Fall 2008 - Evidence- Notes Class

Fall 2008 - Evidence- Notes Class - 8/26/08...

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Unformatted text preview: 8/26/08 Evidence—Class Notes— • Is the law of evidence important? o Yes— it is important in litigation In corporate law— think about one rule of evidence, the attorney- client privilege —it protects a confidential information made for purposes of obtaining legal advice • I need to create a record to ensure when the corporation does things it shouldn’t have done, what the corporation told me is confidential • Black letter law of evidence • Sources of the law of evidence, the legal framework I’m dealing with o 1. Where do rules of evidence come from, the source of evidence? Answer— until the 1970s, it was the common law. With one exception —New Jersey and California—the law of evidence was a common law subject. Which means it was created by courts in the states and in the UK • In the 1970s—the law of evidence was codified by the federal system for the Federal Rules of Evidence • It’s in Appendix A of the textbook • It was enacted in the law by Congress • Rule 101— these rules apply in federal courts and proceedings • Rule 1101— amplifies that • Nothing in those rules says, “these rules apply in state courts” o They don’t apply in state courts, only in federal courts and in certain federal agencies • The vast majority of law suits are brought in state court—rather and have adopted codes similar to the federal rules of evidence, they are very similar Exceptions— California has its own evidence code, it was enacted in law in 1967. The federal rules were based on the California Evidence code, it’s more detailed than the federal rules— but it’s very similar in spirit and philosophy • New York—has not codified its law of evidence. It has common law rules of evidence. If I’m litigating in New York state, I have to think about common law • A few states haven’t formally codified their rules of evidence, but have informally done so by judicial opinion. CT and MA • The federal rules of evidence in New York codify the common law. In New York, the common law will usually say the same thing the federal rules say In New York—I can cite the federal rules of evidence as persuasive authority • It is used as influence o There’s a lot of uniformity in the law of evidence around the country One exception— privileges , they protect certain kinds of confidential communications (between marital partners, attorney and client). Under federal law, they are recognized. The state law and federal law has a lot of differences. Furthermore, there’s a lot of differences between the states o 2. Where can I find rules of evidence and principles? Answer— in the textbook o These are 2 different questions • The procedures at trial for proof—(p. 7-18)— o Opening statements and closing arguments They are made by trial counsel. Witnesses don’t participate in this The lawyers talk about evidence The opening and closing look similar • Difference— the closing statement is where the author becomes...
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This note was uploaded on 01/31/2010 for the course LAW 7330 taught by Professor Lushing during the Fall '05 term at Yeshiva.

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Fall 2008 - Evidence- Notes Class - 8/26/08...

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