Distinguished Professor of Law and Judge Lacey Scholar, Rutgers Law School
During recent decades, the teaching and discussion of Evidence law have come to focus almost entirely on the topics covered by the Federal Rules of Evidence and their state equivalents. Just as the Federal Rules of Civil Procedure caused teachers and scholars to focus on what they cover, the Federal Rules of Evidence have come to define our understanding of what Evidence law is about. That has relegated to the shadows a considerable number of evidentiary rules, some of them recognized in many U.S. jurisdictions including the federal courts. This Article seeks to reclaim these rules for study and critique by surveying and classifying them, and by considering the causes and possible justifications of their eclipse.
Having staked my claim with the usual exaggeration, I proceed to the usual qualifications. There can be no claim that Evidence teachers and scholars have looked at nothing but the Federal Rules. Of course, we have all attended to the Constitution when it invaded the terrain of the Federal Rules, whether under the banner of the Confrontation Clause or that of the Due Process Clause. The Federal Rules themselves require reference to the state or common law of privilege and of competence to be a witness, as well as inviting comparison to state variants of other rules, such as those in the California Evidence Code. Sometimes the Rules have been read to carry forward, or to modify, older law, which must then be consulted to understand current law. Likewise, Evidence teachers and scholars have devoted ample attention to interdisciplinary and theoretical matters including probability theory, the theory of proof, economic and psychological perspectives, and legal history. Indeed, as will appear, some of the rules to be discussed here have received occasional scholarly attention as isolated subjects. [Read entire article here]