1.5 HISTORY AND DEVELOPMENT OF RULES OF EVIDENCE 13 into evidence, in any court, of any wire or oral communication that has been obtained in violation of the Federal Wiretap Act, even if it would be considered relevant and truthful evidence.28 In Illinois, the legislature provided that under the Sexually Dangerous Persons Act, evidence of a defendant's prior crimes and punishments, if any, may be admitted against a defendant29 in contrast with the usual rule that prevents admitting a defendant's past criminal acts in subsequent proceedings. A. Adoption of the Federal Rules of Evidence In an effort to obtain more uniformity in court procedures, the United States Supreme Court in 1972 adopted the Rules of Evidence for United States Courts and Magistrates. Congress initially blocked their effective use until it was satisfied with the wording of the rules. Subsequently, in 1987, the scope of these rules was extended to include proceedings before United States bankruptcy judges.30 A study of the development and application of this set of rules demonstrates how rules of evidence are changed by legislative action. The Supreme Court order of November 20, 1972, directed the federal district courts and United States magistrates to follow these rules after July 1, 1973. However, in accordance with federal laws, Privileged communications Statements the proposed rules were required to be made by one person to another when transmitted to Congress for approval. The there is a necessary relation of trust and House Judiciary Committee wrestled with confidence between them, which the provisions for nearly a year, and finally the person receiving them cannot be approved a modified version in early 1974 legally compelled to disclose, e.g., by a vote of 377 to 130. Before approving the statements made by a husband to the Supreme Court draft of the rules of evihis wife, or a client to his or her attorney. dence, the House Judiciary Committee changed provisions concerning privileged communications. The current enhancement of the Federal Rules of Evidence became effective in December 2010. In explaining the purpose and construction of the Federal Rules of Evidence, the drafters included this comment: These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of a law of evidence to the end that the truth may be ascertained and proceedings justly determined.31 28 29 30 31 See 18 U.S.C. } 2515 (2011). See 725 ILCS 205/5 (2011). Federal Rules of Evidence, Title 28 United States Code (1972). These rules, updated through December 2010 by Congress, are included as Appendix I and are referred to throughout this text. FED. R. EVID. 102. 1.5 HISTORY AND DEVELOPMENT OF RULES OF EVIDENCE 13 into evidence, in any court, of any wire or oral communication that has been obtained in violation of the Federal Wiretap Act, even if it would be considered relevant and truthful evidence.28 In Illinois, the legislature provided that under the Sexually Dangerous Persons Act, evidence of a defendant's prior crimes and punishments, if any, may be admitted against a defendant29 in contrast with the usual rule that prevents admitting a defendant's past criminal acts in subsequent proceedings. A. Adoption of the Federal Rules of Evidence In an effort to obtain more uniformity in court procedures, the United States Supreme Court in 1972 adopted the Rules of Evidence for United States Courts and Magistrates. Congress initially blocked their effective use until it was satisfied with the wording of the rules. Subsequently, in 1987, the scope of these rules was extended to include proceedings before United States bankruptcy judges.30 A study of the development and application of this set of rules demonstrates how rules of evidence are changed by legislative action. The Supreme Court order of November 20, 1972, directed the federal district courts and United States magistrates to follow these rules after July 1, 1973. However, in accordance with federal laws, Privileged communications Statements the proposed rules were required to be made by one person to another when transmitted to Congress for approval. The there is a necessary relation of trust and House Judiciary Committee wrestled with confidence between them, which the provisions for nearly a year, and finally the person receiving them cannot be approved a modified version in early 1974 legally compelled to disclose, e.g., by a vote of 377 to 130. Before approving the statements made by a husband to the Supreme Court draft of the rules of evihis wife, or a client to his or her attorney. dence, the House Judiciary Committee changed provisions concerning privileged communications. The current enhancement of the Federal Rules of Evidence became effective in December 2010. In explaining the purpose and construction of the Federal Rules of Evidence, the drafters included this comment: These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of a law of evidence to the end that the truth may be ascertained and proceedings justly determined.31 28 29 30 31 See 18 U.S.C. } 2515 (2011). See 725 ILCS 205/5 (2011). Federal Rules of Evidence, Title 28 United States Code (1972). These rules, updated through December 2010 by Congress, are included as Appendix I and are referred to throughout this text. FED. R. EVID. 102. 14 CRIMINAL EVIDENCE 1.6 The adoption of the Federal Rules of Evidence has contributed to establishing a uniform body of law. However, there is some doubt that the adoption of the rules has achieved the goal of simplicity that its drafters envisioned.32 B. Uniform Rules of Evidence As Congress worked toward adoption of the Federal Rules of Evidence, the National Conference of Commissioners on Uniform State Laws prepared new Uniform Rules of Evidence patterned after the Federal Rules. In 2005, the Commissioners approved an updated draft of the Uniform Rules of Evidence that reflected the then current amendments to the Federal Rules. This codification of evidence laws was designed and suggested for adoption by the state legislatures and has been periodically revised to keep it in fair conformity with the Federal Rules,33 which federal courts have followed since 1975. To avoid confusion and encourage uniformity, the numbering systems for the two sets of rules are consistent. As the Federal Rules have been changed by Congress, the Commissioners on Uniform State Laws have made an effort to bring the Uniform Rules into conformity. As the evidence rules followed in the federal and state courts of the United States today are products of a combination of legislative acts (as discussed in previous paragraphs) and court decisions, a study of evidence requires an examination of federal and state legislation and the cases interpreting the rules. 