An Essay on Drafting Evidence Legislation and Rules: Challenging the Conventional Wisdom

Akron Law Review, May 2023

There have been numerous major efforts to reform and codify American Evidence law. The efforts include the Model Code, the Uniform Rules, the California Evidence Code, and, of course, the Federal Rules of Evidence. The various reform initiatives have attempted to create “an evidence bible for busy trial judges and attorneys.” Of course, to resolve the many common-law splits of authority, the reformers faced substantive evidentiary questions: Should the opponent be permitted to impeach by cross-examining about a bad act that has not resulted in a conviction? Should there be a learned treatise hearsay exception? And should a presumption disappear as soon as the opponent presents sufficient evidence to support a finding that the presumed fact does not exist? However, even before reaching those questions, the drafters faced the fundamental question of the style or format of drafting the statute or rule: Should it be a creed consisting largely of aspirational statements, a catalog prescribing very detailed rules, or a code employing broader language to give judges discretion to do justice on the specific facts of the case? Starting with the 1942 Model Code, a conventional wisdom emerged. One part of the received orthodoxy is that privilege rules should be written in catalog fashion. According to Wigmore’s dominant instrumental rationale for privileges, the average layperson is acutely concerned about subsequent, compelled disclosure of his or her revelations. On that assumption, when the layperson has to decide whether to consult and confide, he or she must be able to confidently predict whether the courts will later shield their revelations. According to this view, the layperson can have that confidence only if privilege statutes and rules are drafted in detailed, bright-line terms. The other part of the conventional wisdom is that statutes and rules dealing with other doctrinal areas in evidence ought to adopt a code format, stating flexible principles that accord the trial judge considerable discretion to tailor justice to the specific facts of the case. The thrust of this article is that subsequent developments have overtaken both components of the received orthodoxy. Starting in the 1960s, empirical studies undermined the assumption that the world revolves around the courtroom to the extent Wigmore assumed. In many cases, the layperson is so troubled by the “here and now” problem that it is foolish to believe that he or she would not consult but for an absolute privilege codified in an exquisitely detailed

Article PDF cannot be displayed. You can download it here:

https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=2562&context=akronlawreview

An Essay on Drafting Evidence Legislation and Rules: Challenging the Conventional Wisdom

