research topics on law of evidence

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Evidence Research Guide

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Primary Law Sources: Federal Rules of Evidence

The Federal Rules of Evidence themselves are available from a variety of sources, both in print and online.

For a list of sources, in addition to resources for  cases and legislative history  research, refer to our  Federal Court Rules Research Guide .

Electronic Resource Collections

• Evidence Texts & Treatises on Westlaw
• Evidence Resources on Lexis Advance Includes both primary and secondary materials.

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About This Guide

This guide is focused on the Federal Rules of Evidence and related material.  We recommend starting your research with secondary sources such as evidence law texts & treatises or legal encyclopedias . 

For information on state rules of evidence , please refer to the "Statutes and Legislation" page of our research guide for  any particular state ; state rules of evidence will generally be found in that state's statutory code.

The following are some good places to begin your research, especially if you are new to this area of law.  For a list of treatises and links to treatise collections, see the Texts, Treatises, & In-Depth Resources  page of this guide.

If you are not familiar with what secondary sources are, or if you need to begin with a more basic secondary source that can provide you with an introductory overview of your topic (such as a  legal encyclopedia ) you may want to begin with our  Secondary Sources Research Guide  or our  Secondary Sources Tutorial .

• Evidence: An Overview (Cornell Legal Information Institute) Provides a basic introductory overview of evidence including links to related statutes, judicial decisions, conventions and treaties, and key Internet sources.
• Federal Practice and Procedure (Wright & Miller) A multi-volume treatise covering all aspects of federal civil, criminal and appellate procedure, including rules of procedure and evidence. It provides extensive rule-by-rule discussion, with copious references to cases and other materials. It is also available on Westlaw .

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Secondary sources research tutorial.

Includes videos covering treatises, law reviews, encyclopedias, American Law Reports (ALR), Restatements, and news sources.

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Updated 8/21 (MK) Updated 1/23 (MK)

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• Last Updated: May 9, 2023 10:40 AM
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Evidence Overview

Books & articles, rules, statutes & cases, evidence blogs & news, getting help, evidence: summaries and explanations.

Study Tools

Audio casefiles.

Download recordings of cases commonly read in first and second year courses.

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Test your knowledge!

CALI provides access to an extensive collection of interactive, computer-based lessons designed to augment traditional law school instruction. Use the lessons to supplement your studies and to review specific concepts.

• CALI Lessons by Casebook
• CALI Lessons on Evidence
• CALI Authorization Code & Registration Harvard Law School access only. First time users: please register using the HLSL CALI Authorization code.

Wex is a free legal dictionary and encyclopedia sponsored and hosted by the Legal Information Institute at the Cornell Law School . Wex entries contain a definition, subject overview and useful links. All entries are collaboratively created and professionally reviewed

• Evidence Overview ([LII] Wex)

Evidence in Depth

Go deeper with these leading works on evidence or search HOLLIS for books and articles. 

Search HOLLIS

Treatises on evidence.

• Weinstein's federal evidence (Lexis login) by McLaughlin, Weinstein, Berger Call Number: Harvard Depository KF8935 W3912x Publication Date: 1997- Print updated through 2007. Online via LexisAdvance
• Federal Practice and Procedure (Westlaw login) by Charles A. Wright Call Number: Law School KF 8840 .W68 Publication Date: 1969- This leading treatise on federal practice has several volumes on the Federal Rules of Evidence

The New Wigmore

Find articles & working papers.

Search these law databases or try Google scholar for more articles

• Westlaw Journals & Law Reviews Journals and Law Reviews contains full text documents from law reviews and CLE materials from U.S. and Canadian based publications. Coverage varies by publication with most going back to the 1980s or 1990s.

• HeinOnline Law Journal Library more... less... The HeinOnline Law Journal Library provides online, full-text access to a rapidly growing collection of law reviews and journals. Coverage begins with a journal's first volume but does not usually include its most recent volumes. HeinOnline's ultimate goal is to expand its collection to include all indexed legal periodicals from their first issue to the present. ## ##HeinOnline provides access to a legal periodical's complete contents, including articles, essays, book reviews, notices, advertisements and all other materials that appeared in its original print version. Each legal periodical page is represented in both high quality image and OCR text formats. As a cost saving measure, HeinOnline does not review the OCR scanned text for errors.

Working Papers

• Browse Recent Evidence Articles on SSRN See the latest papers on evidence uploaded by legal scholars.
• Recent articles on Federal Courts and Jurisdiction at SSRN
• Recent Articles on the Subject "Legal Procedure, the Legal System and Illegal Behavior" from SSRN
• Digital access to scholarship at Harvard (DASH) more... less... The DASH digital repository system captures, stores, indexes, preserves, and distributes digital research material.
• bepress bepress is another academic repository that contains both published and working papers.

Federal Rules

• Federal Rules of Evidence (Cornell LII)
• Federal Rules of Evidence (House Judiciary Documents) Printed for the House Judiciary Committee
• Federal Rules of Evidence (Westlaw) Includes history, annotations, notes of decisions
• Federal Rules of Evidence (West) Law School KF8931.7 .U64 Current version in stacks

State Rules & Statutes

• Links to State Evidence Codes (Cornell LII)
• Federal Rules of Evidence and Comparable State Rules (Gallagher Law Library, University of Washington Law)

Evidence Case Law

• Listen to Evidence Cases on AudioCaseFiles Download mp3s, listen online, view excerpts from major evidence cases.
• West Key Number 157: Evidence
• Search for Cases on Evidence in LexisAdvance Filter your search by Practice Area & Topic>Evidence

Evidence Prof Blog

Evidence: selected websites.

• Federal Judicial Rulemaking "[T]he federal judiciary's web site on the federal rules of practice, procedure, and evidence.This site provides access to the national and local rules currently in effect in the federal courts, as well as background information on the federal rules and the rulemaking process."
• The Evidence Project Proposed revisions to the Federal Rules of Evidence
• Zimmerman's Research Guide to the Federal Rules of Evidence

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Forum response to Professor Chesney's Comment

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No Appetite for Change: The Supreme Court Buttresses the State Secrets Privilege, Twice

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Privacy as Privilege: The Stored Communications Act and Internet Evidence

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State v. Andrews

Supreme Court of New Jersey Holds that Compelled Disclosure of Defendant’s iPhone Passcodes Does Not Violate the Self-Incrimination Clause.

Plummer v. University of Houston

Fifth Circuit Holds that Due Process Standards May Be Lowered in the Presence of “Overwhelming” Video and Photographic Evidence of Guilt.

Haskins v. 3M Co.

District of South Carolina Holds the Every Exposure Theory Insufficient to Demonstrate Specific Causation Even if Legal Conclusions Are Scientifically Sound.

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Article Contents

1. philosophical treatment: ‘you get an’ology, you’re a scientist’ 1, 2. structural taxonomy: the disciplinary ins and outs, 3. epistemology rules, 4. looking for law, 5. arguments, reasons and proof, 6. more institutional bias, 7. concluding criticism.

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Theorising Evidence Law †

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Paul Roberts, Theorising Evidence Law, Oxford Journal of Legal Studies , Volume 43, Issue 3, Autumn 2023, Pages 629–649, https://doi.org/10.1093/ojls/gqad007

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What does it mean for a specialist department of legal studies, such as the Law of Evidence, to have, or to acquire, ‘philosophical foundations’? In what sense are the theoretical foundations of procedural scholarship and teaching distinctively or uniquely philosophical ? The publication of Philosophical Foundations of Evidence Law (OUP, 2021), edited by Christian Dahlman, Alex Stein and Giovanni Tuzet, presents a valuable opportunity to reflect on these existential questions of disciplinary constitution, methodology and design. This review article critically examines the volume’s idiosyncratic selection of topics, structural taxonomy, epistemological priorities, and enigmatic thesis that modern evidence law is turning from rules to reasons as its organising intellectual framework. Whilst the volume is impressively interdisciplinary and cosmopolitan in authorship and outlook, some doubts are expressed about its implicit US orientation, limited engagement with institutional or doctrinal details, and marginalisation of normative criminal jurisprudence.

To the extent that philosophical theorising is a mark of disciplinary sophistication, self-confidence and growing maturity, Evidence specialists should welcome the appearance of Philosophical Foundations of Evidence Law (PFoEL), edited by Christian Dahlman, Alex Stein and Giovanni Tuzet. This is, by my count, the nineteenth instalment of OUP’s Philosophical Foundations of Law series, published since 2009, and already elevating topics considerably newer and more niche than the Law of Evidence to its pantheon of philosophical self-consciousness. 2 Let us not be churlish: late is better than never.

The series ‘aims to develop work at the intersection of legal philosophy and doctrinal law … provid[ing] a roadmap of current philosophical work in the field to lawyers and philosophers looking for high quality new work and … a stimulus for further research’. The editors explain in their—regrettably brief—Introduction that ‘The principal idea of this project was to assemble and present the major philosophical and interdisciplinary insights that define evidence theory, as related to law’. 3 Any aspiration to define must confront terminological nuances that are more than merely semantic. ‘Evidence theory’, on any competent definition, is plainly not isomorphic with substantive evidence law, nor does it replicate that slice of common law education conventionally styled Law of Evidence. Scholars conceptualising ‘evidence and proof’ move expansively tend to regard fixation on ‘law’ as unhelpfully narrow or distracting. 4 The uses—and abuses—of evidence in legal contexts is only a small, institutionally differentiated and somewhat specialised department of the social uses of evidence (aka ‘data’ or ‘information’) more generally. 5 Evidence Law in the classroom can be a ‘multidisciplinary subject’ in ways that evidence law in litigation practice cannot, indeed should not, be. 6

The editors’ reference to ‘philosophical and interdisciplinary insights’ implies, correctly in my view, both that some philosophising is internal to the discipline of law (and thus not strictly inter disciplinary) and that some salient interdisciplinary insights are not necessarily philosophical. Threshold questions that may play on Evidence scholars’ minds include: how is the ‘philosophy of evidence law’ related to ‘evidence theory’, and what can either or both contribute to the prosaic activities of analysing, criticising and applying evidence law in academic scholarship, university teaching and legal practice? The editors situate their project both temporally and intellectually as a continuation of 1980s’ 7 New Evidence Scholarship, 8 prior to which ‘Evidence theory as related to law stayed mostly dormant’. 9 Dormant is apt, because the New Evidence Scholarship was partly a revivalist rediscovery of older programmatic texts. 10 Plausibly enough, the editors single out Twining’s Theories of Evidence 11 and a Boston University Law Review symposium on ‘Probability and Inference in the Law of Evidence’ 12 as watershed moments in Evidence law theory’s evolution: ‘These publications have irreversibly changed the direction of the study of evidence by shifting evidence scholars’ focus from rules to reasons.’ 13 This is an intriguing but largely unelaborated claim, which could only be vindicated (or not) by individual chapters in the volume. 14

The proposition that modern evidence law has become progressively less rule-focused resonates with experience in England and Wales: some old evidentiary rules have been abolished; others have been reformed in ways that afford more latitude to general principles and judicial discretion in their application; still other norms are not evidentiary ‘rules’ in the traditional legal sense. 15 Whether or how the pivot away from rules has been accompanied by a newfound interest in ‘reasons’ as an organising intellectual framework is harder to judge. Notwithstanding scattered signposts in specialist literature, 16 one might suppose that traditional concepts such as ‘fact-finding’, ‘inference’, ‘proof’, ‘litigation’ or ‘legal process’ remain more intuitive and intelligible to legal scholars. According to the editors, ‘The shift from rules to reasons was transformative along two dimensions: interdisciplinarity and internationalization’:

The realization that reasons moving the factfinding process forward are antecedent to, and consequently more important than, evidentiary rules has opened up new paths of inquiry that connected adjudicative factfinding to epistemology, mathematics, economics, psychology, sociology, political morality, and linguistics and led to further and richer explorations of how theories of probability and induction affect the understanding and reform of the law of evidence. The primacy of reasons has also created a sizable common ground for theorizing for evidence scholars from different countries. With a focus on reasons rather than rules, the differences between factfinding in the more regulated Anglo-American systems vis-à-vis the freer European systems—once understood as dramatic—became less important. 17

That a landmark publication written in English should be edited by a Swede, an Israeli and an Italian is a powerful testament to Evidence scholarship’s cosmopolitan aspirations. The volume’s contributors are ‘spread across three continents and domiciled in twelve different countries’, 18 and include numerous voices from beyond the common law orbit. Nonetheless, a third of the 32 contributors is US-based; plus Alex Stein taught in US law schools for 20 years before being appointed to the Israeli Supreme Court. This geographical concentration intimates a version of anglophone Evidence theory skewed towards Anglo-American Evidence theory, with a pronounced New World accent.

After its terse Introduction, PFoEL comprises 26 chapters divided into seven parts, each containing between two and six chapters. The overall page count is 417, bulky for a monograph but relatively slim for a ‘handbook’-style Cook’s Tour of disciplinary highlights. Part I has four chapters addressing ‘Evidence, Truth, and Knowledge’. Part II, on ‘Law and Factfinding’, is the longest subdivision, numbering six chapters. Part III contains three essays on ‘Evidence, Language, and Argumentation’, linking directly into Part IV’s trio of chapters on ‘Evidence and Explanation’. Part V moves the discussion on to ‘Evidence and Probability’, with four entries, followed by the shortest subdivision, Part VI, comprising a pair of essays on ‘Proof Paradoxes’. Finally, Part VII returns to somewhat more tangible practical concerns with four chapters on the theme of ‘Biases and Epistemic Injustice’. The rationale for this selection and taxonomic arrangement are not always readily apparent. The chapter by Lena Wahlberg and Christian Dahlman on ‘The Role of the Expert Witness’, for example, concludes Part I’s epistemological discussion but is largely an exercise in institutional jurisprudence, 19 supposedly the topic of Part II. Then again, ‘Law and Factfinding’ is so generalised that virtually any chapter in the book could plausibly appear there. Why is Part IV framed in terms of ‘Explanation’ rather than ‘Proof’? Does this terminology reflect the disciplinary assumptions of argumentation theorists in preference to concepts more familiar to lawyers and legal practice? Forensic probability is undeniably prominent in modern scholarship and legal practice, but the space it occupies in this volume feels indulgent. Affording ‘Paradoxes of Proof’ its own—albeit short—part seems positively eccentric, when these puzzles have previously attracted minute dissection for dubious explanatory profit. 20

Evidence teachers might be puzzled by some notable absences. Only one of the seven parts expressly mentions ‘law’ (or any related juridical concept), and most of the material in this part is actually concerned with forensic process and the evaluation of evidence rather than addressing normative, doctrinal or jurisprudential questions. With a handful of exceptions, 21 individual chapters largely eschew common law textbook staples. There is nothing substantial on presumptions, character evidence, witness competence, testimonial privileges, public interest immunity, rape shield, special measures for vulnerable or intimidated witnesses, memory refreshing, judicial notice, previous judgments as evidence, fair trials, confessions, privilege against self-incrimination, eyewitness identification evidence or corroboration, and little discussion of broader procedural or institutional contexts. Gabriel Broughton and Brian Leiter in their chapter caution that ‘accurate adjudication depends on more than evidence law. It depends, for example, on civil and criminal procedure … The study of evidence law thus falls into place as one component of the broader project of studying adjudication ’. 22 Contributors across the volume freely help themselves to illustrations and examples drawn from litigation process—typically concerning contested trials—so it cannot be said that the editors’ or authors’ conceptions of ‘evidence’ or the disciplinary field of ‘Evidence’ systematically exclude ‘procedure’. Those who like to credit Bentham as the father of modern Evidence studies 23 might be well advised to follow his lead in conceptualising judicial evidence as a subpart of legal procedure, inviting further reflection on nuances of institutional practices and traditions.

Rather than the traditional textbook fare, chapter titles serve up ‘cost–benefit analysis’, ‘scenario theory’, ‘reference classes’, ‘Bayesianism’, ‘naked statistical evidence’, ‘de-biasing’, ‘epistemic injustice’ and ‘the problem of the prior’. Unless these choices are completely arbitrary or idiosyncratic, they should be related to disciplinary objectives—which require articulation and defence. Assuming some general relation between Evidence theory and Evidence Law/evidence law, such that the former is, in some sense (philosophical or more broadly theoretical) foundational for the latter, Evidence scholars and teachers are entitled to ask how these connections are being forged. 24 Bluntly, if theorists’ analyses and solutions are mainly concerned with addressing theorists’ problems, why should that theoretical activity exert any claim on the time and attention of legal practitioners or (doctrinal) evidence scholars? In the absence of more explicit editorial elucidation, initial puzzlement is predictable and some potential readers’ motivation might expire before enlightenment strikes.

