Evidence-Wellborn SU2006 Outline - Evidence Outline Summer 2006 General History behind the Rules of Evidence ` Early Codifications Prior to the

Evidence Outline: Summer 2006 General History behind the Rules of Evidence: ` 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