[© 2003 Aspen Publishers, Inc.]
"The
Law of Evidence, which I now propose to investigate, is also one of
the landmarks of civilization which it is impossible for the
philosophical inquirer to overlook."
John George Phillimore,
The History and Principles of the Law of Evidence as Illustrating Our
Social Progress (1850).
"[T]he system, taken in
the aggregate, is repugnant to the ends of justice; and . . . this is
true of almost every rule that has ever been laid down on the subject
of evidence."
Jeremy Bentham,
Rationale of Judicial Evidence (1827).
"Nobody
can fairly pretend to make the Anglo-American law of evidence easy,
because it is essentially very difficult."
John MacArthur Maguire,
Evidence: Common Sense and Common Law (1947).
"[F]oreigners
complain that its doctrines and practices are arcane and that they
deviate too far from ordinary modes of investigating facts. But even
in these laments there is a soupçon of uneasy respect for the exotic
charms of the common law."
Mirjan
R. Damaška, Evidence Law Adrift (1997).
A.
GOOD NEWS AND BAD NEWS
Foreigners are not the only
ones intrigued by the Anglo-American law of evidence. Every night on
television screens across the nation, fictional lawyers squabble over
arcane rules of proof, captivating viewers who may never have dreamed
of attending law school. Contributory negligence and implied
warranties rarely surface in prime time, but hearsay doctrine and
testimonial privileges come up all the time. Evidence law is a
fixture of popular culture.
And for excellent reason.
The rules of evidence dictate how and when facts may be proved or
disproved at a trial. They regulate, that is to say, our most
dramatic and most heavily ritualized process for untangling human
affairs gone wrong -- a process to which many lawyers happily devote
much of their careers. Evidence law constitutes the end product of
centuries of effort to make that process as fair, as accurate, and as
conclusive as possible. Opinions differ regarding the success of
those efforts. But as social artifacts alone the rules of evidence
hold a lasting fascination.
For lawyers, of course, the
interest is more than academic. The rules of evidence are the nuts
and bolts of courtroom work. Mastering them hardly turns a student
into a skilled trial lawyer. That takes a good deal more. But
without a basic knowledge of evidence law, lawyers cannot even begin
to find their way around a courtroom.
Not all lawyers try cases.
But all lawyers need familiarity with the rules of evidence, and not
just to pass the bar exam. Litigators, even if they are not trial
lawyers, need to understand what happens if a case goes to trial. And
every lawyer, even one who never litigates, works in the shadow of
litigation. All effective legal work is informed in part by the
contingency of litigation, the contingency of litigation is in part
the contingency of trial, and the contingency of trial is strongly
shaped by evidence law.
Then, too, careers in the
law often take unexpected turns. It always pays to be prepared.
Trial work is undeniably exciting, and even lawyers who plan never to
see the inside of a courtroom can wind up trying cases and enjoying
it. It happened, for example, to the author of this book.
The rules of evidence are
thus critically important, particularly for lawyers, and of
extraordinary intellectual interest. They may not be "impossible for
the philosophical inquirer to overlook," but they amply reward study.
And evidence cases be can entertaining, too. They are rooted, after
all, in the drama of the courtroom. For all these reasons, few
students find evidence law boring, and many greatly enjoy learning it.
That is the good news.
Now for the bad news.
Evidence has a reputation as a particularly challenging class, and the
reputation is not entirely undeserved. Several features of evidence
law can make it difficult to study. The student might as well know
about them from the start.
First, evidence law often
operates in technical and counterintuitive ways. Some evidence
doctrines do take the mushy form familiar to the student from other
law courses: "do X when it is sensible." But many other rules of
evidence are considerably more complicated, and they often produce
surprising results. The hearsay rule, in particular, can make even
treacherous doctrines like the rule against perpetuities look
commonsensical by comparison. (That is one reason why the hearsay
chapter is by far the longest chapter in this book.)
Second, the rules of
evidence frequently cannot be applied without reference to the
substantive law governing a particular dispute -- the law of
contracts, torts, property, or crimes. The student of evidence
typically has already studied these areas of the law, but his or her
knowledge may be rusty or incomplete. This can make it difficult to
follow the application of evidence law to specific fact patterns,
either real or hypothetical.
Third, there is the
terminology. All fields of law employ specialized vocabularies.
