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156 U. Pa. L. Rev. PENNumbra 1 (2007-2008)

handle is hein.journals/pennumbra156 and id is 1 raw text is: ON THE SUPPOSED EXPERTISE OFJUDGES IN EVALUATING EVIDENCE BARBARA A. SPELLMANt In response to Frederick Schauer, On the Supposed Jury-Dependence of Evidence Law, 155 U. PA. L. REV. 165 (2006). From way down in the dirty depths, where those of us who collect empirical data dwell unobserved and largely ignored by most legal academics,' it is refreshing to hear a call for more data from legal scholars such as Fred Schauer. In asking whether it makes sense to follow the existing trend of discarding much of evidence law when judges-rather than juries-are the fact-finders at trial, lie notes that the empirical literature involving judges' reasoning is sparse and the literature comparing judges with jurors is even sparser. In order to determine whether judges are better than jurors at weighting4 evi- dence and fact-finding, as many appear to believe,: he wishes for more and more focused research. t Associate Professor of Psychology, University of Virginia. Ph.D. 1993, University of California, Los Angeles. J.D. 1982, New York University School of Law. B.A. 1979 Wesleyan University. However, the times might be a-changin'. Witness the new.Jounal qf Etmpiical Legal Studies, its associated annual conference, and the increasing number of J.D./Ph.D.'s on the faculties of major law schools. Schauer, himself, seems to have turned the corner; see his call for the greater use of data in Frederick Schauer, Foe- word: The Coud' Agenda -And the Nation's, 120 HARv. L. RnV. 4, 14 & n.31 (2006). See Frederick Schauer, On the Supposed juy I)epetdetice qf'Evidence Law, 155 U. PA. L. REv. 165, 187-189 (2006) (expressing the need for more experiments on judge and jury behavior). 3 Id. 4I use the term weighting evidence to indicate the consideration of how much value to place on an individual piece of evidence. I use the term weighing evidence to indicate the balancing of evidence from both sides when trying to reach a conchl- sion. 5 See Schauer, supra note 2, at 188 (noting the popular belief). But see Paul H. Robinson & Barbara A. Spellman, Senlencing Decisions: Mlalching the Decisionmaker to the Decision Nature, 105 COLUM. L. REV. 1124, 1138-46 (2005) (arguing that given the un-