"Evidence law is steeped in
the drama of trials. It is critically important for any lawyer who
might ever step foot in a courtroom. And it is just plain
fascinating. For all these reasons, I love teaching the subject,
and most students seem to enjoy learning it.
"But students also tend to
find evidence law difficult. The rules of evidence are notoriously
complicated and confusing. Much of evidence law makes sense only
against the backdrop of Anglo-American trial procedure, with which
law students typically have only limited familiarity. And students
-- like lawyers and judges -- often are puzzled by the very nature
of evidence law: is it statutory, judge-made, or a matter of
applied logic?
"I have tried in this book to
capitalize on the inherent attractions of evidence law and to
minimize its difficulty. Because actual cases are more interesting
and more memorable than made-up problems, the book has more cases
than problems. The cases have been selected to illustrate the
central concepts and controversies of evidence law, not provide
encyclopedic coverage of the subject, and they have been edited
tightly. Problems have been used selectively, sometimes to allow
students to test their understanding of particularly confusing
rules, and sometimes to highlight and to spark reflection about
ambiguities in the rules. Many of the problems are themselves drawn
from real cases. Because the Federal Rules of Evidence provide a
convenient and now pervasive framework for thinking about evidence
law, the structure of the book tracks, wherever possible, the
structure of the federal rules. The major exceptions to the ban on
hearsay, for example, are addressed in the order here as in the
Federal Rules of Evidence. Because the legislative history of the
federal rules, particularly the Advisory Committee's Notes, have
proved so highly influential, the cases are accompanied by edited
excerpts from the Advisory Committee Notes and, where relevant,
congressional reports and floor debates. Because academic
commentary has played such a large role in the development of
evidence law -- and because much of that commentary is so
interesting – I have added excerpts from the writings of a wide
range of scholars. Wigmore and Morgan are here, but so are Mirjan
Damaška and Jennifer Mnookin. These excerpts, too, have been edited
tightly, in part to allow room for multiple perspectives.
"The first chapter of this
book gives students the basic background information they need about
the nature and sources of evidence law and the conventions of
Anglo-American trial practice. I have tried to spell these matters
out as explicitly as possible. After the first chapter, though, I
have kept myself in the background. This is not a treatise. Nor is
it a series of lectures. It is a set of materials designed to
illustrate the chief features of evidence law and to facilitate
lecture and class discussion. I have proceeded on the assumption
that my own students get quite enough of my own views in class, and
that other students probably are more interested in their
instructors' views than in mine.
"The book is designed so
that it can be assigned cover-to-cover in a four-unit course.
The topics are arranged in the order that I cover them when I teach
evidence, but other instructors may choose to vary the sequence.
In view of the steadily increasing importance of scientific
evidence, probabilistic proof, expert testimony, and demonstrative
exhibits, I have included more materials on these topics than
evidence casebooks typically contain. I also have included
readings on certain other topics traditionally slighted in evidence
courses, such as questioning by the judge and by the jury. I
have found that students enjoy studying all of these issues, and I
think they are sufficiently important to warrant the space I have
given them. But instructors who disagree can easily skip those
portions of the book or assign readings from them selectively."