1.6 Application of the Rules of Evidence in State and Federal Courts The history of the United States and the separation of powers concept have influenced the legislative bodies and courts in establishing evidence rules. As a general rule, questions of evidence are governed by the laws of the forum; that is, the state rules of evidence apply in state courts, and the federal rules apply in federal courts. If the state has jurisdiction over the parties and the cause of action, the rules of evidence and the laws of that state generally will apply. The United States Constitution gives Congress the power to make regulations guiding the Supreme Court and to create tribunals inferior to the Supreme Court. The rules of evidence established by Congress are to be followed in federal courts. However, no codification of rules can be applied without court interpretation. Therefore, one must carefully examine federal cases, especially United States Supreme Court cases, in applying the law governing the admissibility of evidence in federal courts. While the legislation of each jurisdiction is supreme, and state rules of evidence provide general guides in state courts, legislation is subject to such limitations as may 32 33 WIGMORE ON EVIDENCE } 6.5 (1988). Uniform Rules of Evidence (2005). National Conference of Commissioners on Uniform State Laws. The Table of Contents for the Uniform Rules of Evidence is included in Appendix II. 16 CRIMINAL EVIDENCE 1.7 Evidence for the District's courts, but the Federal Rules, of course, apply in federal courts sitting within the District of Columbia.39 Because the Federal Rules of Evidence have had a major impact on state laws and evidence rules, and because the states have increasingly looked to federal decisions for interpretations, provisions of the Federal Rules of Evidence and federal cases interpreting the Federal Rules are cited throughout this text.40 The Federal Rules and the Uniform Rules have generated a reform of the evidence rules. However, the states have not given up their independence on evidence issues. State courts are free to interpret evidentiary rules in a manner different from federal courts and interpretations offered by the courts of sister states. To develop a more comprehensive understanding of the rules, state cases as well as federal cases are cited and examined. Nevertheless, because some state evidence rules differ from both the Federal Rules and the Uniform Rules, it is necessary to consult the laws and decisions of the state that has jurisdiction over the parties.41 1.7 Future Development of the Rules of Evidence In studying rules of criminal evidence, it must be recognized that our rules are a product of progressive growth and adaptation to new circumstances. The rules of evidence will continue to change and, in fact, probably will change more rapidly in the next several years as judicial officials and members of legislatures attempt to fashion a more effective system to meet the needs of an evolving society. Evidence rule changes may reflect some new pressing social needs such as allowing admission into evidence of prior sexual offenses by a defendant when other offenses might not be admissible.42 Alterations to the Dead Man's statutes indicate that the old fears of fraud by witnesses against the dead have been overblown and the usual avenues of cross-examination may work perfectly well.43 It may be that admitting evidence of prior sex offenses will be seen as unfair and will later be rejected, while changes to the Dead Man's statutes will be seen as appropriate for the ages and will have lasting effects. Demonstrative of evolutionary development of the rules and interpretations of the rules of evidence is the change made to the marital testimonial privilege recognized by federal courts. Prior to Trammel v. United States,44 both husband and wife were considered holders of the testimonial privilege and could prevent the other from testifying against a defendant spouse. The original theory involved the protection and promotion of marital harmony. The Supreme Court reasoned that if \"one spouse is willing to testify against the other in a criminal proceedingwhatever the motivationtheir relationship is almost certainly in disrepair; there is probably little in the way of marital 39 40 41 42 43 44 Id. The Federal Rules of Evidence, as amended through December 1, 2010, are included in Appendix I. For comprehensive coverage of the differences in state rules and interpretations, see Joseph & Saltzburg, Evidence in America, The Federal Rules in the States (1994). 29 HAMLINE L. REV. 177 (2006). 53 CLEV. ST. L. REV. 75 (2005). 444 U.S. 40, 1980 U.S. Lexis 84 (1980). 18 CRIMINAL EVIDENCE 1.8 valid and the rules no longer provide appropriate results. However, it would prove unwise to abolish our system entirely, as was done in France in the 1700s. Appropriate changes should be made by the courts and legislatures after careful study and with regard to the objectives to be achieved. Therefore, not only is it necessary that all who are involved in the criminal justice system be aware of the rules of evidence as they exist today, but everyone must also be familiar with the history of the rules, keep up with changes as they occur, and take an active part in recommending improvements when time and events have dictated that changes need to be made to some of the current rules of evidence. 1.8 Summary In every society efforts have been made to determine the guilt or innocence of a person charged with violating the rules of that society. Some of the world's legal systems were built on sound foundations and have continued for many centuries. However, other legal systems disappeared when the governments responsible for developing them were overthrown, or when governments developed other methods for determining guilt or innocence. The experience of history has proven to be a strong teacher that has preserved evidence of prior legal systems so that nations today can harness the knowledge of the past to help the law of evidence evolve in a productive path toward the future. In England, after centuries of experimentation, a system for determining guilt or innocence developed by utilizing parts of earlier systems. With the development of the jury system, a complex set of rules for determining the admissibility of evidence gradually developed. Although a jury system patterned after that of England was adopted by the United States, the rules for admitting the evidence have been changed by our courts and legislative bodies. Today, the rules of exclusion are stricter in the United States than in England. The rules for determining the admissibility of evidence have changed and will continue to evolve. In this country, judges, legislators, and other criminal justice personnel must work together to seek better methods for determining guilt and protecting society, while at the same time protecting the rights of the individual. CHAPTER ONE: QUESTIONS AND REVIEW EXERCISES 1. Was the Egyptian legal system likely to produce accurate and fair criminal justice? 2. With respect to reaching a fair verdict, would the use of several hundred jurors in the Greek legal system promote equity and due process? 3. How did the Romanesque system of the Code of Napoleon develop such a great influence on western civilization? 4. Under the Anglican system of law, how was the jury system different from what is typically seen in the modern American jury system? 5. In what ways has the American Congress influenced the development of the rules of evidence and changed the admission of evidence