Akron Law Review Volume 56 Issue 1 Article 1 2023 An Essay on Drafting Evidence Legislation and Rules: Challenging the Conventional Wisdom Edward J. Imwinkelried Follow this and additional works at: https://ideaexchange.uakron.edu/akronlawreview Part of the Evidence Commons Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Recommended Citation Imwinkelried, Edward J. (2023) "An Essay on Drafting Evidence Legislation and Rules: Challenging the Conventional Wisdom," Akron Law Review: Vol. 56: Iss. 1, Article 1. Available at: https://ideaexchange.uakron.edu/akronlawreview/vol56/iss1/1 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The University of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact , . Imwinkelried: Evidence Legislation and Rules AN ESSAY ON DRAFTING EVIDENCE LEGISLATION AND RULES: CHALLENGING THE CONVENTIONAL WISDOM Edward J. Imwinkelried* I. II. III. IV. V. Introduction ......................................................................2 A description of the conventional wisdom: a catalog approach for privileges and a code approach for other areas of evidence doctrine ..........................................................7 A. The Doctrinal Area of Privileges .................................7 B. Other Doctrinal Areas in Evidence Law.....................11 1. The Model Code of Evidence ...............................12 2. The Uniform Rules of Evidence............................12 3. The California Evidence Code..............................13 4. The Federal Rules of Evidence .............................15 A critical evaluation of the conventional wisdom: the developments that raise grave questions about both parts of the received orthodoxy ....................................................19 A. The Doctrinal Area of Privileges .................................19 B. Other Doctrinal Areas in Evidence Law.......................24 The implications of the weaknesses of the conventional wisdom: the desirability of convergence...........................28 A. Broadening the Wording of the Provisions Governing Privileges..................................................................28 B. Tightening the Wording of Provisions Governing Other Doctrinal Areas in Evidence Law ..............................29 Conclusion ......................................................................34 1 Published by IdeaExchange@UAkron, 2023 1 Akron Law Review, Vol. 56 [2023], Iss. 1, Art. 1 2 AKRON LAW R EVIEW [56:1 *Edward L. Barrett, Jr. Professor of Law Emeritus, University of California Davis; former chair, Evidence Section, American Association of Law Schools. An evidence code should be “a kind of evidence bible for busy trial judges and lawyers.” – 7 California Law Revision Commission Reports 34 (1965) I. INTRODUCTION The last century has witnessed several major efforts at reforming and codifying Evidence law in the United States. As Part I of this Essay explains, those efforts have included the American Law Institute’s Model Code of Evidence, 1 several iterations of the Uniform Rules of Evidence originally promulgated in 1953 by the National Conference of Commissioners on Uniform State Laws, 2 the California Evidence Code, 3 and, of course, the Federal Rules of Evidence. 4 For decades, Evidence law had largely taken the form of common-law decisions, and Dean Wigmore’s monumental, multi-volume treatise surveying the common law had held sway in the United States. 5 However, the common law of Evidence was troubled by numerous splits of appellate authority, and, in the words of the California Law Reform Commission, reformers believed that the judicial administration of Evidence law could be vastly improved by producing “an official handbook of the law of evidence—a kind of evidence bible for busy trial judges and lawyers.” 6 Of course, to reduce the law of Evidence to such a handbook or code, the drafters would have to make numerous substantive choices resolving common-law splits of authority: Should the opponent be permitted to impeach a witness by questioning about untruthful acts that had not resulted in a conviction? 7 For that matter, what types of convictions ought to be admissible for impeachment purposes? 8 Should the scope of cross1. 2. 3. 4. 5. MODEL C ODE OF EVIDENCE (AM. L. INS. 1942). UNIF. R. EVID. C AL. EVID. C ODE (WEST 2023). F ED. R. EVID. R ONALD L. C ARLSON, EDWARD J. IMWINKELRIED, JULIE S EAMAN & ERICA B EECHERMONAS, EVIDENCE: TEACHING MATERIALS FOR AN AGE OF S CIENCE AND S TATUTES 13 (8th ed. 2018). 6. R ECOMMENDATION ON P ROPOSING AN EVIDENCE C ODE, 7 C AL. L. R EFORM C OMM’N 34 (1965). 7. R OBERT P. MOSTELLER, § 41 Character: Misconduct, for which there has been no criminal conviction, in MCC ORMICK ON EVIDENCE (8th ed. 2020). 8. Id. § 42. https://ideaexchange.uakron.edu/akronlawreview/vol56/iss1/1 2 Imwinkelried: Evidence Legislation and Rules 2022] EVIDENCE LEGISLATION AND RULES 3 examination be limited to the matters covered on direct examination?9 Should there be a hearsay exception for statements of present sense impression? 10 Should there be a residual hearsay exception for reliable out-of-court statements that did not fall within a traditional exception?11 Should a presumption “burst” and disappear from the case as soon as the opponent presents evidence sufficient to rebut the presumed fact? 12 At common law, all these questions had produced sharp splits of appellate authority. If the drafters were to produce the desired handbook for “busy trial judges and lawyers,” the drafters would have to address and resolve those substantive questions in the wording of a statute or rule. The overwhelming majority of the commentary on the Model Code, Uniform Rules, Evidence Code, and Federal Rules addresses the wisdom of the resolutions proposed by the drafters. However, the purpose of this short Essay is to discuss another choice facing the drafters: the manner or style in which the handbook’s provisions ought to be drafted. In his Foreword to the Model Code of Evidence, the great 20th-century reformer, Professor Edmund Morgan, put the matter succinctly: The choice was among a creed, a catalog, or a code. 13 A creed would merely state aspirational goals and empower trial judges to exercise very wide discretion to make rulings that, in their mind, promoted those goals. At the polar extreme, a catalog would prescribe detailed evidentiary rules for every foreseeable trial situation and largely deny trial judges any discretion. In contrast, a code would state flexible principles that are more particularized than aspirational goals and grant trial judges limited discretion to apply those principles to s (...truncated)


This is a preview of a remote PDF: https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?article=2562&context=akronlawreview
Article home page: https://ideaexchange.uakron.edu/akronlawreview/vol56/iss1/1

Edward J. Imwinkelried. An Essay on Drafting Evidence Legislation and Rules: Challenging the Conventional Wisdom, Akron Law Review, 2023, pp. 1, Volume 56, Issue 1,