I was especially interested in transparency:

Reliability often comes from transparency.218 A process whose internal workings and outcomes are publicly observed and subject to criticism will generally be more robust and accurate than one closely guarded. This preference for transparency extends well beyond the enhanced discovery rules proposed earlier. Enhanced discovery—that is, access and disclosure by the opposing party within the narrow confines of litigation—is the bare minimum demanded to ensure the workings of the adversarial system. Yet enhanced discovery alone is far from ideal for ensuring reliability. By contrast, a process in the public domain is subject to perpetual access and testing by any interested party, making it far more likely to be reliable.

Overall, I thought this was an excellent paper with some well-thought out solutions.

My main quibble is that I think Cheng and Nunn portray an overly rosy view of science. In particular, in their framework, they are happy to defer to the structures of science. As we know from the reproducibility crisis, however, scientific process hasn’t always worked so well. We must delve into the specifics of how the scientific structures were employed. Moreover, they seem to assume that scientists typically disclose everything when publishing.

These two quotes stood out to me as a little off:

Since information on the publication process is readily obtainable (and in some cases judicially noticeable), scientific articles and treatises are easily admissible. A jury can then assess the evidentiary weight of a treatise by considering the reliability of the publication process.

and:

While this system of editing necessarily invokes human actors, it is primarily process-based evidence. Peer review editors in the hard sciences follow pre-determined criteria when scrutinizing articles. Each citation and assertion will be analyzed for accuracy and conformance to known scientific positions. The reliability of a scientific article, then, stems primarily for the quality assurances provided by a journal rather than the ipse dixit of a particular author.