background evidence

Where do authoritative black-letter evidence rules and principles come from? Where can you find such rules and principles?

Answer: Your main source of black letter evidence law and principles can and should be your course book, your “casebook,” and Spindle Law.

The course book, or casebook, is fairly traditional, it's fairly orthodox: i.e., it gives you (by and large) the received wisdom about the purposes of black-letter evidence rules and principles; by and large, it gives you the generally-accepted rationales for the rules that you will study.

Second question:

B. What is the source of the the black-letter rules and principles that are summarized in your course book? How can you verify the accuracy of the summaries of the law in your course book?

Until about the 1970s the answer was that you had to look mainly to judicial decisions. That's because until the mid-1970s the law of evidence almost everywhere was mostly a common law subject; generally speaking, only courts created and modified the rules of evidence.

However, as you can already see, your course book focuses on a codification of the law of evidence, it focuses on a code. The code that lies at the center of the book is called the “Federal Rules of Evidence.” This codification of the law of evidence went into effect in the mid-1970s. (It was enacted into law by Congress.)

2. The Law of Evidence in the States

Your may wonder why the casebook focuses on the Federal Rules of Evidence and why it generally seems to ignore the law of evidence in the States.

Note that the Federal Rules of Evidence apply only in federal legal proceedings; Congress did not profess to make the FRE applicable to the States. See FRE 101 (Appendix A or the Cornell LII web site):

These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101.

If you examine Rule 1101, you will find nothing there that makes the Federal Rules of Evidence applicable in trials in state courts.

The vast majority of lawsuits are brought in state courts rather than in federal courts. So did the editors of your casebook make a mistake in examining only the Federal Rules of Evidence?

Perhaps not. There is the practical difficulty of mastering the law of evidence in more than 50 different jurisdictions. But there is a more respectable reason for the focus on the Federal Rules of Evidence: today a large majority of states have adopted codes of evidence that are modeled on (“patterned after”) the Federal Rules of Evidence. At last count more than 40 states have adopted evidence rules that are, to a very large extent, based on the Federal Rules of Evidence.

But there are two important exceptions to this monkey-see monkey-do pattern:

First, the great state of California has its own code of evidence, the California Evidence Code. This code was adopted before the Federeal Rules of Evidence were adopted. In fact, the Cal Evid Code to an important degree served as a model for the Federal Rules of Evidence. (Nonetheless, we will generally ignore the Cal. Evid. Code.)

Second, New York State has not codified its law of evidence; New York is a great big holdout from the evidence codification movement. (There are a few other holdouts; e.g., Connecticut and Massachusetts. But even these states have effectively – by incremental judicial decision making – used the Federal Rules of Evidence to codify their rules of evidence to a large extent.)

A further word about the situation in New York: New York does have some legislation governing some parts of the law of evidence. But this legislation is different from the codified rules that you find in the Federal Rules of Evidence. Moreover, most of New York's law of evidence is still the product of adjudication -- common law decision making -- rather than legislation.

Although you and I are now very much in New York State, we will usually ignore New York's law of evidence. One reason for this is just lack of time. But I have a better reason for doing this: New York's law of evidence generally resembles the federal law of evidence. That's mostly because the Federal Rules of Evidence generally track the common law. But the lines of influence now run in two directions: New York courts' view of the New York law of evidence is influenced by the Federal Rules of Evidence. (But keep in mind that sometime federal evidence law and York's common law rules do differ.)

There is another big excepion to the monkey-see monkey-do approach to the law of evidence: even though the vast majority of states now have evidence codes patterned on the Federal Rules of Evidence, the Federal Rules of Evidence present a misleading picture of one important part of the law of evidence in the States. As you probably know, there are rules of evidence known as “privileges.” Generally speaking, privileges are rules that allow persons to protect certain types of confidential communications (under certain circumstances). For example, one privilege allows a patient to prevent the disclosure of the confidential communications she made to her doctor (or the doctor's intermediaries) for the purpose of obtaining medical diagnosis or treatment. But the privileges that the federal system recognizes and applies are quite different from the privileges that the various States of the American Union recognize and apply. Furthermore, there is little interstate uniformity in recognition and non-rognition of privileges: the list of recognized privileges varies substantially from state to state. For example, some states recognize an accountant-client privilege but many states and the federal courts do not recognize this privilege.