Part I trumpets the primacy of epistemological concerns. First up, Hock Lai Ho’s precise and considered essay on ‘Evidence and Truth’ argues that trials aim at ‘truth’ in the ordinary sense, dispensing with adjectival qualifiers such as ‘legal truth’, ‘formal truth’ or ‘procedural truth’ as unhelpful. Although ‘the trial is vastly different from a scientific or historical inquiry’, 25 nonetheless, Ho insists, ‘adjudication of factual disputes, which is the definitive business of the trial, is aimed at ascertaining the truth’. 26 In the following chapter, Gabriel Broughton and Brian Leiter present the case for ‘The Naturalized Epistemology Approach to Evidence’, which takes truth-finding goals for granted and sets out to test existing institutional performance employing empirical social science research methods. For example, psychologists conduct mock jury studies to interrogate evidentiary doctrines, identify practical shortcomings and propose institutional reforms to enhance evidence law’s ‘veritistic’ (truth-conducive) qualities. Advocating scientific investigation over normative theorists’ armchair speculation, Broughton and Leiter insist that—sometimes exaggerated—problems of ecological validity and other methodological limitations can, in general, be overcome through superior research designs. Their own illustrations of naturalised approaches to eyewitness testimony and character evidence are thoughtful and modestly circumspect in their recommendations. The discussion, however, proceeds on the footing that evidence law means the US Federal Rules of Evidence, and does not seem to have any specifically philosophical content. Charitably, the point is that philosophical analysis is required to clarify the concepts employed in framing empirical inquiries, 27 though this is not expressly stated. 28

In ‘Proven Facts, Beliefs, and Reasoned Verdicts’, Jordi Ferrer takes aim at the ‘subjectivist’ conception of factfinder belief. His reading of American legal sources leads him to conclude that common lawyers’ probabilistic conceptions of standards of proof are no less subjectivist than the classical intime conviction prevalent in modern continental European legal systems. Subjectivism in decision standards is bad epistemology, 29 and moreover, Ferrer argues, it is incompatible with giving reasons for adjudicative determinations as required by procedural due process and (European) human rights law. This chapter vindicates the editors’ promise of an Evidence (theory) scholarship invigorated by comparative jurisprudence, and does more than most to illuminate the somewhat enigmatic claim that Evidence law has shifted, or should shift, its primary focus from rules to reasons. Ferrer’s central argument is restricted to adjudicative contexts, such as civil litigation, in which the duty to give reasons prevails, and therefore does not encompass criminal jury trials in England and Wales. Ferrer ventures that ‘in English-speaking countries … the current discussion is not so much about whether or not reasons should be given for decisions as about how far this duty extends’. 30 Mandating juries to deliver reasoned verdicts is an interesting thought experiment with credible proponents, 31 but there are telling grounds for scepticism 32 and no proximate likelihood of reform. Whilst Ferrer tends to assimilate ‘English-speaking literature’ to US jurisprudence and commentary, the standard of proof now officially endorsed in English criminal trials is not even superficially probabilistic. 33 Moreover, it is difficult to see how an entity like a jury, charged with rendering its collective decision, 34 could have ‘subjective beliefs’ akin to an individual mind.

Wahlberg and Dahlman’s essay on ‘The Role of the Expert Witness’ completes Part I’s quartet. Cutting through abstruse theoretical controversies, it engages directly with the epistemological credentials of institutional practices. Legal scholars and practitioners will already know that expert witnesses should assist the factfinder, stick to the question(s) assigned and avoid expressing views on either questions of law or ultimate issues of fact. 35 Interdisciplinary conversation works in both (or multiple) directions, however, and these juridical axioms may be less widely appreciated by expert witnesses and other non-lawyers. Operating within a broadly ‘Bayesian’ intellectual framework, Wahlberg and Dahlman contend that ‘The role of the expert witness in the evaluation of evidence is limited to how strongly the evidence supports the hypothesis … To speak on the likelihood ratio and be silent on the posterior probability’. 36 Accepting (as one should) that Bayesianism is logically sound, practical jurisprudence is always mediated by institutional realities, calling for granular engagement with particular legal jurisdictions and regulatory structures. For example, there is at least a fighting chance of trying to explain to professional judges why they should not confuse the probability of the evidence assuming the truth of the hypothesis (assessing ‘weight of evidence’, as expressed by the likelihood ratio) 37 with the probability of the hypothesis in light of the evidence (the disputed facts in the litigation), 38 but there is virtually no chance of trying to explain this to a lay jury during a contested criminal trial. 39 Lay factfinders must be insulated from illegitimately ‘transposing the conditional’ 40 by other procedural safeguards. Lurking complexities are magnified by comparative lenses, 41 and cannot always be resolved simply by appealing to general (epistemic) principles.

With epistemology as its guiding principle and method, Evidence law theory can be simultaneously philosophical, interdisciplinary and cosmopolitan, but this methodological polymorphism comes at a price. Common law orthodoxy, as reflected in successive editions of Cross on Evidence and the US Federal Rules of Evidence (FRE), presupposes a ‘trans-substantive’ epistemic disciplinary foundation, but modern English law does not. 42 Rather, criminal procedure and evidence in England and Wales is effectively a different disciplinary specialism to civil procedure, 43 and the doctrinal bridge which traditionally linked the two parts is increasingly slender and rickety. When epistemology supplies the primary analytical lens and organising taxonomy, the gap between Evidence Law theorising in the classroom and applied evidence law in the courtroom almost inevitably widens. This fissure risks alienating law teachers aiming to inculcate professional skills and provide students with a sociologically realistic picture of litigation practice in their own jurisdiction. For all that comparative studies are invariably enriching, theorising indexed to local doctrine will, in a world of opportunity costs, predictably trump theories adapted to foreign law and practice.

The orthodox ‘Thayerite’ conception of evidence law has long been criticised for its obsession with questions of admissibility, or ‘exclusionary rules’, to the neglect of broader issues of relevancy, inference, proof and fact-finding. 44 Featuring only two chapters (out of 26) taking exclusionary rules as their primary theme, PFoEL might be suspected of a rather dramatic over-correction.

‘Jeremy Bentham, one of history’s great haters, hated many things, and among them was the law of evidence’, 45 writes Frederick Schauer in his entertaining chapter on ‘The Role of Rules in the Law of Evidence’. Schauer poses the question why, despite the apparent common sense of Bentham’s ‘free proof’ antinomianism, ‘the law of evidence … remains substantially an affair of rules’. 46 Schauer is unpersuaded by standard rationalisations implying that jurors cannot be trusted with problematic evidence. 47 After all, professional judges may be no less susceptible to rationality lapses and cognitive biases, potentially inverting the Benthamite logic: perhaps we need more exclusionary rules to neutralise the infirmities of judicial reasoning. More fundamentally, Schauer argues, untrammelled official discretion in adjudication is incompatible with the rule of law, 48 and this foundational normative commitment should shift the burden of argument to modern-day proponents of Bentham’s ‘natural system’ of common sense inference. To the contrary, ‘perhaps it is the free proof tradition rather than the rule-based tradition that is in need of serious reconsideration’. 49

In the following chapter, Jules Holroyd and Federico Picinali explore ‘whether integrity plays a meaningful role as a standard of conduct for the criminal justice authorities, with specific regard to the gathering and the use of evidence’. 50 Aligning themselves with sceptical sentiment 51 and to ‘curb the growing enthusiasm for integrity’, 52 they develop their intuition 53 that appeals to ‘integrity’ in evidentiary discourse are superfluous and obfuscating. Meticulous conceptual analysis yields no definitive conclusion: ‘Our aim is not to claim that integrity is a useless tool in theorizing about, and in implementing, criminal procedure; rather, it is to show the challenges faced, and as yet unmet, by proponents of integrity.’ 54 As it happens, I anticipate that this challenge can be met, by conceptualising ‘integrity’ as an integrative ideal 55 and practical attitude rather than as another freestanding exclusionary rationale. Holroyd and Picinali acknowledge that this conception, which they associate with ‘balancing’, is not vulnerable to their main conceptual critique, but add, reasonably enough, that further implications ‘would require careful scrutiny’. 56

Alongside several other excellent contributions of which space precludes discussion, 57 these two chapters distinguish themselves as genuine efforts to connect legal doctrine with its philosophical foundations. 58 They exemplify and intimate the further possibilities of a distinctively jurisprudential reconstruction of (criminal) evidence and procedure.

Parts III and IV are devoted to argumentation theory, a somewhat arcane subfield of philosophy, which originally grew out of a reaction against the strictures of formal logic 59 and subsequently developed its own interdisciplinary debates with contributions from computer science, AI, cognitive psychology, rhetoric, linguistics and narratology, amongst others. 60 Overlapping with Part V’s exploration of (Bayesian) probability and the logic puzzles dissected in Part VI, fully 12 of the book’s 26 chapters focus on arguments.

Floris Bex’s refreshingly non-technical essay on ‘Argumentation and Evidence’ affords an exemplary introduction to this literature. 61 Proceeding from the truism that ‘Argumentation is central to legal and evidential reasoning’, 62 Bex outlines ‘how arguments based on evidence to conclusions in a case can be built, how these arguments can be attacked and defended against counterarguments, and how generalizations can be used and analyzed in argumentation’. He concludes by briefly considering some methodological limitations. One problem is that arguments tend to be linear and schematic (as their graphical representations vividly show), 63 at least compared to the more richly articulated ‘stories’ or ‘narratives’ that human reasoners find naturally appealing. 64 This theme is developed by Anne Ruth Mackor and Peter van Koppen in their chapter on ‘The Scenario Theory about Evidence in Criminal Law’. 65 A second, well-rehearsed criticism of argumentation analysis is that it does not directly generate criteria of probative value or ‘weight’ of evidence, prioritising logical relations above the quality of inferential conclusions. Argumentation theory insists that inductive inferential reasoning is not automatically fallacious simply because its conclusions are defeasible. 66 All empirical propositions are vulnerable to sceptical doubt and any belief about empirical facts may be mistaken, which is just another way of saying that all empirical inference is probabilistic. Forthwith to the topic of Part V, ‘Evidence and Probability’.

In ‘The Logic of Inference and Decision for Scientific Evidence’, Franco Taroni, Silvia Bozza and Alex Biedermann clarify the problem of reasoning under uncertainty in legal proceedings employing the tools of probability, especially subjective Bayesianism, as a framework for rational inference in forensic science. This commendably accessible contribution highlights the distinction between inference and decision, the conflation of which has traditionally bedevilled scientific evidence and expert witness testimony. 67 ‘The role of probability’, they explain, ‘is nothing less than to ensure logical reasoning’: 68

Bayes’ theorem specifies how to re-organize one’s state of mind based on new data, that is how to update initial beliefs (i.e., prior to data acquisition) about propositions of interest. This idea of updating beliefs in the light of new information is conceptualized in terms of the likelihood ratio, a rigorous concept for a balanced measure of the degree to which particular evidence is capable of discriminating between competing propositions put forward by parties at trial. 69

This chapter promotes critical understanding of the conceptual foundations and logic of probabilistic reasoning by way of antidote to rote learning of formal axioms and parroting mindless mantras. Forensic scientists are not necessarily any more proficient in probability or statistics than lawyers. Clarifying institutional roles and responsibilities in legal proceedings (already stressed by Wahlberg and Dahlman) helps to explain why ‘claims by scientists regarding the use of formal methods of reasoning cannot easily be carried over to the conceptual problems encountered by lawyers and, hence, are met with skepticism’. 70 In ‘Bayesianism: Objections and Rebuttals’, Norman Fenton and David Lagnado expound more technical features of subjective Bayesian reasoning and advocate formal modelling of likelihood ratios through Bayesian networks employing computational algorithms. 71 They urge that ‘Proper use of Bayesian reasoning has the potential to improve the efficiency, transparency, and fairness of criminal and civil justice systems’, 72 not least by neutralising pervasive reasoning errors, including the notorious ‘prosecutor’s fallacy’. 73 The Bayesians do not have it all their own way. Having catalogued the errors of ‘probability theorists’ (who would be wrong even if they were right 74 ) in the previous part, Mike Pardo and Ron Allen conclude Part V, with their second contribution, on ‘Generalizations and Reference Classes’, by larding on further criticism: ‘Due to the epistemological limitations flowing from the reference-class issue, mathematical models do not very well capture the probative value of evidence.’ 75

Without becoming embroiled in complex and long-running controversies, four brief observations are pertinent. First, whilst probability undoubtedly merits discussion in a book on the philosophical/theoretical foundations of evidence law, the extent of the coverage relative to other topics foreshortened or omitted entirely feels unbalanced. Secondly, to the extent that some theoretical debates or ‘paradoxes’ 76 are purely theoretical , their claims to foundational status for evidence law appear dubious. 77 It strikes me, for example, that the so-called ‘problem of the prior’ 78 is only a ‘problem’ for committed legal Bayesians, leaving conventional jurisprudential wisdom untroubled. 79 Thus, Dahlman and Kolflaath’s solution resembles the logic of undergoing eye surgery to compensate for wearing dark glasses. Why not simply ditch the theoretical spectacles and pre-empt excruciating correctives?

Thirdly, however, it does not follow from the fact that terms such as ‘subjective Bayesianism’, 80 ‘likelihood ratio’, 81 ‘reference class’ 82 or, indeed, ‘probability’ are not common currency in criminal litigation or doctrinal evidence law scholarship that they are irrelevant to practical institutional concerns. In fact, forensic scientists and other expert witnesses are already routinely employing these concepts and formulae in their casework, so lawyers and judges must educate themselves and strive to keep up. Probabilistic thinking and reference class problems are inherent features of human rationality, cognition, inferential reasoning and decision making, springing notorious traps on the unwary. These banana skins of thought do not vanish just because we choose to ignore them.

A fourth observation further interrogates the vaunted priority of ‘reasons’ over rules in theorising evidence law. Argumentation theorists and epistemologists 83 distinguish between contexts of inquiry and contexts of justification, roughly, between looking for, gathering, organising and analysing evidence on the one hand and evaluating, forming beliefs or making decisions on the basis of evidence—evidence-based beliefs or decisions—on the other. 84 For decisions to be rational, they must be reasoned. So contexts of justification are fundamentally concerned with reasons . If the question is straightforwardly one of belief, then rationality demands that one should believe what one has most reason to believe; and for many (admittedly not all) questions, the best evidence will give the best reasons, or ‘epistemic warrant’, for belief ( evidentialism ). If, on the totality of evidence, it looks like p is true, 85 you should (rationally) believe p . In the context of legal adjudication, the best epistemic warrant for the tribunal’s decision is the best evidence, or at any rate sufficient evidence to satisfy the applicable proof threshold—in legal parlance, the burden and standard of proof. 86 When legal factfinders are called on to explain the reasons for their decisions, they are enjoined to explain what evidence they found compelling in supporting particular factual inferences, ultimately leading to the resolution of litigated claims or allegations—Wigmore’s ‘ultimate probandum’.

If we focus on contexts of justification, and more specifically on the evidential adequacy of trial verdicts, ‘reasons’ can be theorised as more fundamental in legal adjudication than (doctrinal) rules. Practising lawyers and legal scholars, however, currently think in terms of ‘proof’ rather than ‘reasons’, requiring an effort of translation from orthodox terminology and intellectual frameworks. But if, as it seems, these alternative conceptual schemas are linguistically fungible, ‘Evidence and Proof’ would be a more transparent and intelligible theoretical framing than ‘Evidence and Reasons’. Moreover, Evidence law as traditionally understood in UK jurisdictions is not much concerned with contexts of justification, because jury verdicts are not publicly reasoned 87 and, even post-Human Rights Act 1998, magistrates’ courts’ decisions are sparsely reasoned and of limited doctrinal interest. Justification in orthodox common law evidentiary thinking mostly relates to judicial rationales for the development and application of evidentiary rules, not to the rationality of fact-finding. Justification in the common law world, in other words, traditionally concerns law, not facts. Relatedly, legal argumentation in relation to evidence is generally conceived as referring to arguments addressed to judges about the law, nowadays addressing forensic reasoning rules as well as questions of admissibility. 88 If the philosophical/theoretical foundations of Evidence Law are primarily orientated to contexts of justification, it remains unclear how they can be foundational for common law evidence.

