§ 1.01 Introduction [1]

 

The rules of evidence govern how we go about the task of attempting to determine at trial what occurred in the past, often under circumstances of uncertainty.

 

§ 1.02  Proof at Trial [1-4]

 

In the common law system, proof typically comes in the form of witness testimony –  testimonial proof.   Proof may also consist of documentary evidence (e.g., written contract) or "real" evidence (e.g., murder weapon).  Photographs, models, blackboards, and charts may be used to illustrate testimony – demonstrative evidence.  In some cases, a witness may exhibit a scar or amputated arm to show the jury the result of an accident (in-court exhibition), or, perhaps show how she can no longer walk without a limp (in-court demonstration). 

 

§ 1.03  Law of Evidence  [4-8]

 

Evidence law may be divided into three major categories:  (1) rules governing the substantive content of evidence, (2) rules governing witnesses, and (3) substitutes for evidence.

 

           [A]    Rules Governing the Content of Evidence  

           [1]    Relevance Rules

                    Character evidence

                    Other acts evidence

                    Habit evidence

                    Insurance evidence

           [2]     Competence Rules

                     [a]    Rules Based on Reliability Concerns

                  Hearsay rule “Best evidence” rule

                     [b]     Rules Based on External Policies

                  Privileges (e.g., attorney-client)

                  Quasi privileges (e.g., subsequent remedial measures)

           [B]    Rules Governing Witnesses

           [1]     Competency of Witnesses

           [2]     Examination of Witnesses

           [3]     Types of Witnesses 

                     [a]     Lay Witnesses

                     [b]     Expert Witnesses

           [4]     Credibility of Witnesses

           [C]    Substitutes For Evidence

                   Judicial notice of fact

                   Stipulations of fact

 

§ 1.04 Federal Rules of Evidence  [8-10]

 

The Federal Rules of Evidence were enacted in 1975.  As a federal statute not intended to preempt state law, the Federal Rules are not binding on the states.

 

§ 1.05  State Adoptions of the Federal Rules [10]

 

Over forty jurisdictions, including the military, have rules patterned on the Federal Rules.

 

§ 1.06 Interpreting the Federal Rules: The “Plain Meaning” Debate  [11-13]

 

The Supreme Court has often, but not always, espoused an almost mechanical “plain meaning” approach in construing the Rules of Evidence, treating the Federal Rules as any other statute.  In one case, the Court wrote:  “We interpret the legislatively enacted Federal Rules of Evidence as we would any statute.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587 (1993).

 

§ 1.07 Themes in the Federal Rules  [13-14]

 

The paramount goal of a trial is truth-seeking, but that is not the only goal. The law of privileges, for example, precludes the admissibility of evidence that may be both relevant and reliable. Moreover, even when the ascertainment of truth is the goal, how to achieve that goal is often a matter about which reasonable people may disagree. Here, the federal drafters adopted several guiding principles. First, the Federal Rules are biased in favor of admissibility, which implicitly endorses jury competence. Another theme is judicial discretion. Although many trial lawyers prefer fixed rules, which they argue are predictable, the drafters believed that too many issues arise that cannot be anticipated, and therefore the trial judge must be given some leeway to shape the rules of evidence to deal with such contingencies.

 

§ 1.08 Criminal & Civil Trials [14-15]

 

The Rules of Evidence apply to both criminal and civil cases.  Nevertheless, a number of rules recognize a distinction between civil and criminal trials – explicitly or by implication.  Similarly, a number of rules, due to their subject matter, apply only in civil cases – for example, Rule 407 (subsequent remedial measures) and Rule 411 (liability insurance).  Further differences in applicability in criminal and civil proceedings arise because the Rules of Evidence generally do not codify constitutional principles.