Document Type


Publication Title

Vanderbilt L. Rev.



Publication Date



evidence, bench trials, factfinding, courts, rules of evidence


Should the Federal Rules of Evidence apply at bench trials? By their own terms, they apply, but courts have been reluctant to enforce them on themselves with the same rigor that they enforce them on juries. Scholarship on the issue has been mixed. Although McCormick deemed the rules of evidence "absurdly inappropriate" outside of the jury context, more recently, scholars have suggested that many reasons for imposing exclusionary rules on jurors also apply to judges. Yet practical problems persist. For one, once judge evaluate the admissibility of evidence, they can’t “unring the bell” and ignore evidence they've decided to exclude. And ruling on evidentiary motions at trial can take a judge's focus away from the important task of factfinding.

In this contribution to the Vanderbilt Law Review's Symposium on Reimagining the Rules of Evidence at 50, I propose that we can do better than the status quo. I suggest that we amend the Federal Rules (1) to more explicitly require judges to rule on the admissibility of evidence at bench trials, (2) to permit them to reserve ruling on motions that arise at trial, while requiring them to resolve motions in limine before trial, and (3) to create a system of bifurcation for only the most harmful evidence that relies on the judges who already often partner with district judges: magistrate judges. I argue that this system will allow the purposes of the rules to be (mostly) satisfied, with (sufficiently) little increased cost and administrative hassle and minimal (enough) interference with the judge’s factfinding process.

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