Part VII extends the volume’s epistemological framing into more concrete applications. Reprising the naturalised approach championed by Broughton and Leiter, Justin Sevier suggests that ‘Empirical psychology is a natural fit for understanding the law of evidence but is also substantially at odds with it’, 89 giving rise to ‘methodological and philosophical challenges’. 90 Empirical psychology is a ‘scientific discipline [whose] goal is to discover truth’. Trial rules of evidence, by contrast, ‘routinely balance the factfinder’s quest for the truth with other policy considerations, including the procedural rights of criminal defendants and the protection of important societal relationships’, leading to the exclusion of ‘otherwise highly probative information … potentially at the expense of decision accuracy’. 91 The ‘disconnect’ 92 that Sevier is describing is only elliptically ‘philosophical’. A more straightforward jurisprudential analysis is that adjudication serves normative ends, to which accurate fact-finding is a (major) functional contributor rather than a dominant purpose. The point of adjudication is to do justice according to law. This ordering of priorities is obscured by assuming the centrality of accurate fact-finding and treating all other ‘policy’ factors as side-constraints potentially detracting from (‘at the expense of’) factual rectitude, in the manner of traditional Law of Evidence scholarship and its US FRE iteration in particular. 93 Important normative and jurisprudential questions that, to my mind, ought to be central to theorising about judicial evidence are mostly absent from the relentless truth-instrumentalism of epistemic priority. 94 Traditional common law Evidence scholarship gravitated towards rules with obvious epistemological salience, such as the hearsay prohibition, 95 whilst neglecting foundational features of criminal procedure, including the presumption of innocence, the privilege against self-incrimination and the right to a fair trial. A more comprehensively normative theoretical framework, still incorporating significant epistemological components, could claim greater fidelity to evidence law as practised (at least in my jurisdiction) and cast Evidence law theory in a substantially different light.

None of which directly contradicts Sevier’s (or Broughton and Leiter’s) project of investigating the adequacy of evidence law’s empirical assumptions utilising the tools of experimental psychology and social science, 96 or denigrates reformist aspirations to improve verdict inaccuracy insofar as data and proposals legitimately relate to epistemic objectives . Conversely, ‘scientific’ methods cannot displace or circumvent normative (jurisprudential or political morality) arguments on pain of naturalistic fallacy. Sevier assumes the FRE and US adversarial litigation as the default referents of ‘evidence law’ and legal process. I am sceptical about his assertion that ‘evidence law is, at its core, deeply rooted in psychology’, 97 but it is hard to quibble with Sevier’s balanced evaluations of the accumulating corpus of psychological research bearing on eg character evidence, hearsay, witness impeachment and scientific evidence, or with his cautious advice for policy makers. ‘Whether those rule-makers will (or should) listen is a complex question’, 98 he volunteers, disarmingly. Furthermore, given ‘current issues in psychology—including a renewed interest in the replicability of prior studies’:

evidence rule-makers may be cautious even of the clear conclusions from this body of work. It may behoove psychologists to consider supplementing these findings with field research, including data collected from real trials. 99

Where Sevier is cautiously optimistic about the prospects for psychologists informing ‘legal policy-makers about the wisdom of many evidentiary rules’, 100 the tone of Frank Zenker’s contribution on ‘De-biasing Legal Factfinders’—the book’s final chapter—is pessimistic. Perplexity regarding ‘unconscious bias’ has lately generated widespread public debate and the search for effective remedial measures in many areas of public, employment and social life, including legal process. 101 Zenker is chiefly concerned with conceptual clarification of ‘bias’ and ‘debiasing’, an essential—but too often neglected—precondition for successful experimental research in psychology or social science. Notably, this chapter takes a genuinely philosophical approach to foundational issues—reflecting Zenker’s own background and disciplinary affiliation—though ‘debiasing’ is not strictly a philosophical or jurisprudential term, but rather part of a broader, interdisciplinary project of theorising Evidence law. Unfortunately, the harvest, thus far,is meagre: ‘empirical research results are both scant and mixed … [and] may seem to deliver less than what one would have hoped for’. 102 Zenker’s main conclusions are analytical rather than practical or reformist: ‘effective de-biasing measures must simultaneously address aspects of cognition , motivation , and technology , perhaps in ways more similar to personalized medicine than to a typical form of instruction. Being personally de-biasable, whatever this means, also presupposes a conducive institutional environment’. 103

Sandwiched between these sunny and darker sides of empirical psychology are two chapters engaging directly with evidence law and criminal process in the United States. Julia Simon-Kerr reconsiders ‘Relevance through a Feminist Lens’, starting from the question ‘what does it mean to apply “feminist” theory in the context of an evidentiary system designed by men?’ 104 At least part of the answer to that question must contend with the thought that, insofar as evidence law is a product of historically evolved procedural traditions, it is doubtful whether anybody can be credited with its design. 105 This essay touches on significant issues and themes forced onto the law school agenda by feminist scholars and activists since the 1980s, 106 but many of them concern issues of substantive law with only derivatively evidentiary implications, as Simon-Kerr herself intermittently acknowledges. 107 If the applicable substantive law is sexist, this will inevitably skew evidential judgments of materiality and relevance, but it does not follow that the concept of relevance is itself discriminatory. In fact, what Simon-Kerr characterises as ‘theories of relevance’ are more properly culturally specific ‘common sense’ generalisations, some of which are indubitably still distorted by prejudice and bias, 108 and were even more brazenly disfigured within historical living memory. Normative legal standards infected by sexism, whether procedural or substantive, are in principle remediable through targeted law reform. More comprehensive feminist objectives to include formerly ‘silence[d] voices and narratives’ and ‘pivot the center’ in the ‘human struggle over which “social realities are better” or more real’ 109 imply more radical social reform and cultural transformation, in which law would presumably be a supporting bit player; and evidence law, within that, a fleeting walk-on part. Generally speaking, the most obvious targets of institutional reform are litigation practice, such as the conduct of witness examination or the management of fact-finding, rather than evidence law as such. Besides, I doubt whether ‘rational logic’ or the Thayerite conception of relevance are in any way to blame for evidentiary practices that have ‘subtly or overtly privileged the perspective of white men to the exclusion of other voices’. 110

In the book’s penultimate chapter, Jasmine Gonzales Rose investigates ‘Race, Evidence, and Epistemic Injustice’ by exploring ‘what makes racist evidence wrong as a matter of proof and truth’. 111 This is an intriguing question, since one might have assumed that racist evidence is self-evidently wrong because and for the same reasons that racism is wrong. Paralleling Simon-Kerr’s critique of gender bias, Gonzales Rose is concerned that ‘evidence rules, doctrines, practices, and policy rationales are employed or even more frequently overlooked to quiet, if not silence, the testimony, knowledge, and perspectives of people of color in the courtroom’. 112 Specifically, using previous convictions to impeach the accused’s testimony is racist because having criminal convictions ‘has become a racialized trait in the United States’; 113 eyewitness identification is racist because, ‘due to white privilege, white witnesses’ identifications of suspects are more likely to be believed by jurors than witnesses of color even though white witnesses are statistically less reliable’; 114 evidence of police violence is racist because prosecutors, grand juries and (white) trial judges refuse to credit or act on it; and evidence that a suspect evaded the police is racist owing to ‘the white norm that only the guilty flee … Under white racialized reality, police officers are protectors of the public and only guilty people would run from them’. The problem is compounded because, ‘Unlike white people who do not have knowledge about the relationship between people of color and police, many Black people have vast evidence-based knowledge of how police officers treat Black people’ and they know that ‘law enforcement should be avoided at all costs’. 115 These strike me as sweeping (empirical) generalisations that highlight significant social issues but also raise as many theoretical questions as they answer. Gonzales Rose’s account would be more convincing if all the witnesses, police officers, judges and jurors in US criminal proceedings were white and all suspects and accused were Black: but that cannot be so. Like Simon-Kerr, Gonzales Rose tends to elide evidence doctrine, litigation process, inferential reasoning and fact-finding, but in a rather more totalising and reductive fashion. Her critique seems to amount to the proposition that, under ‘white racialized reality’, all judicial evidence is (potentially) racist, constituting distinctive forms of ‘epistemic injustice’. 116 She does not say what, if anything, could be done to ameliorate the situation. Perhaps having Evidence students read, and discuss, her chapter would be a start?

Taking these two chapters as fair evaluation of contemporary US evidence law and legal process (I am patently unqualified to second-guess insiders), I am left wondering what, if any, more general (‘foundational’) lessons might be extrapolated from what are, on the face of it, intensely parochial discussions. Trait-based discrimination is surely likely to play out differently in different societies, cultures and legal systems. To what extent, for example, does the critique of ‘white privilege’ extend to societies where virtually everybody is white, or where almost nobody is? Are legal proceedings in Saudi Arabia dominated by ‘Arab racialised reality’, are those in Iran dominated by ‘Persian racialised reality’, in China by ‘Chinese racialised reality’, etc? Or is ‘racialised reality’ a meaningful concept only in a multicultural society? And if so, what follows for evidence law or Evidence law theory from that methodologically significant qualification? Is there any valid analogy between discrimination based on skin colour or ethnicity and forms of sectarian, sexual preference or disability discrimination? What about good old-fashioned class bias? 117 The particularism of legal doctrine is especially prominent in these chapters. In English law, there is no ‘force or fraud’ requirement for rape, 118 bad character evidence has never been restricted to non-propensity uses 119 and previous convictions are no longer automatically admitted to credit. 120 Conversely, pre-trial silence—let alone ‘admissions by conduct’, such as trying to evade police pursuit and arrest—is routinely admissible in English criminal trials as a basis for adverse inferences, 121 a practice that would be unconstitutional, and jurisprudentially scandalous, in the United States. 122 Doctrinal details make a difference, even if they do not always show up in macroscopical snapshots of the bigger evidential picture.

Inasmuch as people are people, with similar cognitive capacities, affective attitudes and proclivities, everywhere on the planet, it is plausible to investigate, describe, critically evaluate and legislate for generic features of judicial evidence, proof and fact-finding that would be found in just about any modern legal system anywhere in the world. But this is a valid premiss only at a relatively high level of abstraction. Cognitive capacities and foibles shared by all human beings are inflected at the local level by contextual political, social and cultural factors, including—most pertinently for the present discussion—institutional features of legal processes that are highly variable, even as between jurisdictions that are geographically proximate, or even within a single territorial state. Sometimes, perhaps typically, local intersections between human cognition and institutional environments will be more interesting or consequential than universal capacities and generalisations. The implication is that Evidence theory needs to find productive ways, to engage with procedural traditions, institutional cultures and local jurisprudence to combine the generalities of human cognitive capacities and generic norms of social conflict resolution with the particularism of actual evidence law, in real-life legal proceedings, in existing legal systems. Comparative law offers extensive resources for this task, 123 largely untapped by Evidence scholars. 124

Programmatic disciplinary (re)construction has a marketing dimension, as do the legal publications that are integral to it. PFoEL might have been titled ‘Theoretical Foundations of Evidence Law’ or simply ‘Evidence Law Theory’, but the virtues of literalism must be set against the opportunity to leverage disciplinary credibility through inclusion in a prestigious ‘philosophical foundations’ series. The book is impressive in its range of topics, contributor expertise and cosmopolitan authorship. Individual chapters should be widely read and used in Evidence law teaching wherever English is one language of instruction. The chapters are relatively short and incisive, most running to around 15 pages, which enhances their pedagogical value as accessible introductions and topical overviews, but limits their potential as original contributions to scholarship. Some of them reproduce in conspectus what their authors have argued at far greater length elsewhere. 125 There is something redolent of encyclopaedia entries to this format, though the generality of much of the content should ensure a reasonable measure of longevity for this edition.

The editors have performed sterling service in conceiving, organising and producing this volume, but their industry did not extend to providing readers with a metatheoretical roadmap to the disciplinary field they have seeded. This review has endeavoured to sketch in some of the missing contour lines, dramatic vistas and topographical features populating this terrain. My ‘jurisprudential’ version of the philosophical foundations of evidence law would have been no less interdisciplinary but more philosophical, more normative in multiple senses (legal and moral), more institutionally contextualised, less fascinated by theoretical puzzles, more interested in doctrinal materials and empirical realties. It would have extended the volume’s cosmopolitanism to include more regions of the world and different types of proceedings—including proceedings before international human rights courts 126 and international criminal tribunals. 127 It would have been less American, not in authorship necessarily, but in orientation and assumptions, not least because in many respects US evidence law is an unreliable representative of the extended common law family, exhibiting both positive and negative dimensions of US legal exceptionalism. 128 For a variety of interlocking reasons only gestured towards here, I favour a procedurally disaggregated model of evidence law conceptualised, in broader terms, as ‘criminal jurisprudence’. 129

Theoretical choices in disciplinary mapping are always informed by subjective preferences. Any critical appraisal of PFoEL ultimately stands or falls to the extent that it resonates with the experience, expectations, research agendas and pedagogical requirements of Evidence Law teachers, scholars and intellectually curious practitioners. Every critic is presumptively a lazy or frustrated author with an inflated view of their own talents. Those who believe they could produce a superior account of the philosophical foundations of evidence law now have, in this timely addition to our formative literature, an exemplary benchmark against which to prove it.

A review of Christian Dahlman, Alex Stein and Giovanni Tuzet (eds), Philosophical Foundations of Evidence Law (OUP 2021).

Professor of Criminal Jurisprudence, University of Nottingham, UK; Adjunct Professor of Law, CUPL, Beijing, PRC. Email: [email protected]. An early version of this paper, titled ‘Theorising Evidence: What Did we Learn?’, was presented to the North Sea Group’s On-Line Seminars on Legal Evidence in April 2022, with thanks to Anne Ruth Mackor, Christian Dahlman and all the participants for illuminating discussions at that and many other virtual meetings before and since. Revised drafts have benefited from generous feedback from Ron Allen, Hock Lai Ho, Matt Thomason, William Twining, Emmanuel Voyiakis, and three anonymous referees. All remaining heresies and inexactitude are mine.

With apologies to Maureen Lipman: < www.youtube.com/watch?v=NK5-2fPyCjA >.

See eg Dennis Patterson and Michael S Pardo (eds), Philosophical Foundations of Law and Neuroscience (OUP 2016); Andrew S Gold and Paul B Miller (eds), Philosophical Foundations of Fiduciary Law (OUP 2014); Andrei Marmor and Scott Soames (eds), Philosophical Foundations of Language in the Law (2nd edn, CUP 2005).

Cf Terrence Anderson, David Schum and William Twining, Analysis of Evidence (CUP, 2/e 2005).

Frederick Schauer, The Proof: Uses of Evidence in Law, Politics, and Everything Else (Harvard UP 2022); Susan Haack, Evidence Matters: Science, Proof, and Truth in the Law (CUP 2014); Philip Dawid, William Twining and Mimi Vasilaki (eds), Evidence, Inference and Enquiry (OUP 2011).

See eg Donald Nicolson, Evidence and Proof in Scotland: Context and Critique (Edinburgh UP 2019); Paul Roberts and Mike Redmayne (eds), Innovations in Evidence and Proof (Hart Publishing 2007); Peter Murphy, Evidence, Proof and Facts: A Book of Sources (OUP 1993).

Or 1970s’, for those with longer memories. See (standing the test of time) Laurence H Tribe, ‘Trial by Mathematics: Precision and Ritual in the Legal Process’ (1971) 84 Harv L Rev 1329.

Richard Lempert, ‘The New Evidence Scholarship: Analyzing the Process of Proof’ (1986) 66 BUL Rev 439; John D Jackson, ‘Analysing the New Evidence Scholarship: Towards a New Conception of the Law of Evidence’ (1996) 16 OJLS 309.

See especially John H Wigmore, ‘The Problem of Proof’ (1913) 8 Illinois Law Review 77; John Henry Wigmore, The Principles of Judicial Proof as Given by Logic, Psychology, and General Experience and Illustrated in Judicial Trials (1st edn, Little, Brown & Co 1913).

William Twining, Theories of Evidence: Bentham and Wigmore (Weidenfeld & Nicolson 1985).

Eric D Green, ‘Boston University Law Review Symposium: Foreword’ (1986) 66 BUL Rev 377 (comprising 580 pages).

Indeed, in his own single-authored contribution, Stein simply announces that ‘Evidence law is a system of rules that regulate the process of factfinding in the courts of law’: ibid 96. The plot thickens.

I call this miscellany ‘Hard-working soft law’, notably embracing: the Criminal Procedure Rules and Practice Directions; statutory codes of practice; the Crown Court Compendium (as it now is); and a variety of official guidance and professional training materials and resources.

See eg Peter Tillers, ‘Discussion Paper: The Structure and the Logic of Proof in Trials’ (2011) 10 Law, Probability & Risk 1; Mike Redmayne, ‘Appeals to Reason’ (2002) 65 MLR 19.

As the authors themselves observe, ‘we have discussed the expert witness’s role in the legal factfinding process’ (64), before concluding with a summary of normative prescriptions that could have been lifted directly from English law: cf Michael Stockdale, ‘Reliability by Procedural Rule Reform? Expert Evidence and the Civil-Criminal-Family Procedure Rules Trichotomy’ in Paul Roberts and Michael Stockdale (eds), Forensic Science Evidence and Expert Witness Testimony: Reliability Through Reform? (Edward Elgar 2018).

Cf Mike Redmayne, ‘Exploring the Proof Paradoxes’ (2008) 14 Legal Theory 281. Epistemologists will notice an obvious parallel in endlessly dissected ‘Gettier problems’: Michael S Pardo, ‘The Gettier Problem and Legal Proof’ (2010) 16 Legal Theory 37.

