Evidence-Wellborn SU2006 Outline - Evidence Outline Summer...

Evidence Outline:
Summer 2006
General History behind the Rules of Evidence:
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Early Codifications:
• Prior to the mid-1970’s pretty much all evidentiary rules were judge – made; they were a product of the common law.
• Early effort to codify the rules of evidence, the ALI’s 1942 Model Code of Evidence, was not adopted anywhere.
• Similarly, the Uniform Rules of Evidence, drafted by the Commissioners on Uniform State Laws and published in
1954, were influential but adopted in only a few jurisdictions.
Present Codes:
•
United States Supreme Court developed rules of evidence for use in the federal courts  Federal Rules of Evidence
• The rules were substantially revised and then adopted by Congress, effective July 1, 1975
o Normally when US court promulgates rules of procedure under the REA they have to send them to Congress
and then if Congress doesn’t intervene within 6 months, they are made into law. (So long as the rules do not
abridge, enlarge, or modify any substantive right of any litigant)
o Congress rarely uses the power, but in the case of evidence, Congress exercised its authority to forestall the
rules promulgated by the Court.
o House wanted liberal rules, Senate wanted conservative rules…liked what the advisory committee did.
o Ended up with two bills and then had to compromise!!

Middlegroud sometimes resulted in a rule that was not a rule that any would want; not a rule that
any rational person would support!
• Most states have now adopted evidence codes using the federal code as a model.
o Texas had a bifurcation of evidence doctrine depending on whether you were dealing with a civil or a
criminal case:
 Texas Rules of Civil Evidence adopted in 1983
 Texas Rules of Criminal Evidence adopted in 1986

These two rules merged in the late 90’s  Note: Wellborn thinks the merger was a bad idea!
What Went into the Codes?
• Basically a codification of existing common law evidentiary principles.
•
Every re-writing or reform in evidence law has tended to move towards more admissibility – less technicality, less
restriction  LET THE LIGHT COME IN!
o In civil cases, greater admissibility is a bit of a standoff (Ex: Poor plaintiff versus corporate defendant in tort
case)
 Plaintiff has burden therefore more admissibility is good for plaintiffs.
 Defense has more resources, therefore more admissibility is good for defendants.
o In criminal cases, greater admissibility disfavors the defendant.
 Plaintiff has the burden and normally has the resources as well.
 Exceptions: Rare instances where defendants have ample resources (OJ Simpson, Michael Jackson,
Enron etc.)
General Principles:
• If state law applies – apply state rules of evidence
• If federal law applies – apply federal rules of evidence
Chapter One: Relevancy
RELEVANCY – Article IV

Note: Relevancy is the most foundational concept of evidence law.