American jury trials are vanishing. Statistics indicate that the number of jury trials in U.S. federal and state courts has diminished for decades, a phenomenon that has become even more pronounced amid the ongoing COVID-19 pandemic. Courts throughout the nation are on track for more than a year without any trials by jury. But as jury trials wane, bench trials are dominant in federal and state courts for both civil and criminal cases. What does that mean, then, for evidentiary rules? The Federal Rules of Evidence (FRE), first adopted in 1975, codify federal evidence law and have been adopted by the vast majority of states. Technically speaking, these rules apply to both jury and bench trials. However, in practice, trial judges often apply rules of evidence loosely when they sit without a jury. Time and again in bench trials, objections to the admissibility of evidence are met with the judicial response of, “I’ll let it in and just give it the weight it deserves.” In an era when bench trials have become the new normal, such an enormous gap between the law in operation and that in the books suggests the need to reexamine the current arrangement of the FRE, to inquire whether bench trials should have their own customized rules of evidence, and, if so, what those rules should look like. This Article examines the similarities and differences between jury and bench trials in judicial fact-finding and explains why bench trial judges cannot rely on Free Proof and instead still need the guidance of evidence rules—albeit different rules than those used for jury trials. This Article proposes what those rules for bench trials might look like and discusses why and how such a project could go beyond bench trials, making a profound impact globally.

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