Emily Spottswood tackles ‘Burdens of Proof’; Laurence Solan extends linguistic analysis to hearsay doctrine; and Julia Simon-Kerr reconsiders relevance from a feminist perspective. Franco Taroni, Alex Biedermann and Silvia Bozza address scientific evidence, but largely in general terms of rational inference rather than evidentiary regulation.

PFoEL 26 (original emphasis).

Talia Fisher muses that ‘A direct line can be drawn from Bentham’s “principle of utility” to cost-benefit analysis (CBA) so it would seem only natural that the realms of evidence law and judicial factfinding would harbor this type of reasoning’: 137 (footnote omitted). But since Bentham was a perpetual outsider to the legal establishment, which cheerfully shunned him in return, there is no reason to think that either evidence law or the Law of Evidence would be constructed in Bentham’s image any more than, say, academic philosophy is constructed in Nietzsche’s. Fred Schauer’s contribution to the volume provides some biographical context for Bentham’s ideas.

As Stein says of the ‘statistical method’ orientated at minimising costs and error avoidance, this ‘pays no regard to the ultimate object of adjudicative factfinding’ and thus ‘exists only in the academic literature, where it serves most successfully as a tool for evaluating the overall performance of the legal system in terms of social welfare’: 106 (footnote omitted). This sounds to me like a very particular brand of (economistic) political theory, with tenuous links to evidence scholarship as I understand it.

ibid 14. According to the Introduction, ‘Ho defends the classical—yet not universally accepted—proposition that trials aim primarily at determining the truth of disputed propositions of fact’: ibid 2 (original emphasis). In fact, Ho examines this claim without explicit endorsement: cf Hock Lai Ho, A Philosophy of Evidence Law—Justice in the Search for Truth (OUP 2008) 48–9. The question of primacy goes to the heart of the debate, a point not lost on Amaya: ‘it is critical to notice that truth is a momentous, but hardly a unique, value in adjudication. The adequacy of justificatory standards for legal factfinding should be accordingly assessed against the plurality of values (epistemic and otherwise) that trials are meant to serve, rather than, exclusively, on their truth-conduciveness’: 242.

Exemplified by Michael S Pardo and Dennis Patterson, Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience (OUP 2013).

The philosophical connection is clearer in Ronald J Allen and Brian Leiter, ‘Naturalized Epistemology and the Law of Evidence’ (2001) 87 Va L Rev 1491.

Larry Laudan, ‘Is Reasonable Doubt Reasonable?’ (2003) 9 Legal Theory 295.

John D Jackson, ‘Unbecoming Jurors and Unreasoned Verdicts: Realising Integrity in the Jury Room’ in Jill Hunter, Paul Roberts, Simon NM Young and David Dixon (eds), The Integrity of Criminal Process (Hart Publishing 2016). The general argument for reason-giving in adjudication is undeniably compelling: see HL Ho, ‘The Judicial Duty to Give Reasons’ (2000) 20 LS 42.

Paul Roberts, ‘Does Article 6 of the European Convention on Human Rights Require Reasoned Verdicts in Criminal Trials?’ (2011) 11 Human Rights Law Review 213. See also Kayla A Burd and Valerie P Hans, ‘Reasoned Verdicts: Oversold?’ (2018) 51 Cornell Int’l LJ 319, 359–60 (‘requiring reasons may disrupt juror decision making in unanticipated ways … [and] will undermine the independence of jurors and juries’).

Criminal trial juries in England and Wales are directed to be ‘sure’ of guilt, or otherwise acquit: Judicial College, The Crown Court Compendium— Part I: Jury and Trial Management and Summing Up (August 2021) 5-2, [8]; R v Smith (Scott) [2012] EWCA Crim 702; R v Majid [2009] EWCA Crim 2563; R v Blackford [2009] EWCA Crim 1684 (rejecting ‘beyond reasonable doubt’ in favour of the standard articulated by Goddard CJ in R v Summers [1952] 1 All ER 1059, CCA).

Some researchers wrongly assume that jurors decide by personal (subjective) vote, when in fact they are instructed to deliberate together in order to produce a single (objective, or for those with objectivity-phobia, ‘inter-subjective’) jury verdict.

Paul Roberts, Roberts and Zuckerman on Criminal Evidence (3rd edn, OUP 2022) ch 11.

See eg Anders Nordgaard and Birgitta Rasmusson, ‘The Likelihood Ratio as Value of Evidence: More than a Question of Numbers’ (2012) 11 Law, Probability & Risk 303. But cf Charles EH Berger and Klaas Slooten, ‘The LR Does Not Exist’ (2016) 56 Science and Justice 388.

Popularly, ‘the prosecutor’s fallacy’: see R v Doheny and Adams [1997] 1 Cr App R 369, CA; William C Thompson and Edward L Schumann, ‘Interpretation of Statistical Evidence in Criminal Trials: The Prosecutor’s Fallacy and the Defense Attorney’s Fallacy’ (1987) 11 Law and Human Behavior 167.

As English law is well aware: R v Adams (No 2) [1998] 1 Cr App R 377, CA; R v Adams [1996] 2 Cr App R 467, CA.

That is to say, illegitimately substituting the probability of the evidence assuming an hypothesis, p(E | H), with the probability of the hypothesis assuming the evidence, p(H | E). See Colin Aitken, Paul Roberts and Graham Jackson, Fundamentals of Probability and Statistical Evidence in Criminal Proceedings , RSS Practitioner Manual No 1 (Royal Statistical Society 2010).

Consider eg the observation that ‘Whether the hypothesis is proven or not is an issue of law that should be decided by the factfinder’: PFoEL 59. Wahlberg and Dahlman plainly mean that the issue is one for resolution by the tribunal . But a common lawyer would call this disputed factual hypothesis a question of fact, not law.

According to rule 1.1 of the Criminal Procedure Rules, ‘The overriding objective … is that criminal cases be dealt with justly’, further particularised with both epistemic and non-epistemic components.

Paul Roberts, Roberts and Zuckerman’s Criminal Evidence (3rd edn, OUP 2022); cf Adrian Zuckerman, Zuckerman on Civil Procedure: Principles of Practice (4th edn, Sweet & Maxwell 2021).

William Twining, Rethinking Evidence: Exploratory Essays (Blackwell 1990). More recently, John Jackson and Paul Roberts, ‘Beyond Common Law Evidence: Reimagining, and Reinvigorating, Evidence Law as Forensic Science’ in Darryl K Brown, Jenia Iontcheva Turner and Bettina Weisser (eds), The Oxford Handbook of Criminal Process (OUP 2019).

See also Frederick Schauer, ‘On the Supposed Jury-Dependence of Evidence Law’ (2006) 155 U Pa L Rev 165.

As Schauer memorably puts it, with a nod to Spike Lee: ‘“Do the right thing” may work well as the title of a movie, but no society has yet come to the conclusion that it works well as the best approach to social organization and institutional design’: ibid 78 (footnotes omitted). On the virtues of legal formalism, see Frederick Schauer, ‘Formalism’ (1988) 97 Yale LJ 509; Neil McCormick, Institutions of Law (OUP 2008); Robert S Summers, ‘How Law Is Formal and Why It Matters’ (1997) 82 Cornell L Rev 1165.

Cf Andrew Ashworth, ‘Exploring the Integrity Principle in Evidence and Procedure’ in Peter Mirfield and Roger Smith (eds), Essays for Colin Tapper (OUP 2003). More optimistically, see Paul Roberts and others, ‘Introduction: Re-examining Criminal Process through the Lens of Integrity’ in Hunter and others (n 31).

With their casual reference to an ‘intuition pump’ (ibid 85), we have a rare sighting of a bona fide philosophical construct. See Daniel C Dennett, Intuition Pumps and Other Tools for Thinking (Penguin 2014); Peter S Fosl and Julian Baggini, The Philosopher’s Toolkit: A Compendium of Philosophical Concepts and Methods (3rd edn, Wiley 2020) §2.6.

Cf Ronald Dworkin, Law’s Empire (Fontana 1986); Gerald J Postema, ‘Integrity: Justice in Workclothes’ (1997) 82 Iowa L Rev 821.

Including Dale A Nance, ‘Weight of Evidence’; a taster for Dale A Nance, The Burdens of Proof: Discriminatory Powers, Weight of Evidence, and Tenacity of Belief (CUP 2016).

Stein’s chapter, on ‘Second-Personal Evidence’, is also jurisprudential in style and Hohfeldian inspiration, but its intended audience is unclear. The opening sentence seemingly implies that the argument is old hat to lawyers: ‘Before Hohfeld, legal insiders intuited that law is second-personal in all of its operations. After Hohfeld, they knew it’: PFoEL 96.

Stephen E Toulmin, The Uses of Argument (1958; updated edn CUP 2003).

Argumentation theory is closely associated with the work of Douglas Walton, who died in January 2020: see Katie Atkinson and others, ‘In Memoriam Douglas N Walton: The Influence of Doug Walton on AI and Law’ (2020) 28 Artificial Intelligence and Law 281.

See also Henry Prakken, ‘Analysing Reasoning About Evidence with Formal Models of Argumentation’ (2004) 3 Law, Probability & Risk 33.

Wigmore is, once more, the pioneer and inspiration: see Peter Tillers and David Schum, ‘Charting New Territory in Juridical Proof: Beyond Wigmore’ (1988) 9 Cardozo L Rev 907; Terrence Anderson, David Schum and William Twining, Analysis of Evidence (2nd edn, CUP 2005).

Nancy Pennington and Reid Hastie, ‘A Cognitive Theory of Juror Decision Making: The Story Model’ (1991) 13 Cardozo L Rev 519; Emma Cunliffe, ‘Judging, Fast and Slow: Using Decision-Making Theory to Explore Judicial Fact Determination’ (2014) 16 E & P 139.

See also Peter J van Koppen and Anne Ruth Mackor, ‘A Scenario Approach to the Simonshaven Case’ (2020) 12 Topics in Cognitive Science 1132; Paul Roberts, ‘Scenarios, Probability and Evidence Scholarship, Old and New’ (2020) 12 Topics in Cognitive Science 1213.

Douglas Walton, ‘Nonfallacious Arguments from Ignorance’ (1992) 29 American Philosophical Quarterly 381. Formal logic obeys the ‘principle of monotony’, entailing that established truths are impervious to more information—they are indefeasible ; or else they are not true. See Igor Douven, ‘Abduction’ in The Stanford Encyclopedia of Philosophy (Spring edn, 2011).

Alex Biedermann, Franco Taroni and Colin Aitken, ‘Liberties and Constraints of the Normative Approach to Evaluation and Decision in Forensic Science: A Discussion towards Overcoming Some Common Misconceptions’ (2014) 13 Law, Probability & Risk 181.

ibid 262. The American accent extends to spelling!

See also Franco Taroni and others, Bayesian Networks for Probabilistic Inference and Decision Analysis in Forensic Science (2nd edn, Wiley 2014); Graham Jackson, Colin Aitken and Paul Roberts, Case Assessment and Interpretation of Expert Evidence , RSS Practitioner Manual No 4 (Royal Statistical Society 2014); Bernard Robertson, GA Vignaux and Charles Berger, Interpreting Evidence: Evaluating Forensic Science in the Courtroom (2nd edn, Wiley 2016); Ron Allen and Mike Redmayne (eds), Special Issue on Bayesianism and Juridical Proof (1997) 1(5) E & P 253.

Thompson and Schumann (n 38); David J Balding and Peter Donnelly, ‘The Prosecutor’s Fallacy and DNA Evidence’ [1994] Crim LR 711.

That is to say, even if it were true that ‘probability theory in the guise of likelihood ratios gives purchase on the concept of probative value’, this would still be a false account of adjudication practice as it actually exists in common law jurisdictions: ‘were the probability theorists right, they would obviously be wrong as an explanation of juridical proof … Thus, the probability argument would amount to a criticism of trial practice rather than an explanation of it’: PFoEL 212.

Or so-called paradoxes: cf Roy Sorensen , A Brief History of the Paradox: Philosophy of the Labyrinths of the Mind (OUP 2005).

Cf Taroni, Bozza and Biedermann’s caution that ‘largely theoretical topics such as “naked statistical evidence” … are based on peculiar sets of assumptions that hardly ever map suitably onto problems encountered by legal systems in operation, not least because the problem in the first place is not one of probability, but decision’: PFoEL 262.

For Christian Dahlman and Eivind Kolflaath, ‘The Problem of the Prior in Criminal Trials’, the motivating question is ‘If a legal factfinder uses Bayesian updating to assess the evidence in a criminal trial, what prior probability should the factfinder start out with?’: ibid 287. If any legal factfinder truly were this kind of Bayesian updater, somebody would presumably have noticed by now. But this chapter’s masthead joke (no spoilers) is worth the price of admission.

Richard D Friedman, ‘A Presumption of Innocence, Not of Even Odds’ (2000) 52 Stan L Rev 873.

Mike Redmayne, ‘Bayesianism and Proof’ in Michael Freeman and Helen Reece (eds), Science in Court (Ashgate 1998).

Anders Nordgaard and Birgitta Rasmusson, ‘The Likelihood Ratio as Value of Evidence: More than a Question of Numbers’ (2012) 11 Law, Probability & Risk 303.

Ron Allen and Paul Roberts (eds), Special Issue on the Reference Class Problem (2007) 11(4) E & P 243.

See also ‘Coherence in Legal Evidence’ by Amalia Amaya, which expounds and defends a theory of ‘virtue coherentism’ as the best solution ‘to the problem of the coherence bias that cuts off coherence from justification’ (PFoEL 243), and lays out an agenda for further interdisciplinary research in social epistemology and related fields. This chapter emphatically ticks the ‘philosophy’ box, but says little about ‘ legal evidence’.

‘In philosophy’, it has been observed, rather dauntingly, ‘the distinction between justification and discovery has vexed scholars for millennia’: David Schum, ‘Marshaling Thoughts and Evidence during Fact Investigation’ (1999) 40 S Tex L Rev 401, 417.

Equivalently, ‘ p is the case’; or simply p .

Cf Emily Spottswood’s contribution on ‘Burdens of Proof’, conceptualising ‘Burdens of proof … as functions that map a measure of case strength onto variations in the level of applicable sanctions’ (PFoEL 121). The gulf between legal theory and evidentiary doctrine could hardly be more apparent. Like the chapter by Talia Fisher on ‘Cost–Benefit Analysis of Evidence Law and Factfinding’, this style of theorising—reflecting broader path dependencies in anglophone research programmes—is alien to British evidence law scholarship: two nations divided by a common (law) language .

I stress the lack of publicity, as opposed to the absence of reasons. We assuredly want juries to have convincing reasons for their decisions, but we do not necessarily want (or need) to know what those reasons were. Cf JC Smith, ‘Is Ignorance Bliss? Could Jury Trial Survive Investigation?’ (1998) 38 Medicine, Science and the Law 98.

Roberts and Zuckerman’s Criminal Evidence , ch 15.

Thus, Schauer characterises ‘exclusionary rules that serve functions extrinsic to the factfinding process’ as a ‘digression’ from the main business of Evidence Law: ibid 73. With these ‘exceptions’ acknowledged, the conceptually exclusionary stipulation is complete: ‘Such extrinsic exclusionary rules apart … most of the rules of evidence, and the ones that represent the stark contrast with the free proof tradition, are intrinsic in the sense of being aimed at the goal of increasing the accuracy of the factfinding process.’

Cf Larry Laudan, Truth, Error and Criminal Law: An Essay in Legal Epistemology (CUP 2006); Daniel Epps, ‘The Consequences of Error in Criminal Justice’ (2015) 128 Harv L Rev 1065.

In his chapter on ‘linguistic evidentials’ (bits of language signalling epistemic warrants for asserted or reported propositions), Lawrence Solan confidently announces that ‘The most significant rule concerning the reliability of evidence is the rule against hearsay’: PFoEL 158.

See also Michael J Saks and Barbara A Spellman, The Psychological Foundations of Evidence Law (NYU Press 2016); Paul Roberts, ‘The New Interdisciplinary Forensic Science’ (2016) 43 Journal of Law and Society 647.

PFoEL 360. It seems to me both closer to the truth and more conducive to clear thinking to say that evidence law ‘at its core’ is deeply rooted in humanity, society, culture, procedural tradition and justice.

ibid 361 (footnote omitted). On the ‘replicability crisis’ in behavioural sciences, see Jason M Chin, Bethany Growns and David T Mellor, ‘Improving Expert Evidence: The Role of Open Science and Transparency’ (2019) 50 Ottawa L Rev 365; Jason M Chin, ‘Psychological Science’s Replicability Crisis and What It Means for Science in the Courtroom’ (2014) 20 Psychology, Public Policy, and Law 225.