Evidence law is not unusual in this respect. But the specialized
vocabulary of evidence law is particularly large, and the same word or
phrase often has two or three completely different meanings. Even the
most basic terms of evidence law -- terms like "relevant,"
"competent," "collateral," or "in issue" -- sometimes show a maddening
slipperiness. Lawyers and judges talking about evidence law sometimes
use these terms in their ordinary, everyday senses, and sometimes use
them in narrower, more technical ways. It can be hard to keep the
definitions straight.
Fourth, beyond matters of
terminology, the nature of evidence law itself can seem slippery. As
perhaps with criminal law, the student of evidence often may be unsure
exactly what he or she is studying. What exactly is evidence
law? Is it a set of common law doctrines? Statutory rules?
Constitutional dictates? Applied logic? A few decades ago this kind
of confusion was less likely. Evidence law was almost entirely
judge-made and operated within few constitutional constraints. Since
then the constitutional constraints have increased, but not by much.
The larger change has been the advent of modern codes of evidence.
Following years of study, California enacted a comprehensive and
influential code of evidence rules in 1965. That same year, an
Advisory Committee of judges, lawyers, and law professors appointed by
the Supreme Court began drafting federal rules of evidence, much as
similar committees earlier had worked out the Federal Rules of Civil
Procedure and the Federal Rules of Criminal Procedure. The result was
the Federal Rules of Evidence, which were endorsed by the Supreme
Court in 1972, enacted by Congress (with significant amendments) in
1974, and signed into law in 1975. Most states now have evidence
codes modeled closely on the federal rules. California has retained
its own code, though, and in a few states -- New York, for example --
evidence law remains uncodified.
Students of evidence law can
therefore feel at sea regarding what they should be learning,
particularly if they plan to practice in a state, like California or
New York, that does not have an evidence code tracking the Federal
Rules of Evidence. Should they concentrate on the federal rules,
which have become so widely influential? Should they focus on the
common law doctrines those rules codify? Should they pay greatest
attention to the rules in their own state?
Nor is this all. For
reasons to be discussed later in this chapter, most questions
regarding the admissibility of evidence are resolved by trial judges
without written opinions, and appellate reversals of these decisions
are relatively rare. Many evidence rules expressly vest broad
discretion in trial judges to admit or exclude evidence, and even when
appellate judges conclude that a trial judge erred, they frequently
deem the error harmless. Therefore the law on the books often matters
less than the law as trial judges apply it. As Professor Maguire put
it, "evidence is essentially a matter to be threshed out between
counsel and judge in the trial court. The wheat stays there; what
goes up in the appellate record seems pretty much chaff." What then,
should the student of evidence study: what appellate courts say, or
how trial courts act?
There
is a fifth and final reason why evidence law can be particularly hard
to learn. The rules of evidence operate against the backdrop of a
more basic set of rules regarding the structure of the Anglo-American
trial: rules about the sequence of proof, when and how the lawyers
may address the jury, and so on. These rules are matters more of
convention than of law, and they have remained largely uncodified.
The rules of evidence, and cases applying those rules, often assume
familiarity with these conventions without explaining them. This is
fine for the principal users of evidence law, trial judges and trial
lawyers. They know how trials are conducted. But students of
evidence law typically have not had a separate course in trial
procedures. They have a rough acquaintance with trials: they have
read about them and have seen them dramatized. But without a somewhat
firmer grasp of Anglo-American trial conventions, the rules of
evidence can be hard to decipher.
Now for more good news. The
special difficulties surrounding the study of evidence are
surmountable, particularly when they are recognized from the outset.
Evidence law is easier to learn for students who expect it sometimes
to operate in technical and counterintuitive ways; who understand that
evidence rules often cannot be applied without reference to the
substantive law of contracts, torts, property and crimes; and who are
on the lookout for terms with multiple definitions. This is why these
sources of confusion have been described at the very beginning of this
book. Forewarned is forearmed.
The
student can do even more to guard against the remaining difficulties
associated with evidence law -- confusion about precisely what to
study, and ignorance of Anglo-American trial conventions. He or
she can finish reading this chapter. Evidence instructors
generally provide their own guidance regarding where students should
focus their attention, but following that guidance -- or making one's
way without it -- requires a certain basic comprehension of the nature
and development of evidence law. And it helps also to
understand, at the outset, the rudimentary conventions of
Anglo-American trials, as well as certain implications of those
conventions. The remainder of this chapter takes up each of
these matters.
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