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

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Relevancy is the most foundational concept of evidence law.


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- Summer '08
- Wellborn
- Common Law, The Bible, The Land, Evidence law
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