Jeffrey J Rachlinski, Sheri Lynn Johnson, Andrew J Wistrich and Chris Guthrie, ‘Does Unconscious Racial Bias Affect Trial Judges?’ (2009) 84 Notre Dame L Rev 1195; Itiel E Dror, ‘Practical Solutions to Cognitive and Human Factor Challenges in Forensic Science’ (2013) 4 Forensic Science Policy and Management 1.

ibid (original emphasis).

cf Ronald J Allen, ‘The Simpson Affair, Reform of the Criminal Justice Process, and Magic Bullets’ (1996) 67 U Colo L Rev 989.

eg Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Hart Publishing 1998); Carol Smart, Feminism and the Power of Law (Routledge 1989).

In relation to sexual assault, for example, ‘viewing the problem from a feminist perspective focused on relevance reveals that the substantive law might have more work to do in this area’: PFoEL 373 (emphasis added).

A point beautifully illustrated—show, don’t tell!—by Susan Glaspell, A Jury of Her Peers (1917, Digireads 2005). Generally, see Louise Ellison and Vanessa E Munro, ‘“Telling Tales”: Exploring Narratives of Life and Law within the (Mock) Jury Room’ (2015) 35 LS 201.

ibid 386–7.

Following Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing (OUP 2009).

Gonzales Rose relies on a study linking witness credibility to ‘higher-status accents’. Whilst accent credibility may track ethnicity in the United States, I anticipate that in the UK accent is mainly a function of geography and socio-economic status.

Now by statute—Sexual Offences Act 2003, ss 1 and 74—formerly at common law: R v Olugboja [1982] QB 320, CA. Cf Stephen J Schulhofer, ‘Reforming the Law of Rape’ (2017) 35 Law & Ineq J 335.

Criminal Justice 2003, ss 101 and 103. Historically, the point is contentious, but vindicated by pre-Act case law: see Paul Roberts and Adrian Zuckerman, Criminal Evidence (1st edn, OUP 2004) 521–2.

In relation to the accused: Criminal Justice Act 2003, s 101; R v Hanson [2005] 2 Cr App R 21, [2005] EWCA Crim 824; R v Campbell (Kenneth) [2007] 1 WLR 2798, [2007] EWCA Crim 1472. In relation to witnesses: Criminal Justice 2003, s 100; R v Jukes [2018] 2 Cr App R 9, [2018] EWCA Crim 176.

Criminal Justice and Public Order Act 1994, ss 34, 36 and 37. For criticism, see Hannah Quirk, ‘Twenty Years On, The Right of Silence and Legal Advice: The Spiralling Costs of Unfair Exchange’ (2013) 64 NILQ 465; Di Birch, ‘Suffering in Silence: A Cost–Benefit Analysis of Section 34 of the Criminal Justice and Public Order Act 1994’ [1999] Crim LR 769.

Miranda v Arizona 384 US 436 (1966); Mitchell v US 119 S Ct 1307 (1999) (affirming ‘The rule against adverse inferences from a defendant’s silence in criminal proceedings’ as constitutionally mandated in all phases of criminal trial).

One might start with H Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (5th edn, OUP 2014); Geoffrey Samuel, An Introduction to Comparative Law Theory and Method (Hart Publishing 2014); Esin Örücü and David Nelken (eds), Comparative Law—A Handbook (Hart Publishing 2007).

Somewhat ironically, in that Wigmore was also a pioneer in comparative legal studies: Annelise Riles, ‘Wigmore’s Treasure Box: Comparative Law in the Era of Information’ (1999) 40 Harv Int’l LJ 221.

Most emphatically in the case of Allen and Pardo’s well-rehearsed showpiece ‘Inference to the Best Explanation, Relative Plausibility, and Probability’, encapsulating a wealth of previous scholarship, including Michael S Pardo and Ronald J Allen, ‘Juridical Proof and the Best Explanation’ (2008) 27 Law and Philosophy 223; Ronald J Allen and Michael S Pardo, ‘The Problematic Value of Mathematical Models of Evidence’ (2007) 36 JLS 107; Ronald J Allen, ‘Factual Ambiguity and A Theory of Evidence’ (1994) 88 Northwestern University Law Review 604.

John D Jackson, ‘Common Law Evidence and the Common Law of Human Rights: Towards a Harmonic Convergence?’ (2019) 27 William & Mary Bill of Rights Journal 689; Dimitrios Giannoulopoulos, Improperly Obtained Evidence in Anglo-American and Continental Law (Hart Publishing 2019).

Yvonne McDermott, Fairness in International Criminal Trials (OUP 2016); Paul Roberts, ‘The Priority of Procedure and the Neglect of Evidence and Proof: Facing Facts in International Criminal Law’ (2015) 13 JICJ 479; John D Jackson and Yassin M Brunger, ‘Fragmentation and Harmonisation in the Development of Evidentiary Practices in International Criminal Tribunals’ in Elies van Sliedregt and Sergey Vasiliev (eds), Pluralism in International Criminal Law (OUP 2014).

Cf Carol Brook and others, ‘A Comparative Examination of Police Interrogation of Criminal Suspects in Australia, Canada, England and Wales, New Zealand, and the United States” (2021) 29 William & Mary Bill of Rights Journal 909.

Paul Roberts, ‘Groundwork for a Jurisprudence of Criminal Procedure’ in RA Duff and Stuart Green (eds), Philosophical Foundations of Criminal Law (OUP 2011).

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Subject Guide

Evidence Law governs the proof of facts in a legal proceeding. It determines what can be considered by trier of fact in reaching its decision. This guide covers the law of evidence in Georgia and at the federal level, with a focus on the most essential sources and strategies. 

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The following treatises are good places to begin your research into Georgia Evidence Law.  Secondary Sources like these describe and explain the law, which makes them an ideal entryway for researching an issue or topic. For a more complete selection of the library's secondary sources on Georgia Evidence Law, check out the tab below. For a look at the library's entire collection of treatises, here's our  Treatise Finder . If these treatises seem too detailed, consider a  legal encyclopedia . For help with secondary sources more generally, check out our  Secondary Sources Guide . If you want an overview for a law school class, study aids  are your best choice. 

The following treatises are good places to begin your research into Federal Evidence Law. Secondary Sources like these describe and explain the law, which makes them an ideal entryway for researching an issue or topic. For a more complete selection of the library's secondary sources on Federal Evidence Law, check out the tab below. For a look at the library's entire collection of treatises, here's our  Treatise Finder . If these treatises seem too detailed, consider a  legal encyclopedia . For help with secondary sources more generally, check out our  Secondary Sources Guide . If you want an overview for a law school class, s tudy aids  are your best choice. 

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Research Paper Topics for Law of Evidence

Research Paper Topics for Law of Evidence- The Law of Evidence is a fundamental pillar of the legal system that governs the admissibility, presentation, and evaluation of evidence in court proceedings. As a multifaceted field, it offers ample opportunities for research and analysis. This article aims to provide a comprehensive list of research paper topics that can delve into various aspects of the Law of Evidence, shedding light on crucial issues, emerging trends, and evolving practices.

• The Admissibility of Digital Evidence: Challenges and Future Implications
• The Role of Expert Witnesses in the Law of Evidence: A Comparative Analysis
• The Impact of DNA Evidence on Criminal Investigations and Courtroom Proceedings
• The Use of Forensic Science in Establishing Identity: A Critical Examination
• The Admissibility and Reliability of Eyewitness Testimony in Criminal Trials
• The Privilege against Self-Incrimination: Balancing Individual Rights and the Interests of Justice
• The Role of Hearsay Evidence in Modern Legal Systems: A Comparative Study
• The Use of Surveillance Technology in Criminal Investigations: Legal and Ethical Considerations
• The Admissibility of Polygraph and Brainwave Technologies as Evidence in Court
• The Intersection of Law and Neuroscience: Implications for the Law of Evidence
• The Impact of Social Media Evidence on Legal Proceedings: Privacy and Authentication Issues
• The Role of Character Evidence in Criminal Trials: Relevance, Admissibility, and Policy Considerations
• The Use of Statistical and Probabilistic Evidence in Court: Challenges and Limitations
• The Admissibility of Confessions and Statements Obtained under Interrogation: The Role of Police Tactics and Human Rights
• The Use of Expert Testimony in Cases of Mental Health and Insanity: Challenges and Best Practices

The Law of Evidence encompasses a wide range of intriguing research topics that delve into the core principles, evolving practices, and contemporary challenges in the field. By exploring these research paper topics, scholars and legal practitioners can contribute to the advancement of evidentiary rules, enhance the administration of justice, and foster a deeper understanding of the intricate dynamics of evidence in legal proceedings.

These topics cover various aspects of the law of evidence and can serve as a starting point for your research paper. Remember to narrow down your focus and tailor the topic to your specific interests or jurisdiction if necessary.

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Science, Evidence, Law, and Justice

The scientific reinvention of forensic science, jonathan j. koehler.

a Northwestern Pritzker School of Law, Chicago, IL 60611

Jennifer L. Mnookin

b Office of the Chancellor, University of Wisconsin-Madison, Madison, WI 53706

Michael J. Saks

c Sandra Day O’Connor College of Law, Arizona State University, Phoenix, AZ 85004

Associated Data

There are no data underlying this work.

Forensic science is undergoing an evolution in which a long-standing “trust the examiner” focus is being replaced by a “trust the scientific method” focus. This shift, which is in progress and still partial, is critical to ensure that the legal system uses forensic information in an accurate and valid way. In this Perspective, we discuss the ways in which the move to a more empirically grounded scientific culture for the forensic sciences impacts testing, error rate analyses, procedural safeguards, and the reporting of forensic results. However, we caution that the ultimate success of this scientific reinvention likely depends on whether the courts begin to engage with forensic science claims in a more rigorous way.

1. The Transformation of Forensic Science

It would be hard to overstate the importance of the transformation that is underway throughout most of the forensic sciences. For much of the 20th century, evidence from a variety of forensic sciences was routinely admitted in state and federal courts with very little scrutiny of whether it had either substantial validity or a genuine scientific foundation. Experts, usually associated with law enforcement and often without any formal scientific training, testified in court to the validity and outsized accuracy of the techniques and their conclusions. Courts admitted their testimony, generally without limitation or careful scrutiny, based on assurances from the forensic science community that the techniques were accurate, effective, and broadly accepted as valid. Assertions unsupported by empirical validation sufficed. The scientific authority of forensic science testimony rarely faced significant challenge from the opposing party, and the occasional challenges that were offered were nearly always unsuccessful.

The story began to change when DNA evidence emerged in the late 1980s and early 1990s. After initial breathless enthusiasm by courts about this transformative new identification technique, highly credentialed scientists identified meaningful concerns regarding how to “translate” laboratory DNA assessments for courtroom use. Several judges excluded DNA evidence to ensure adequate vetting by the scientific community. In the 1990s, scientists from various core disciplines including genetics, statistics, and psychology engaged in lively and sometimes contentious debates in peer-reviewed, scientific journals about the forensic use of DNA profiling, including such matters as population genetics, error rates, standards for defining a DNA match, and communicating the evidentiary meaning of a match. Those debates, and two DNA reports issued by the National Academy of Sciences (NAS), impacted the way DNA evidence was treated in court, creating a greater focus on scientific validity than existed for prior forensic techniques. Also in the 1990s, the Supreme Court decided a trio of critical cases on the use of scientific and other expert evidence in the courts. These cases emphasized that the Federal Rules of Evidence gave judges the responsibility to engage in judicial “gatekeeping” to determine whether that scientific and expert evidence was sufficiently reliable and valid to be admitted in court ( 1 – 3 ).

By the early part of the 21st century, a shift to a more scientific paradigm for the forensic sciences was observable, though still in its infancy ( 4 ). This shift represented a move from a framework of “trusting the examiner” to “trusting the method.” Rather than relying on untested foundational assumptions, and assurances from witnesses that their training and experience makes their confident conclusions accurate and trustworthy, legal scholars, scientists, and some forensic practitioners began endorsing a more scientific model that prioritizes common and detailed protocols, empirical testing, and more moderate, data-driven knowledge claims. Some have hinted that a scientific paradigm shift has already occurred ( 5 , 6 ); others see little evidence of a shift ( 7 ). Most likely, the transformation remains a work in progress: Notable progress has been made on some fronts, but significant concerns remain ( 8 ).

In some areas, when scientific reviews established that available empirical science did not support experts’ claims, entire subfields of forensic science that had contributed to criminal convictions for decades ceased (e.g., bullet lead analysis) or ceased using discredited principles (e.g., fire and arson analysis). In other areas, scrutiny led to reduced credibility and a shift away from exaggerated claims (e.g., microscopic hair analysis). However, other fields, such as bitemark identification, continued despite adverse scientific reviews ( 9 ).

Some forensic subfields, such as single-source DNA identification, survived scientific scrutiny quite well. Latent fingerprint identification, which has been scrutinized more than most other forms of pattern identification evidence, has survived as well, although it has scaled back on its claims in recognition of the role that human factors and subjectivity play in reaching conclusions ( 10 ). Firearms evidence is gaining attention from the scientific community, and weaknesses in its scientific foundation and reporting traditions have been identified ( 11 ).

In what follows, we discuss how the move to a more empirically grounded scientific culture in the forensic sciences impacts testing, error rate analyses, procedural safeguards, and the reporting of results. Whereas there can be no debate that forensic science claims must be grounded in both relevant testing and data, legitimate open questions remain about how best to make the forensic sciences “scientific.” How should errors and mistakes by forensic practitioners be defined and counted? How should conclusions be reported? These questions are currently being discussed and debated by the scientific community. Responsibility for implementing recommendations from the scientific community ultimately rests with the courts. Unfortunately, few courts have undertaken serious gatekeeping of forensic science evidence. We discuss this problem and conclude by examining how to build on institutional and structural opportunities to assure that this vital reinvention of forensic science proceeds.

The shift to a truly scientific framework in the forensic sciences requires attention to empirical testing of the techniques and methods employed under realistic conditions. As PCAST ( 12 ) notes, “Scientific validity and reliability require that a method has been subjected to empirical testing, under conditions appropriate to its intended use, that provides valid estimates of how often the method reaches an incorrect conclusion” (p. 27 and p. 118). Empirical testing is a sine qua non for moving from a “trust the examiner” to a “trust the methods” ethos.

Although scientifically-minded people understand the importance of empirical testing in any scientific endeavor, calls to test the accuracy of forensic science claims are relatively recent. For most of the 20th century, few asked forensic scientists to provide empirical proof that they could do what they claimed. The training, knowledge, and experience of the examiner, coupled with assurances that the method used was generally accepted in the forensic community, were deemed sufficient to admit nearly every forensic science that was proffered in court in the 20th century. Once admitted, forensic scientists commonly offered conclusions with 100% confidence and claimed, with little evidence, a 0% error rate ( 13 ). Although some optional forms of certification existed, little attention was paid to whether, or how, forensic examiners should be required to pass proficiency tests or what those tests should include. Nor did judges require any form of testing or certification as a prerequisite to allowing forensic testimony.

2.1. History.

Most forensic sciences were raised, if not always born, in the world of law enforcement for the purpose of helping police identify criminals. The granddaddy of forensic identification, anthropometry was invented by Alphonse Bertillon in the Paris Prefecture of Police in the 1880s. This technique involved making systematic measurements of bodies of prisoners to assist with their identification at a later date if they were using aliases ( 14 ). Fingerprints soon proved to be a more useful means of identifying criminals, and courts eagerly admitted this evidence without serious inquiry into the scientific underpinnings of the claim that experts could accurately identify the source of partial prints recovered from crime scenes. At no point did the fingerprinting method face the rough-and-tumble questioning of a scientific discipline where everything is questioned and tested, progress is incremental, and cautious, tentative claims are the norm. Over time, other forensic science techniques were invented and introduced on the basis of assurances from practitioners rather than persuasive evidence from rigorous scientific tests.

2.1.1. DNA evidence.

When DNA technology burst onto the legal landscape in the late 1980s—a technology that, unlike most forensic disciplines that came before it, derived from basic scientific disciplines—the broader scientific community took notice. Initially, this impressive technology was received with great enthusiasm. But questions about its courtroom use soon emerged. In People v. Castro ( 15 ), through the involvement of talented defense counsel and distinguished scientists as defense experts, substantial concerns about how laboratory DNA science was being “translated” for courtroom use gained prominence ( 16 ). In the wake of Castro and several cases that followed, the National Research Council of the National Academy of Sciences convened a blue-ribbon committee to examine DNA evidence, and a flurry of additional scientific activity ensued. Geneticists, statisticians, evolutionary biologists, psychologists, and others debated, tested, and wrote about various aspects of this new technique in prestigious scientific journals. It was not forensic science business as usual; this time there would be no deference to authority or to the say-so of a narrowly defined forensic community.

