A. Why do we have evidence law at all?–Evidence law is created by individuals to further public policy and political interest; therefore the law is dynamic.
1. Jury Mistrust
a. One of the major areas is common law rules of competency-a jury can’t be trusted to properly evaluate disability, so people were barred from testifying because they were “incompetent”
(1) Example-Jury couldn’t be trusted to evaluate and take into account testimony by those with a pecuniary interest in a case
(2) Most of these common law rules have been removed, BUT a few remain…
i. Opponent can reveal factors that might cause a witness to lie-rule of impeachment-so juries can decide whether or not to trust them
ii. “Dead Man Statute”-a witness can’t testify to an oral communication with the deceased against the executor in Florida probate cases.
iii. Common law-spouse was incompetent to testify for or against spouse; not credible testimony-today this has been eliminated.
-Instead, there are rules of spousal privilege.
-Florida-Marital Communication Privilege-a spouse can prevent their spouse or another person from testifying to a communication between spouses
(3) Children under the age of 14 were previously thought to be incompetent. Today, intelligence and not age is the determining factor. This is for children and mentally handicapped people.
i. But the threshold for incompetence is very low today.
ii. Article 6 in the Florida Evidence Code and the Federal Rules of Evidence says that every one is competent, except when they don’t meet the intellectual requirements laid out in the statute.
-Ability to take and understand oath.
-At time of perception, must have had the ability to receive accurate sensory perceptions of event (at least one sense)
-Recollection ability of what was perceived.
-Must be able to minimally communicate what they perceive-through an interpreter if necessary.
-Also, the judge presiding over the case cannot testify and the jurors in the case cannot testify (but there are exceptions for jurors).
b. Hearsay-an out of court statement offered by a litigant to prove the truth of what is asserted.
(1) The idea behind it is the judge’s mistrust of the jury’s ability to evaluate testimony accurately.
(2) Now most of these statements are kept out through the judge.
c. §404 FRE and FEC-character rules
(1) Evidence of a person’s character is inadmissible (with exceptions).
d. §403 FRE and FEC-pragmatic relevancy
(1) Evidence cannot get to the jury if it has no probative value-if the value is outweighed by it’s potential to confuse, prejudice, or mislead the jury
(2) More evidence is excluded by §403 than any other rule of evidence**
2. Enhance the truth-determining process
a. “Best evidence rule”-deals only with documents
(1) Definition of document is broad (VIN #, tombstone, etc.)
(2) Law doesn’t require you to enter the better evidence; the law allows the litigants to select what they think is the best.
(3) But where you are trying to use a document, you must bring the original document, not a copy
b. Opinion Rule-Article 7 FRE and FEC
(1) Nobody can generalize where specificity is possible-you must stick to the facts and let the jury draw
attempt at codification; he died without seeing a single jurisdiction adopt his plan. His evidence rules were multi-volume, complex, and convoluted.
2. 1940s-American Law Institute Mode Code; very radical and technical and was not adopted.
3. 1953-Uniform Rules of Evidence-shorter, less technical; adopted by some state, but not widely
4. 1965-California Evidence Code; successful and made modifications to common law
C. Federal Rules of Evidence
1. Committee appointed to write and propose them; led by Albert Jenner
2. Revision/codification of Law of Evidence proposed during Watergate scandal
3. Majority of the package was adopted, but some were deleted and superseded-rules were changed and modified significantly, before being adopted in statutory form
4. Today, 41 states, Puerto Rico and Guam have adopted state rules of evidence, primarily modeled after the FRE
a. NY, CA, IL-did not model their rules after the FRE, but many principles are similar
D. Florida Evidence Code
1. 1976-Florida legislature adopted rules of evidence modeled after FRE; didn’t
2. The rules didn’t go into effect until 1979, after lawyers/judges were given the opportunity to provide feedback, but little feedback was given
In the Federal jurisdiction, Congress has original jurisdiction over the rules of