Monday, September 30, 2013
Unlike most evidence law teachers, especially those who have taught in multiple states, my entire teaching career thus far has been in states without comprehensive evidence codes. Specifically, I began teaching in New York (Brooklyn Law School) and now teach in Missouri (University of Missouri).
The overwhelming majority of states have adopted rules modeled on the Federal Rules of Evidence; Illinois and Georgia became states #43 and #44 in recent years. Even certain of the holdouts eschewing FRE-style rules have some kind of evidence code. For example, California has a robust evidence code organized differently from the FRE. But not New York, and not Missouri.
New York and Missouri of course have rules of evidence. But they don't have Rules of Evidence. In other words, New York courts apply the hearsay rule (along with many exceptions to it), but one cannot find a New York equivalent of Rule 801. One must turn instead to court opinions, treatises, and other summaries of the law. See, for example, this guide to New York evidence law by Prof. Travis H.D. Lewin of Syracuse. Similarly, the Missouri Bar publishes an "Evidence Guide" that summarizes the state's evidence law.
My question today is: Are Missouri and New York missing out?
As an evidence teacher whose course focuses on the Federal Rules of Evidence (with a few digressions here and there for quirks of Missouri law, and limited variations from other states), my instinct is to unquestioningly support codified rules of evidence over a hodgepodge of common law doctrines supplemented by occasional legislative enactments. In an article detailing Georgia's new rules, Prof. Paul S. Milich of Georgia State provides an eloquent argument for codification: "Rules of evidence are only as good as the lawyers and judges who must recall and apply them quickly and accurately in the heat of trial. Compared with existing Georgia law, the new rules provide a clearer, simpler, more comprehensive approach to evidentiary issues." Another benefit is that while codifying rules of evidence, the legislature can update outdated provisions that neither it nor the state's courts have had occasion to fix.
Other benefits of codification include predictability (which is related to accessibility --- it's hard to know how a law will be applied if you can't find it) and ease of communication (it's easier for a lawyer to explain an evidence rule to a judge if there's a "Rule" to cite rather than a MO Bar CLE handbook).
Is there any decent counterargument out there? Two decades ago, Prof. Barbara C. Salken of Pace published, "To Codify or Not to Codify---That is the Question: A Study of New York's Efforts to Enact an Evidence Code," 58 Brook. L. Rev. 641 (1992), in which she described failed "codification efforts dating back almost 150 years." Listing arguments raised by opponents of codification in New York, Salken noted that defense lawyers (whether civil or criminal --- that is, anyone who doesn't have the burden of proof) feared that a new evidence code would enact more liberal evidence rules, making it easier for their adversaries to prove cases. Others feared that politics would infect the new rules, with various potential pitfalls. I have heard similar fears expressed in Missouri. Are these arguments persuasive? At first glance I'm not impressed, but perhaps I'm underestimating certain risks.
The lack of codified evidence law in New York and Missouri can be explained. Can it be justified?