The National Research Council (NRC) ended up writing two reports, four years apart, about DNA evidence ( 17 [NRC I] and 18 [NRC II]). We do not focus on the reports as a whole but limit our attention to their respective treatments of testing in the forensic sciences.

Two types of proficiency tests were needed to legitimate the use of DNA profiling in court. One type of test would address issues that were internal to the forensic sciences. These tests address matters such as whether examiners can follow the protocols for a particular technique and whether different examiners and different laboratories obtain identical (or nearly identical) results on identical samples. A second type of test focused more on matters external to the day-to-day workings of forensic science analyses, such as helping triers of fact assign appropriate weight to DNA evidence. This goal is best accomplished through another type of proficiency test designed specifically to identify accuracy and error rates under various casework-like conditions ( 19 ). As NRC I noted, “Interpretation of DNA typing results depends not only on population genetics, but also on laboratory error” ( 17 , p. 88). This report referenced the results of a DNA proficiency test conducted a few years earlier that identified a false positive error rate of 2%. Noting that some of the early proficiency tests were “less than ideal,” NRC I stressed that for DNA typing, “laboratory error rates must be continually estimated in blind proficiency testing and must be disclosed to juries” ( 17 , p. 89).

This testing recommendation was largely ignored by the forensic science community and the courts. Moreover, some influential forensic science voices actively counseled against error rate testing on the specious grounds that error rates are irrelevant to individual cases because they change over time (testimony from a leading FBI scientist in United States v. Llera Plaza ( 20 , p. 510). At trial, prosecutors argued that the source opinions of DNA examiners were reliable. With few exceptions, trial judges gave little weight to defense arguments that DNA evidence should be limited or excluded when error rate tests had not been performed.

NRC II offered a different perspective on tests designed to measure laboratory error rates than that taken by NRC I. NRC II offered four arguments against performing such tests: 1) error rates are unknowable because they are always in flux, 2) error rates never translate directly into an estimate of error for a given case because each “particular case depends on many variables,” 3) general error rate estimates “penalize the better laboratories,” and 4) an “unrealistically large number of proficiency trials” would be required to obtain reliable error rate estimates ( 18 , p. 85–86). Although these arguments were widely rebutted ( 21 – 23 ), this report stifled calls for empirical testing and made it difficult for defense attorneys to argue that the reliability of any proffered forensic science method is unknowable without such data.

Fourteen years later, yet another National Research Council report was issued ( 24 [NAS]). This report examined a variety of non-DNA forensic science disciplines (latent prints, shoeprints, toolmarks, hair, etc.) and concluded that nearly all had failed to test their fundamental premises and claims. According to NAS, testing requires an “assessment of the accuracy of the conclusions from forensic analyses and the estimation of relevant error rates” ( 24 , p. 122). A follow-up report by the President’s Council of Advisors on Science and Technology (PCAST) argued even more forcefully for empirical error rate testing programs: “Without appropriate estimates of accuracy, an examiner’s statement that two samples are similar—or even indistinguishable—is scientifically meaningless: it has no probative value, and considerable potential for prejudicial impact” ( 12 , p. 6).

We thus see a variety of particularized approaches to proficiency testing in the forensic sciences across blue-ribbon analyses of the topics. Three of the four reports noted above emphasized the importance of proficiency testing and the development of empirically grounded error rates. Although there are challenges to developing meaningful error rates, the program of proficiency testing called for in the PCAST and various NAS reports is an indispensable part of the evolving scientific framework in the forensic sciences. Error rate proficiency tests have now been conducted with forensic examiners in various subfields including latent prints ( 25 , 26 ), firearms and toolmarks ( 27 , 28 ), and footwear ( 29 ). These studies are important steps forward and have prompted interest in how error rates should be computed and reported. A consensus has not yet emerged. Far from signaling a discipline in disarray, ongoing research and sophisticated debates depict a field that is undergoing a scientific transformation.

2.2. Evolving Error Rate Studies.

In the late 1900s, proficiency testing in the forensic sciences focused mainly on the issue of examiner competence. Could the examiner conduct a proper analysis using simple exemplars, and did the conclusions reached by different examiners agree? To the extent error rates were computed from these proficiency tests, it was clear that those rates should be considered with a grain of salt. The study participants were usually volunteers who knew that they were being tested and who may or may not have collaborated with others or otherwise examined the test samples differently than they treat casework samples. The test providers often were not disinterested parties, and the samples used were less challenging than many that appear in actual cases. Although some of these testing problems remain, efforts have been made in recent years to employ realistic samples and to blind examiners to the fact that they are working with test samples rather than casework samples ( 30 , 31 ).

2.3. Inconclusives.

A focus on testing and accuracy raises important correlative questions: Precisely what counts as an error and how should error rates be computed? There is no single “correct” error rate ( 32 , 33 ). False-positive error rates, false-negative error rates, and false discovery rates are all different, legitimate error rates. But even when there is agreement about which error rate is of interest, scientists might not agree about what “counts” as an attempt (or trial) and what “counts” as an error. If examiners always reached either an identification conclusion (i.e., that two patterns derive from the same source) or an exclusion (i.e., they come from different sources) for all sample pairs in a test situation, it would be a simple matter to compute, say, a false-positive error rate. It would be the number of times the examiner reached a “same source” conclusion divided by the number of sample pairs that were known to have been produced by a different source.

But forensic examiners do not always reach a firm binary source decision. Depending on the subfield, they might reach more limited judgments, such as leaning toward identification, high degree of association, association of class characteristics, limited association of class characteristics, inconclusive, indications of nonassociation, and leaning toward exclusion. * We discuss the wisdom of categorical conclusions later. For now, we simply note that error rate computations are not straightforward when an examiner reaches a conclusion other than identification or exclusion for a given paired comparison. Because all pairwise samples are, as a matter of ground truth, either produced by a common source (corresponding to a conclusion of identification) or by different sources (corresponding to a conclusion of exclusion), any conclusion other than identification or exclusion cannot be factually correct. This raises the question: Should conclusions other than identification or exclusion be classified as errors? If not, should these comparisons be included in the error rate denominator?

Some scholars have argued that under particular circumstances, uncertain conclusions (e.g., “inconclusive”) should be scored as correct or incorrect and should be included in error rate computations ( 34 ). According to this argument, inconclusives should be scored as errors when the available information—as judged by qualified experts or by the set of tested examiners themselves in aggregate—suggests that one of the two conclusive decisions could in fact be reached by a competent examiner. Dror ( 35 , pp. 1036–1037) goes so far as to say that, even when an examiner correctly concludes that two samples came from the same source, that decision should be scored as a false-positive error when a panel of experts or group of other examinees regard the comparison to be inconclusive.

Others have argued that inconclusives should not be scored as errors or counted in error rate computations on grounds that when examiners fail to offer a conclusive decision, they are neither wrong nor right because they have not made a claim about the underlying state of nature ( 36 , 37 ). According to this view, neither a panel of independent experts nor a wisdom-of-the-crowd approach provides a dependable gold standard for ascertaining when a pairwise comparison should be deemed inconclusive ( 38 ). Indeed, experts are most likely to disagree with one another on hard cases which, of course, are also the cases where examiners will be tempted to offer an inconclusive decision.

Resolution of this debate is complicated by the practical reality that forensic scientists might be motivated to minimize their reported error rates. If inconclusives are not treated as errors, then examiners might be incentivized to minimize their reported error rates in known test situations by deeming all but the most obvious comparisons inconclusive, even if they might reach a definitive conclusion about many or even most of those same stimuli in real-world casework. Conversely, if inconclusives are treated as errors, examiners might be incentivized to reach conclusions on even the most difficult cases and thereby increase the risk that innocent people are convicted based on faulty forensic science. Misuse of the inconclusive category is likely to be reduced when blind testing is broadly implemented and when examiners provide weight-of-evidence testimony rather than source conclusion testimony. This very debate, and the sophistication of the engagement with this set of questions about measuring error, is a welcome development.

3. Procedural Reforms

For more than a century, the forensic science enterprise in the United States has been controlled and often staffed by law enforcement agencies. This may not be surprising given that police are responsible for investigating crimes, and forensic scientists have the ability to collect and examine evidence in a wide range of cases. But forensic science should not be the exclusive tool of law enforcement for several reasons. First, for the adversary system to work as intended, all parties—including criminal defendants—need to have equal access to forensic science resources. Second, the scientific status of the forensic sciences is compromised by its close association with one side. If crime laboratories are beholden to the needs of law enforcement, they might be discouraged from pursuing scientific investigations that are not aligned with the interests of law enforcement ( 24 , pp. 78–79; 39 , p. 775). Relatedly, if forensic scientists see themselves as working in partnership with police and prosecutors, subtle contextual and cognitive biases might creep into their work at various stages.

3.1. Adversarial Allegiance.

There has long been concern that expert witnesses who are retained by one side or the other in legal cases will, intentionally or unintentionally, slant their conclusions and testimony in favor of the party retaining them ( 40 ). Psychologists theorize that experts see themselves as part of a team and often develop a so-called “myside bias” ( 41 ) or “adversarial allegiance” to their team and teammates ( 42 ). In one controlled experiment, 108 forensic psychologists evaluated the risk posed by certain sex offenders at the request of either the prosecution or the defense. After reviewing and scoring four case files using standard risk-assessment instruments, the psychologists who thought that they had been hired by the prosecution viewed the offenders as posing greater risks than did the psychologists who thought that they had been hired by the defense ( 43 ).

The tendency to favor one’s own side in an adversarial setting is one of many demonstrated psychological influences (or biases) on human judgment and decision. These biases may be perceptual, cognitive, or motivational in nature. Perceptual biases commonly refer to situations in which a person’s expectations, beliefs, or preferences affect their processing of visual stimuli ( 44 ). For example, a latent print examiner might “see” a point of similarity between two prints after having noted several other points of similarity between the prints, whereas another examiner—or even the same examiner—might not see the similarity absent an expectation that the two prints share a common source. Cognitive biases refer to systematic distortions in thinking that occur when people are processing information. Confirmation bias is a well-known cognitive bias in which people seek, interpret, and recall information in ways that tend to confirm their prior beliefs ( 45 ). Motivational biases, such as motivated reasoning, refer to the phenomenon in which our wishes distort our interpretations of events ( 46 ). The significance of these overlapping biases for forensic science work is that they might affect what examiners choose to look at, what they see when they look, and the conclusions that they reach about what they have seen.

Research shows that irrelevant contextual, cognitive, and motivational factors can alter the judgments and decisions of forensic scientists in many areas, including fingerprint ( 47 ), handwriting ( 48 ), firearms ( 49 ), DNA ( 50 ), pathology ( 51 ), forensic anthropology ( 52 ), digital forensics ( 53 ), bloodstain pattern ( 54 ), and forensic odontology ( 55 ). The takeaway point of these studies is not that forensic science evidence is fatally flawed. The point is that forensic scientists, like other scientists ( 56 , 57 ), are subject to potentially significant biases that should be examined empirically and minimized where possible.

3.3. Reforms to Minimize Bias.

Despite the ubiquity of subtle biases in human judgments ( 58 ), people do not readily recognize that their own judgments and decisions could be biased ( 59 ). Unsurprisingly, this reluctance has been observed in the forensic science community. When a small group of psychologists and forensic scientists debated the risk of bias in forensic judgment in a scientific journal in the late 1990s, some forensic scientists argued that their disciplines were objective (hence unbiased) and that potentially biasing information therefore need not be withheld from examiners ( 60 ). Two decades later, a survey of 403 forensic scientists suggested that this view may still be common. Most of the survey respondents did not think that their own judgments were influenced by cognitive bias, and most did not agree that examiners in their domain “should be shielded from irrelevant contextual information” ( 61 , p. 455). Regardless of whether practicing forensic scientists support efforts to guard against unwanted influences, it is incumbent on the broader scientific community to continue researching potential sources of bias and to continue proposing reforms designed to blunt the impact of bias on forensic judgments.

Perhaps the most important reform is blind testing and blind review. Training in most scientific fields includes learning how scientific judgments and choices might be tainted by subtle psychological forces. This problem is best addressed in human research by blinding investigators and participants alike to the participants’ condition (e.g., placebo or treatment). Similarly, in fields that rely heavily on subjective judgments—as many pattern-matching forensic sciences do—it would seem important to prevent analysts from receiving extraneous information that could affect their judgments about the patterns they analyze. In forensic science, blind analysis requires an administrator or case manager to provide examiners with case information on a need-to-know basis. Trace samples recovered from crime scenes (i.e., unknown samples) should be examined thoroughly prior to the introduction of reference samples (i.e., known samples). Knowledge about features of known samples, like knowledge about other aspects of the case, could inadvertently cause an examiner to see features in the unknown sample that are not there or fail to see features that are there ( 17 ).

Similar precautions should be taken for verifiers, i.e., examiners who are called on to provide a second opinion. These examiners should be unaware of their role as verifier of the conclusions offered by another examiner. Such knowledge could create a confirmation bias that affects the verifier’s forensic perceptions and judgments.

Scientists have recommended various blinding procedures for the forensic sciences. These include sequential unmasking ( 62 ), case manager models ( 63 ), and evidence line-ups ( 64 ). Sequential unmasking minimizes bias by blinding examiners to information about known samples until after the examiners have completed an initial review of the unknown samples. Information related to the known samples that is required for the examiner to draw additional conclusions is “unmasked” as needed. Whereas separate analyses of unknown and known samples will generally work well for DNA and fingerprint analysis, a modified version of this procedure is needed for fields such as firearms and handwriting where the known sample provides information needed for a proper examination of the unknown sample. Sequential unmasking has been implemented on occasion in the United States ( 65 ) and is employed as a working standard for fingerprint and DNA evidence at the Netherlands Forensic Institute and at the Dutch National Police for DNA ( 66 ). Recently, extensions of this technique have been proposed ( 67 , 68 ).

The case manager method minimizes bias by assigning a forensic “manager” to interact with investigators and to participate in decisions related to what is tested and how a “blind” examiner conducts those tests. The manager then tells an examiner what to do without revealing other case-relevant (or potentially biasing) information. In evidence line-ups, known reference samples that are not the source of the unknown sample are provided to the examiner at the comparison stage along with a reference sample from the suspected source of the unknown. In the context of an eyewitness lineup, this “filler-control procedure” ( 69 ) purportedly reduces errors that incriminate innocent suspects by spreading the errors among a set of fillers as well as the innocent suspects ( 70 ). This technique, which could be costly to implement broadly ( 69 ), may reduce false positive errors in forensic contexts as well ( 71 ).

Growing attention to bias-reducing reforms, though implemented only to a limited degree thus far, suggests that the forensic sciences are beginning to recognize that examiners may be influenced by irrelevant contextual knowledge. Behavioral science research holds the key to identifying procedural guardrails that should be erected to reduce unintentional bias.

4. Examiners’ Conclusions and Reporting

4.1. categorical reporting..

Forensic scientists in many subfields offer one of three categorical conclusions when comparing an unknown (questioned) sample to a known (reference) sample: exclusion (the paired samples come from different sources), individualization (the paired samples come from the same source), or inconclusive (insufficient basis for excluding or individualizing). Exclusions arise when an examiner determines that there are important identifiable features in one of the samples that are not present in the other sample. That determination is left to the judgment of the individual examiner ( 72 ). When examiners feel that they lack sufficient evidence that two samples come from different sources, they must decide whether there is enough evidence to conclude that the pair come from the same source. An individualization—sometimes referred to as an identification—is a conclusion that a particular item or person is the one and only possible source of an unknown item of forensic evidence. † Despite the long history of reaching individualization conclusions in most forensic sciences, it is an unscientific practice that should be abandoned.

4.2. Individualizations Are Not Scientific.

Individualization has long been central to the forensic science enterprise. ‡ Examiners make individualizations in most of their casework ( 73 ). Until recently, such testimony was routinely offered with “100% certainty” § and assurances of a 0% error rate. ¶ Although vestiges of this type of hyperbole remain, several forensic professional associations now warn their members not to engage in these practices.

However, the individualization claims themselves are nearly as problematic from a scientific standpoint as the exaggerated ways in which those claims are sometimes made. Individualization claims exaggerate what the underlying science can reveal ( 7 , 74 – 76 ). A scientist cannot determine that there is no chance that any object other than a particular known sample could be the source of an unknown sample simply because the known and unknown samples share many features ( 77 ). When forensic scientists offer individualization conclusions, they are merely offering personal speculation that markings on one of the samples that are not shared by the other sample are unimportant for source determination purposes and that they believe that the samples show sufficient similarity to conclude that they share a common source.

