Legal scholarship has long treated substantive criminal law and evidence as two separate and distinct fields. The former largely concerns itself with evaluating substantive criminal law rules by reference to various animating theories—most prominently, those of deterrence and retributivism.1 Scholars, students, and policymakers laud or condemn doctrines based on notions of “just deserts” or ideas about the incentives they create for those disposed to commit a crime. When it comes to the numerous evidentiary and other rules that determine the course of prosecutions and proof, however, the conversation is different. Here, questions of reliability, evidential worth, and accuracy in fact-finding dominate the debate. References to the deeper concerns of deterrence and retributivism, and the significance of various evidentiary and procedural rules toward the program of one or the other, are by and large absent.

Our article “Mediating Rules in Criminal Law”2 challenges this conventional divide between evidence and substantive criminal law theory. Our claim is that the traditional understanding of evidentiary rules in criminal law as geared overwhelmingly to truth in fact-finding is incomplete. Evidentiary rules, we argue, also perform a deeper, systemic function by mediating latent conflicts between criminal law’s deterrence and retributivist objectives. They do this by skewing errors in the application of the substantive law to favor whichever theory has been disfavored by the substantive rule itself. So, for example, if retributivism dominates the substantive law of insanity, special evidentiary rules governing the presentation and proof of that defense might cabin it in a way that responds to deterrence concerns by making it more difficult to invoke successfully. These “mediating rules” of evidence do this, moreover, without undercutting retributivist objectives as significantly as would redrawing the substantive defense itself. How is this so? In the next few pages, we will sketch the outlines of our theory and offer a brief illustration.

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Before offering a few thoughts about Professors Richard Bierschbach and Alex Stein’s “Mediating Rules in Criminal Law,” I would like to highlight just two of the several significant contributions it makes to the criminal law literature.1 First, it both spotlights and combats the tendency of theoretical work in criminal law, particularly work in the retributivist camp, to focus on certain criminal justice issues at the expense of others. Such work typically orients itself toward (admittedly crucial) questions about the proper justification, scope, and amount of punishment in the abstract, while giving significantly less consideration to the various institutional and procedural aspects of any concrete system of imposing such punishment. Even if the substantive punishment rules were perfect, their implementation in any real world scheme would involve compromises, if not outright distortions. Too little attention is paid to the translation of principle into practice, and Bierschbach and Stein’s article is a welcome effort to bridge that gap.2

A second and related strength of the article is that by widening the scope of analysis, it expands the sense of what tools can be used, singly or in combination, to achieve fundamental criminal justice goals. Noting the dynamic interaction between substance and evidentiary rules might facilitate the proactive use of what they call “mediation” as an alternative, as well as perhaps subtler or more nuanced means of advancing substantive goals. For example, all too often the perceived “solution” to the problem of an offense being—or seeming—underinclusive (in either deterrent or desert-based terms) is simply to enact another offense designed to make up the shortfall. That method of remedying the problem, however, can itself introduce new problems of application, interpretation, and possible excessiveness in the scope or amount of punishment.3 More broadly, it is unavoidably difficult—and perhaps impossible as to some questions—to craft substantive rules of general application that will perfectly capture all the cases suitable for punishment and no others. How nice it is, then, to recognize the option of tailoring evidentiary rules in ways that might correct for some of the excesses or shortcomings of the rules in specific cases, thereby overcoming some of the inevitable inadequacies of law or language. Notably, the possible benefits of such tailoring are not limited to its potential to mediate between deterrence and desert (the article’s focus). Rather, it also might improve the system’s ability to advance either of those goals in isolation—perhaps to “mediate” between the dictates of desert or deterrence in an ideal world and the budgetary or fact-gathering limitations of the real one.

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Professors Bierschbach and Stein’s observation that evidentiary rules mediate the age-old tension between retribution and deterrence is both fascinating and thought provoking.1 The idea that the two hitherto balkanized fields are inextricably linked in this quirky but productive way is surely an impressive insight that will force criminal law and evidence scholars never again to look at their respective fields in quite the same way. In this Response, I want to focus on the broader normative question raised by their thesis—whether the legal system should use evidentiary rules to achieve substantive reform. Conveniently for me, I can leave the task of probing the relationship between the Bierschbach-Stein thesis and general criminal law theory to more qualified scholars, like my colleague Professor Mike Cahill.2

So “[a]re mediating rules a virtue or a vice?”3 On this question, Bierschbach and Stein are nominally agnostic. For example, careful not to overstate their case, they acknowledge that such special evidentiary rules “might . . . be seen as illegitimately thwarting the accepted processes for resolving political agreement.”3 Put plainly, they recognize that evidentiary rules so conceived can become Trojan horses. The overall tenor of their essay4 and longer article, however, takes a somewhat rosier view. They emphasize the ability of mediating rules to facilitate compromise and “promote a rough social consensus around criminal law in a moral universe that is diverse and pluralistic.”5

I am far more skeptical. The use of evidentiary rules to achieve substantive goals strikes me as a Faustian bargain, and, given Bierschbach and Stein’s acknowledgedly tentative position, I hope to dissuade them of the virtues of the practice. My goal therefore is to explore briefly the potential dark side of specialized evidentiary rules. The concerns of injecting substantive goals into evidence law extend far beyond the narrow legitimacy concerns Bierschbach and Stein raise. It is not simply the question of whether we aspire to a pluralistic or majority-take-all democratic society.6 Rather, evidentiary manipulation threatens the legitimacy of criminal and evidence law.

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