Article
Overhauling Rules of Evidence in Pro Se Courts
U. Rich. L. Rev.
(2022)
Abstract
Evidentiary rules need to change in pro se courts. The vast majority of trial-level determinations occur in state courts applying what is often a replica of the Federal Rules of Evidence with slight variations. These overly-complex rules of evidence – what Justice Jackson called a “grotesque structure” – assume the presence of counsel in trials and are designed for use by attorneys. That assumption does not bear out in pro se courts hearing family law, domestic violence, landlord-tenant, and small claims cases, where the vast majority of litigants are unrepresented. Existing codes of evidence in pro se courts have a negative impact on pro se litigants appearing in those courts, who typically struggle to understand and apply the rules of evidence. This has a concrete impact on case outcomes, on consistency among coordinate courts, on substantive rights, and on litigants’ belief in a fair civil legal system.
I view this problem through the dual lenses of procedural justice and access to justice. Specifically, I argue that rules of evidence – and, indeed, all rules of procedure governing proceedings in pro se courts – should work not only to promote efficiency and accuracy but also to enhance litigants’ subjective experience of justice. An overview of the goals animating the rules of evidence shows that those goals are not met by the rules in their current form. I argue that well-intentioned legal principles, meant to ensure procedural fairness and veracity of the factual record, must be applied in the particular context of primarily pro se dockets.
In this article, I call for an overhaul of evidentiary rules in pro se courts. Rulemakers must evaluate how to simplify evidentiary standards, expand the role of judges in explaining and administering evidentiary policy, and keep at the forefront the goal of achieving fair and just outcomes. In sum, I argue that relaxing evidentiary rules will encourage the consideration of more reliable evidence, increase litigant satisfaction in the fairness of the legal process, and, thereby, increase access to justice for pro se folks.
Keywords
- evidence,
- rules of evidence,
- access to justice,
- pro se courts
Disciplines
Publication Date
2022
Citation Information
Andrew Budzinski. "Overhauling Rules of Evidence in Pro Se Courts" U. Rich. L. Rev. Vol. 56 (2022) p. 1075 Available at: http://works.bepress.com/andrew-budzinski/2/