4.3. Abandon Source Opinions and Source Probabilities.

The individualization problem cannot be solved by adding a caveat that an individualization is a personal opinion rather than a scientific statement or that it is made to “a reasonable degree of scientific certainty,” as had become common in recent years ( 78 ). An examiner who offers such an opinion would still be engaged in an unwarranted “leap of faith” ( 76 ). Moreover, empirical research shows that such caveats have little impact on the weight that people assign to the forensic testimony ( 79 , 80 ).

Furthermore, if individualization testimony is abandoned, it should not be replaced by a statement that provides an estimate of the probability that the samples in question were produced by a common source. First, most forensic disciplines do not have extensive data on the frequency with which the various markings appear in various populations or statistical models that reveal the frequency with which particular markings appear in particular combinations. Therefore, no scientific basis exists for estimating the chance that observed similarities between items were merely coincidental. Second, even in disciplines where such data have been collected (e.g., DNA) or are being collected (e.g., fingerprints), it would still be inappropriate to use those data to provide source probability estimates. According to Bayesian logic, these estimates require the examiner to take account of the prior probability that the known source is the actual source of the unknown sample before reaching a conclusion about the source probability in question. The prior probability is informed by a variety of nonforensic considerations, including the existence and strength of other evidence in the case that the forensic scientist should not and likely would not know. Even when the forensic scientist does know the nonforensic facts of a case, that knowledge and its corresponding impact on the forensic scientist’s beliefs are not relevant at trial. Instead, jurors’ own prior beliefs about the source of the forensic evidence, based on other evidence in the case, should inform their source probability estimates.

4.4. Provide Weight of the Evidence.

How then should forensic examiners provide information to a factfinder? There is broad agreement in the scientific community that forensic scientists can and should confine their testimony to providing information pertinent to the weight of the forensic evidence ( 81 , 82 ). The question to be addressed is how much support do the results of the forensic analysis provide for the proposition that the unknown and known samples share a common source? Note that this is a different question from how likely it is that the two samples share a common source. Triers of fact should make the latter judgment for themselves by updating their initial beliefs about the common source hypothesis with the additional weight provided by the results of the forensic analysis.

4.4.1. Likelihood ratios.

There is also an emerging consensus in the scientific and statistical communities that likelihood ratios (LRs) are the most appropriate tool for identifying the strength of forensic evidence ( 10 , 83 – 85 ). # In its most common form, the LR measures the strength of support that the forensic findings provide for the hypothesis that two samples share a common source relative to the alternative hypothesis that the two samples do not share a common source. If E denotes the evidence from the forensic analysis and CS denotes the hypothesis that the two samples share a common source, then the LR is P(E|CS)/P(E|-CS). In words, the LR is the probability of obtaining this forensic evidence if the two samples came from a common source divided by the probability of obtaining this evidence if the two samples did not come from a common source.

At an abstract level, the LR is an appealing way to report forensic science evidence. In practice, however, it raises a set of challenges. Aside from a relative dearth of data, a significant obstacle to employing LRs to assess evidentiary weight is that it often is not obvious what values to use for the LR numerator and denominator. Even when LRs are computed using reliable data, human judgment usually plays a significant role. For example, reasonable people might disagree about the size and composition of the reference population used to inform the denominator of the LR. Consequently, the size of the LR may vary, sometimes by orders of magnitude.

Choices related to how to handle the risk of human error can also affect the magnitude of the LR. When the risk of such errors is ignored, LRs may become astronomically large. But when estimates of the rates at which recording errors, mislabeling errors, and sample mix-ups are incorporated into LR computations, the resultant LRs will typically be smaller ( 86 ). Whether the risk of error is expressly included in the LR computation or provided to jurors in some other way, this risk is always present, and it should place an upper limit on the weight assigned to the forensic evidence.

Misinterpretation poses another obstacle to employing LRs to describe the strength of forensic evidence ( 87 ). Studies show that people commonly transpose conditional probabilities and thereby end up treating LRs as posterior odds ratios ( 88 ). That is, rather than using LRs as a measure of the weight of evidence, people mistakenly treat LRs as if they directly answer the question, “What are the odds that these two samples come from a common source?” The error of confusing LRs with posterior odds ratios is committed by laypeople, judges, attorneys, and even the experts who present this evidence at trial.

4.4.2. Verbal scales.

Some scholars have proposed using verbal scales and qualitative expressions to convey forensic conclusions. For example, a popular scale in Europe describes LRs < 10 as providing slight support/limited support for the source proposition, LRs between 10 and 100 as providing moderate support, LRs between 100 and 1,000 as providing moderately strong support, etc. ( 83 , p. 64). This well-intentioned idea should not be implemented absent empirical evidence that people give appropriate weight to the evidence that is described using those qualitative terms. For example, if studies show that people treat, say, a 10,000:1 LR as if it were a 100:1 LR when the term “more likely” is used, then a different qualitative phrase is needed. It is not appropriate to simply assign verbal labels to LRs without knowing how people interpret those labels. Preliminary research suggests that some verbal scale expressions are treated roughly in accordance with their corresponding LRs, but some are not ( 89 ).

Even as the forensic sciences continue to evolve, it will likely take years before conclusory individualizations are replaced by more scientifically justifiable weight-of-evidence measures such as LRs, verbal scales, or some other probabilistic indicator. A recent survey of 301 fingerprint examiners found that 98% of respondents report categorically rather than probabilistically and that a large majority regard probabilistic reporting to be inappropriate ( 90 ). To the extent that examiners in other forensic fields hold similar beliefs—and that prosecutors persuade judges that categorical reporting serves the interests of justice—change may be slow in coming. Further research on how factfinders hear and receive evidence must continue to be a priority.

What role have the courts played in improving the scientific quality of forensic science? How can the courts do better? For centuries, courts have appreciated both the value and risk of inviting expert witnesses to help factfinders find their way to the truth of disputed facts. Where specialized knowledge can cast useful light, it would be foolish to disregard it. On the other hand, parties in our adversarial legal system are motivated to present experts only when their testimony will advance the advocate’s case, regardless of whether their words illuminate underlying truths.

Courts and other rulemaking bodies have developed various legal tests calculated to facilitate the screening of expert evidence. One hundred years ago, in Frye v. United States ( 91 ), a court turned to the intellectual market for guidance. Only those propositions and techniques that had “gained general acceptance in the particular field in which it belongs” would be admissible ( 91 , p. 1014). The Frye test, which has its merits, also exposed the courts to the substantial risk that those who stood to benefit most from the admission of certain types of expert evidence might be called upon to vouch for questionable evidence if the “particular field” was defined too narrowly. Over subsequent decades, judges variously employed the Frye test, related tests, and, often, no test at all to screen experts, including forensic science experts. As noted earlier, many different types of forensic science were admitted based simply on the say-so of the few who practiced the technique at issue.

In 1993, the US Supreme Court held that the Federal Rules of Evidence (promulgated in 1975) did not incorporate Frye’s general acceptance test. Instead, judges must determine whether the methods used by proffered experts were reliable and valid, although the Court held that “general acceptance” could be one element of that inquiry. According to the Court, the “overarching subject” of “[t]he inquiry envisioned by Rule 702 … is the scientific validity and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission” ( 1 pp. 594–595). Daubert’s focus on scientific validity is consistent with efforts to increase a scientific approach within the forensic sciences. However, judges may not have the scientific training necessary to know whether “the principles that underlie a proposed submission” have been adequately tested and validated.

Whether or not this point can serve as explanation or excuse, the fact is that when called on to evaluate the proffers of forensic science, courts have not done well. As NAS observed, “Forensic science professionals have yet to establish either the validity of their approach or the accuracy of their conclusions, and the courts have been utterly ineffective in addressing this problem” ( 24 , p. 53). Rather than engage with the underlying science, most trial judges simply opted to follow past practice and allow proffered forensic science evidence to reach the jury. In the wake of this NAS report, numerous courts made modest gestures toward a more engaged assessment of forensic pattern evidence, limiting it around the edges (i.e., prohibiting claims of zero error rate or 100% certainty) or noting the lack of empirical support with surprise. But nearly all forensic science pattern evidence continued to be admitted.

PCAST sought to help the courts fix this problem by providing specific guidance to the courts for assessing the validity of feature-matching forensic science evidence (e.g., DNA, hair, fingerprints, firearms, toolmarks, and tire tracks). Not surprisingly, the guidance focused on rigorous empirical testing and the estimation of accuracy and error rates for the different methods.

Earlier we noted that several fields of forensic science—including bullet lead comparison, microscopic hair identification, and arson indicators—have been transformed or abolished following serious scientific reviews. Notably, the judicial system did not initiate, and barely even contributed to, these transformations. The courts have not led. Indeed, the courts have often not even followed, as some of these unvalidated techniques continue to be admitted.

Whether the courts will ultimately choose to a) follow the mandates of Daubert and the guidance provided by PCAST, or b) remain “utterly ineffective” at holding the forensic sciences scientifically accountable for their claims, is not yet clear. Although it has been business as usual in most post-PCAST cases, there are some signs of more full-throated, robust engagement, and even occasional exclusions [see, e.g., People of Illinois v. Winfield ( 92 ), excluding firearms evidence].

Thanks to Daubert, Federal Rule of Evidence 702, the 2009 NAS report and the 2016 PCAST report, judges indisputably have both the authority and the tools to insist that forensic evidence has an adequate scientific foundation. But they have only rarely availed themselves of this power. As the primary consumers of forensic science evidence, the courts can hold the forensic science community’s feet to the fire by requiring that expert testimony is backed by “sufficient facts or data” ( 93 ), accompanied by relevant error rates from methodologically sound studies, and presented without exaggeration ( 94 ).

6. Successes and Challenges

The scientific reinvention of forensic science is not an all or nothing concept. Rather, it is a process of gradual and continuing change. The most important element of change currently under way in forensic science is a recognition that a framework of trusting the examiner must give way to one that trusts the empirical science. Although the training, knowledge, and experience of the examiner are important, they will not be enough to sustain the forensic enterprise going forward. Forensic science is becoming an actual science: “The debate and rigor of academic science is now influencing much of forensic science and that is the most significant change from the past” ( 95 ).

Empirical testing has proceeded rapidly in some disciplines, and efforts are under way to measure sample difficulty and to identify statistical models that capture the probative value of forensic evidence. Extreme and unsupportable claims (e.g., 0% error rate and 100% certainty), once widespread, have been rejected by numerous scientific authorities and forensic science associations. Techniques that relied on false assumptions have exited the stage, and others whose validity appears doubtful seem to be headed toward the graveyard of unsupported science as well.

Perhaps the most important institutional step forward thus far has been the creation of national scientific bodies whose purpose is to increase the scientific rigor of the various forensic fields. The Organization of Scientific Area Committees (OSACs)—a complex of interconnected, multispecialty entities operating mainly under the auspices of the National Institute of Standards and Technology—were established in 2014 to do the heavy lifting. These committees, which are composed of more than 800 crime lab examiners, administrators, conventional scientists, and legal experts, create standards which, when fully developed, approved, and published, are available for adoption by individual crime labs. “OSAC-approved standards must have strong scientific foundations so that the methods that practitioners employ are scientifically valid, and the resulting claims are trustworthy” ( 96 ). As of March 2023, there are 97 published standards and 37 proposed for an array of different forensic disciplines. These developments count as successes. Institutions have been built and staffed, and a process is underway.

On the other hand, it is not obvious that the emerging OSAC standards go far enough in terms of ensuring that examiners’ methods are valid and that their claims are trustworthy. Rather than squarely addressing major challenges such as the individualization problem discussed above, many of the standards merely nibble around the less controversial edges. Even if the OSACs do decide to take on the most important forensic challenges, it is crucial that the standards they create be supported by an empirical foundation. But many accepted that forensic techniques remain underresearched. The scientific evolution that we have described would benefit greatly from an overarching research agenda that coordinates both the needs of standards development and the research that gets funded. For example, a gap analysis would reveal the distance between what is believed (assumed) and what has been empirically validated. Research should be aimed at filling the discovered gaps. Unfortunately, as of 2015, a report on the funding of forensic science research found that “such a research agenda has not yet been developed” ( 97 , p. 14). To be sure, such assessments and gap analyses have begun, but they are incomplete and have yet to receive much attention from practitioners or courts.

Even if the OSACs can address these issues, a practical problem remains: The OSACs lack enforcement power. Individual crime labs are free to adopt OSAC standards as they please. Even those labs that do endorse OSAC guidelines may decide to do so only nominally and then fail to incorporate them into day-to-day work.

The solution to this practical problem lies with the courts: If judges refused to admit evidence produced by laboratories that could not demonstrate how, exactly, they have incorporated OSAC guidelines and other scientific recommendations into their work, compliance would be guaranteed. More generally, if judges took seriously their duties under the Daubert line of cases (and state equivalents) and refused to admit insufficiently validated claims, the forensic sciences would adopt scientific practices more quickly and completely. Unfortunately, few courts have been so bold. The scientific advances that have been made are largely due to initiatives by the forensic fields themselves or by the wider scientific community. However, given that most forensic disciplines have ignored calls from the broader scientific community to replace individualizations with a more appropriate weight-of-evidence measure, a push from outside the fields themselves is needed.

In short, although a scientific reinvention of the forensic sciences is underway, its ultimate success is not assured. Its success depends on consistent attention to empirical validation of methods and conclusions and that in turn requires institutional structures that can help make that focus meaningful in courts of law. One such institutional structure was proposed by the NAS report. This report called for the creation of a new federal agency that focused on forensic science. Among other things, this agency, which would operate independently of law enforcement or any other potentially interested party, would be responsible for establishing and enforcing scientific practices in the forensic sciences. Ultimately, however, such an independent agency was not created.

Courts of law provide an alternative institutional structure for advancing the forensic sciences. Although the courts may not seem like an obvious force for advancing a scientific agenda, the expert evidence gate-keeping duties imposed on trial judges by Daubert and the relevant Federal Rule of Evidence, if faithfully followed, will promote a scientific focus and culture within the forensic sciences. To be sure, the courts’ record on this front does not warrant much optimism. But the scientific paradigm is young and there are signs of hope and progress. The future of forensic science is ours to choose.

Author contributions

J.J.K., J.L.M., and M.J.S. wrote the paper.

Competing interests

The authors declare no competing interest.

This article is a PNAS Direct Submission.

* Similarly, examiners are often permitted to conclude that samples are “unsuitable” or “insufficient” for reaching any conclusion.

† For shoeprint evidence, “An identification means the shoe positively made the questioned impression and no other shoe in the world could have made that particular impression” ( 98 , p. 347).

‡ ”The concept of individualization is clearly central to the consideration of physical evidence. Our belief that uniqueness is both attainable and existent is central to our work as forensic scientists” ( 99 , p. 123).

§ ”Latent fingerprint identifications are subject to a standard of 100% certainty” ( 100 , p. 8).

¶ Responding to a question by 60-Minutes interviewer Leslie Stahl, Stephen Meagher, the former head of the FBI’s latent print unit, said that the chance that a reported fingerprint match is in error is “zero” ( 101 ).

# Log-LRs provide equally rigorous measures of probative value.

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Evidence an item or information proffered to make the existence of a  fact  more or less probable. Evidence can take the form of  testimony ,  documents , photographs, videos, voice recordings, DNA testing, or other tangible objects. Courts cannot admit all evidence, as evidence must be  admissible  under that jurisdiction’s rules of evidence (see below) in order to be presented to court. In  federal court , evidence is governed by the  Federal Rules of Evidence .  A court may exclude evidence because it is not  relevant ,  hearsay , or otherwise  inadmissible .  

Rules of evidence are, as the name indicates, the rules by which a court determines what evidence is admissible at trial . In the U.S., federal courts follow the  Federal Rules of Evidence , while state courts generally follow their own rules. See, for example  California's  evidence code,  Indiana's  evidence rules, or  Washington's  evidence rules. State rules of evidence are generally imposed by the state legislature upon the state courts.

In establishing what evidence is admissible, many rules of evidence concentrate first on the relevancy of the offered evidence. See,  for example  Article IV  of the Federal Rules of Evidence. The admissibility of hearsay and oral testimony are addressed under  Article VIII  of the Federal Rules of Evidence. 

Rules of evidence also allocate among the parties the burden of producing evidence and the burden of persuading the court. See, for example  Article III  of the Federal Rules of Evidence or  Division 5  of the California Evidence Code. Privileges are addressed under  Article V  of the Federal Rules of Evidence as well as  Division Eight  of the California Evidence Code. 

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What the data says about crime in the U.S.

A growing share of Americans say reducing crime should be a top priority for the president and Congress to address this year. Around six-in-ten U.S. adults (58%) hold that view today, up from 47% at the beginning of Joe Biden’s presidency in 2021.

We conducted this analysis to learn more about U.S. crime patterns and how those patterns have changed over time.

The analysis relies on statistics published by the FBI, which we accessed through the Crime Data Explorer , and the Bureau of Justice Statistics (BJS), which we accessed through the  National Crime Victimization Survey data analysis tool .

To measure public attitudes about crime in the U.S., we relied on survey data from Pew Research Center and Gallup.

Additional details about each data source, including survey methodologies, are available by following the links in the text of this analysis.

With the issue likely to come up in this year’s presidential election, here’s what we know about crime in the United States, based on the latest available data from the federal government and other sources.

How much crime is there in the U.S.?

It’s difficult to say for certain. The  two primary sources of government crime statistics  – the Federal Bureau of Investigation (FBI) and the Bureau of Justice Statistics (BJS) – paint an incomplete picture.

The FBI publishes  annual data  on crimes that have been reported to law enforcement, but not crimes that haven’t been reported. Historically, the FBI has also only published statistics about a handful of specific violent and property crimes, but not many other types of crime, such as drug crime. And while the FBI’s data is based on information from thousands of federal, state, county, city and other police departments, not all law enforcement agencies participate every year. In 2022, the most recent full year with available statistics, the FBI received data from 83% of participating agencies .

BJS, for its part, tracks crime by fielding a  large annual survey of Americans ages 12 and older and asking them whether they were the victim of certain types of crime in the past six months. One advantage of this approach is that it captures both reported and unreported crimes. But the BJS survey has limitations of its own. Like the FBI, it focuses mainly on a handful of violent and property crimes. And since the BJS data is based on after-the-fact interviews with crime victims, it cannot provide information about one especially high-profile type of offense: murder.

All those caveats aside, looking at the FBI and BJS statistics side-by-side  does  give researchers a good picture of U.S. violent and property crime rates and how they have changed over time. In addition, the FBI is transitioning to a new data collection system – known as the National Incident-Based Reporting System – that eventually will provide national information on a much larger set of crimes , as well as details such as the time and place they occur and the types of weapons involved, if applicable.

Which kinds of crime are most and least common?

Property crime in the U.S. is much more common than violent crime. In 2022, the FBI reported a total of 1,954.4 property crimes per 100,000 people, compared with 380.7 violent crimes per 100,000 people.  

By far the most common form of property crime in 2022 was larceny/theft, followed by motor vehicle theft and burglary. Among violent crimes, aggravated assault was the most common offense, followed by robbery, rape, and murder/nonnegligent manslaughter.

BJS tracks a slightly different set of offenses from the FBI, but it finds the same overall patterns, with theft the most common form of property crime in 2022 and assault the most common form of violent crime.

How have crime rates in the U.S. changed over time?

Both the FBI and BJS data show dramatic declines in U.S. violent and property crime rates since the early 1990s, when crime spiked across much of the nation.

Using the FBI data, the violent crime rate fell 49% between 1993 and 2022, with large decreases in the rates of robbery (-74%), aggravated assault (-39%) and murder/nonnegligent manslaughter (-34%). It’s not possible to calculate the change in the rape rate during this period because the FBI  revised its definition of the offense in 2013 .

The FBI data also shows a 59% reduction in the U.S. property crime rate between 1993 and 2022, with big declines in the rates of burglary (-75%), larceny/theft (-54%) and motor vehicle theft (-53%).

Using the BJS statistics, the declines in the violent and property crime rates are even steeper than those captured in the FBI data. Per BJS, the U.S. violent and property crime rates each fell 71% between 1993 and 2022.

While crime rates have fallen sharply over the long term, the decline hasn’t always been steady. There have been notable increases in certain kinds of crime in some years, including recently.

In 2020, for example, the U.S. murder rate saw its largest single-year increase on record – and by 2022, it remained considerably higher than before the coronavirus pandemic. Preliminary data for 2023, however, suggests that the murder rate fell substantially last year .

How do Americans perceive crime in their country?

Americans tend to believe crime is up, even when official data shows it is down.

In 23 of 27 Gallup surveys conducted since 1993 , at least 60% of U.S. adults have said there is more crime nationally than there was the year before, despite the downward trend in crime rates during most of that period.

While perceptions of rising crime at the national level are common, fewer Americans believe crime is up in their own communities. In every Gallup crime survey since the 1990s, Americans have been much less likely to say crime is up in their area than to say the same about crime nationally.

Public attitudes about crime differ widely by Americans’ party affiliation, race and ethnicity, and other factors . For example, Republicans and Republican-leaning independents are much more likely than Democrats and Democratic leaners to say reducing crime should be a top priority for the president and Congress this year (68% vs. 47%), according to a recent Pew Research Center survey.

How does crime in the U.S. differ by demographic characteristics?

Some groups of Americans are more likely than others to be victims of crime. In the  2022 BJS survey , for example, younger people and those with lower incomes were far more likely to report being the victim of a violent crime than older and higher-income people.

There were no major differences in violent crime victimization rates between male and female respondents or between those who identified as White, Black or Hispanic. But the victimization rate among Asian Americans (a category that includes Native Hawaiians and other Pacific Islanders) was substantially lower than among other racial and ethnic groups.

The same BJS survey asks victims about the demographic characteristics of the offenders in the incidents they experienced.

In 2022, those who are male, younger people and those who are Black accounted for considerably larger shares of perceived offenders in violent incidents than their respective shares of the U.S. population. Men, for instance, accounted for 79% of perceived offenders in violent incidents, compared with 49% of the nation’s 12-and-older population that year. Black Americans accounted for 25% of perceived offenders in violent incidents, about twice their share of the 12-and-older population (12%).

As with all surveys, however, there are several potential sources of error, including the possibility that crime victims’ perceptions about offenders are incorrect.

How does crime in the U.S. differ geographically?

There are big geographic differences in violent and property crime rates.

For example, in 2022, there were more than 700 violent crimes per 100,000 residents in New Mexico and Alaska. That compares with fewer than 200 per 100,000 people in Rhode Island, Connecticut, New Hampshire and Maine, according to the FBI.

The FBI notes that various factors might influence an area’s crime rate, including its population density and economic conditions.

What percentage of crimes are reported to police? What percentage are solved?

Most violent and property crimes in the U.S. are not reported to police, and most of the crimes that  are  reported are not solved.

In its annual survey, BJS asks crime victims whether they reported their crime to police. It found that in 2022, only 41.5% of violent crimes and 31.8% of household property crimes were reported to authorities. BJS notes that there are many reasons why crime might not be reported, including fear of reprisal or of “getting the offender in trouble,” a feeling that police “would not or could not do anything to help,” or a belief that the crime is “a personal issue or too trivial to report.”

Most of the crimes that are reported to police, meanwhile,  are not solved , at least based on an FBI measure known as the clearance rate . That’s the share of cases each year that are closed, or “cleared,” through the arrest, charging and referral of a suspect for prosecution, or due to “exceptional” circumstances such as the death of a suspect or a victim’s refusal to cooperate with a prosecution. In 2022, police nationwide cleared 36.7% of violent crimes that were reported to them and 12.1% of the property crimes that came to their attention.

Which crimes are most likely to be reported to police? Which are most likely to be solved?

Around eight-in-ten motor vehicle thefts (80.9%) were reported to police in 2022, making them by far the most commonly reported property crime tracked by BJS. Household burglaries and trespassing offenses were reported to police at much lower rates (44.9% and 41.2%, respectively), while personal theft/larceny and other types of theft were only reported around a quarter of the time.

Among violent crimes – excluding homicide, which BJS doesn’t track – robbery was the most likely to be reported to law enforcement in 2022 (64.0%). It was followed by aggravated assault (49.9%), simple assault (36.8%) and rape/sexual assault (21.4%).

The list of crimes  cleared  by police in 2022 looks different from the list of crimes reported. Law enforcement officers were generally much more likely to solve violent crimes than property crimes, according to the FBI.

The most frequently solved violent crime tends to be homicide. Police cleared around half of murders and nonnegligent manslaughters (52.3%) in 2022. The clearance rates were lower for aggravated assault (41.4%), rape (26.1%) and robbery (23.2%).

When it comes to property crime, law enforcement agencies cleared 13.0% of burglaries, 12.4% of larcenies/thefts and 9.3% of motor vehicle thefts in 2022.

Are police solving more or fewer crimes than they used to?

Nationwide clearance rates for both violent and property crime are at their lowest levels since at least 1993, the FBI data shows.

Police cleared a little over a third (36.7%) of the violent crimes that came to their attention in 2022, down from nearly half (48.1%) as recently as 2013. During the same period, there were decreases for each of the four types of violent crime the FBI tracks:

• Police cleared 52.3% of reported murders and nonnegligent homicides in 2022, down from 64.1% in 2013.
• They cleared 41.4% of aggravated assaults, down from 57.7%.
• They cleared 26.1% of rapes, down from 40.6%.
• They cleared 23.2% of robberies, down from 29.4%.

The pattern is less pronounced for property crime. Overall, law enforcement agencies cleared 12.1% of reported property crimes in 2022, down from 19.7% in 2013. The clearance rate for burglary didn’t change much, but it fell for larceny/theft (to 12.4% in 2022 from 22.4% in 2013) and motor vehicle theft (to 9.3% from 14.2%).

Note: This is an update of a post originally published on Nov. 20, 2020.

• Criminal Justice

John Gramlich is an associate director at Pew Research Center

8 facts about Black Lives Matter

#blacklivesmatter turns 10, support for the black lives matter movement has dropped considerably from its peak in 2020, fewer than 1% of federal criminal defendants were acquitted in 2022, before release of video showing tyre nichols’ beating, public views of police conduct had improved modestly, most popular.

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Child Tax Benefits and Labor Supply: Evidence from California

The largest tax-based social welfare programs in the US limit their benefits to taxpayers with labor market income. Eliminating these work requirements would better target transfers to the neediest families but risks attenuating tax-based incentives to work. We study changes in labor force participation from the elimination of a work requirement in a tax credit for parents of young children, drawing on quasi-random variation in birth timing and administrative tax records. To do so, we develop and implement a novel approach for selecting an empirical specification to maximize the precision of our estimate. The unique design of the policy along with its subsequent reform allow us to isolate taxpayers' sensitivity to conditioning child tax benefits on work -- the parameter at the center of recent debates about the labor supply consequences of reforming federal tax policy for children. We estimate that eliminating the work requirement causes very few mothers to exit the labor force, with a 95% confidence interval excluding labor supply reductions of one-third of a percentage point or greater. Our results suggest expanding tax benefits for low-income children need not meaningfully reduce labor force participation.

For helpful comments and suggestions, we thank Connor Dowd, Joe Doyle, Kye Lippold, David Lee, Zhuan Pei, and seminar participants at the Upjohn Institute, the University of Wisconsin-Madison, and Rutgers University. Any taxpayer data used in this research was kept in a secured IRS data repository, and all results have been reviewed to ensure that no confidential information is disclosed. The views expressed herein are those of the authors and do not necessarily reflect the views of the U.S. Treasury Department or of the National Bureau of Economic Research.

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Charles M. Stang (from left), Christine Hauskeller, Mason Marks, and Roman Palitsky.

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How to untangle ethics of psychedelics for therapeutic care

Experts from law, philosophy, spiritual care discuss issues surrounding research, safer use, kicking off Divinity School initiative

Samantha Laine Perfas

Harvard Staff Writer

There’s a telling paradox emerging in the world of treatment with psychedelics, according to Christine Hauskeller. In the past, doctors would be concerned if patients said they were hearing voices and seeing spirits. But now, it may be the doctors themselves who are responsible for those hallucinations.

“We use and induce states of what we called ‘madness’ before to cure what we’ve called ‘madness’ before and somehow create health,” said the philosopher with training in sociology and psychology at an April 16 discussion at Swartz Hall. “This is phenomenal.”

Hauskeller spoke at the first event of the  Center for the Study of World Religions’  new psychedelics and ethics initiative, part of the University’s recently launched  Study of Psychedelics in Society and Culture , which seeks to gather scholars and practitioners from different disciplines to discuss the tangle of issues surrounding clinical use of the drugs. In this inaugural session, speakers explored how approaches from law, philosophy, and spiritual care could help better inform ethical research and promote safer use.

“[We’re seeing] an explosion of interest and enthusiasm, but perhaps too little regulation — that’s open for debate — and a fast-moving landscape,” said  Charles Stang , director of the Center for the Study of World Religions. 

“Psychedelic experiences don’t match to psychedelic substances, in not only that the same dose of the same substance doesn’t induce the same effects in different people, or even in the same person twice.” Christine Hauskeller

Hauskeller said that in her view, there are two ways of approaching the study of psychedelics: by substance or experience. Studying the substance is straightforward: quantify dosages, test the chemical makeup, study the effects on different segments of the population. But studying the way patients experience the drug arguably matters more – and is a lot more complicated.

“Psychedelic experiences don’t match to psychedelic substances, in not only that the same dose of the same substance doesn’t induce the same effects in different people, or even in the same person twice,” said Hauskeller. 

Bioethics provides a model for studying ethical questions around research on use. The pillars include promoting the good of society, avoiding harm to patients, and ensuring informed consent, along with fair access and distribution, she said. 

These goals should be kept in mind as the medicalization of psychedelics increases, mass production looms, and financial incentives compete with ethical obligations. Hauskeller cited an example: how to keep treatment financially accessible. One session with psilocybin hallucinogenic mushrooms may cost $2,000, even though “these mushrooms grow basically everywhere.” 

Mason Marks, a visiting professor at Harvard Law School from Florida State University College of Law, teaches a course on psychedelic law. He noted many parts of the legal landscape of using the drugs are largely “uncharted territory,” and informed consent is one area that needs improvement. 

By analyzing publicly available informed consent documents, he found that many psychedelic clinical trials overlooked or underemphasized what he and his colleagues believe are essential elements of informed consent to psychedelic medicine.

“We believe that people should fully understand what they’re getting themselves into.” Mason Marks

“We believe that people should fully understand what they’re getting themselves into,” said Marks, who is also the senior fellow and project lead of the Project on Psychedelics Law and Regulation at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics. 

In many ways, informed consent on psychedelics can follow best practices of other treatments. But psychedelic therapies also present problems that are unique: Adverse effects are often unknown. The prevalence and intensity of certain risks — prolonged side effects, permanent changes to perception, personality changes, altered metaphysical beliefs — require further research, he said. 

Practitioners should be transparent about the risks and potential experiences associated with these treatments, with the goal of limiting patient exploitation or abuse, Marks said.

“In psychedelics, we often talk about these mystical-type experiences as a transformational, transient experience that impart some deep sense of knowledge and having made contact with something real.” Roman Palitsky

Roman Palitsky, an assistant professor and the director of Research Projects in Spiritual Health at Emory University, took a different approach to the ethics of psychedelic treatment. He suggested that using a SERT-based framework — spiritual, existential, religious, theological — would include the kinds of experiences that tend to arise from these treatments. 

“In psychedelics, we often talk about these mystical-type experiences as a transformational, transient experience that impart some deep sense of knowledge and having made contact with something real,” Palitsky said. A SERT framework could include considering the religious or existential beliefs that patients have and how those beliefs overlap with their mental health concerns.

Palitsky mentioned that there are care providers already trained in integrated care: chaplains. They can add a lot to the conversations around incorporating SERT training into psychedelic care, which has a lot of potential to benefit the patient in enormous ways. 

“As a colleague of mine once said, we’re not adding religion here,” he said. “We’re just not taking it out.” 

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New evidence found for Planet 9

by Bob Yirka , Phys.org

A small team of planetary scientists from the California Institute of Technology, Université Côte d'Azur and Southwest Research Institute reports possible new evidence of Planet 9. They have published their paper on the arXiv preprint server, and it has been accepted for publication in The Astrophysical Journal Letters .

In 2015, a pair of astronomers at Caltech found several objects bunched together beyond Neptune's orbit, near the edge of the solar system. The bunching, they theorized, was due to the pull of gravity from an unknown planet—one that later came to be called Planet 9.

Since that time, researchers have found more evidence of the planet, all of it circumstantial. In this new paper, the research team reports what they describe as additional evidence supporting the existence of the planet.

The work involved tracking the movements of long-period objects that cross Neptune's orbit and exhibit irregular movements during their journey. They used these observations to create multiple computer simulations , each depicting different scenarios.

In addition to factoring in the impact of Neptune's gravitational pull , the team also added data to take into account what has come to be known as the galactic tide, a combination of forces exerted by Milky Way objects beyond the solar system.

The research team found that the most plausible explanation for the behavior of the objects was interference from gravity exerted by a large distant planet. Unfortunately, the simulations were not of the type that would allow the research team to identify the location of the planet.

The team acknowledges that other forces could be at play that might explain the behavior that they simulated but suggest they are less likely. They also note that further evidence will become available as the Vera Rubin Observatory in Chile is set to begin operations sometime next year. It will be equipped, they note, to search in new ways for the planet in a rigorous assessment of its existence.

Journal information: Astrophysical Journal Letters , arXiv

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