The Case for Legislative Revision of the Law of Evidence: An Address to Continuing Legal Education Meeting of the Oregon Bar

The Case for Legislative Revision of the Law of Evidence: An Address to Continuing Legal Education Meeting of the Oregon Bar
Professor McDonough is currently on a leave of absence while serving as Assistant Deputy Attorney General of the United States.

March 30, 1967 | John R. McDonough

The question which I propose to discuss today is whether it would make sense for the bench and bar of Oregon to undertake the kind of legislative revision and restatement of the law of evidence that we have recently accomplished in California. To provide a basis for consideration of that question, let me tell you briefly about our California experience. The Anglo-American law of evidence is largely a judge-made product, supplemented in most states by an overlay of legislation which partly codifies and partly displaces or supplements the decisional law. Substantively, the law of evidence consists largely of exclusionary rules, many of them apparently developed because of concern that juries might be misled if relevance were the only criterion of admissibility. In many states there are substantial gaps in the law of evidence, simply because the appellate courts have not had occasion to deal with particular questions, or confusion because they have dealt with them somewhat obscurely or inconsistently. Moreover, in most states, there are some areas in which the law of evidence is either antiquated or just plain wrong, or both.

If there is any part of the law that ought to be readily accessible, straightforward, simple and clear it is the law of procedure in general and of evidence in particular. This part of our law deals not with peoples’ rights but only with the machinery for vindicating those rights. Moreover, most evidence questions arise in the process of trial and the heat of battle, where rulings must be made both immediately and finally.

Over twenty years ago a number of evidence scholars and others came to the conclusion that the American law of evidence fell considerably short of the ideal, both in substance and in its capacity to produce ready answers to difficult questions in the course of litigation. They called for a comprehensive reexamination, revision, and restatement of the law of evidence. The first major response to this demand was the Model Code of Evidence which was promulgated by the American Law Institute in 1942. The Model Code was a sharp departure from the then-existing law, weighted heavily in the direction of admissibility. It turned out to be far ahead of its time and it was not enacted anywhere.

At about that point, the Commissioners on uniform state laws picked up the ball. They produced the Uniform Rules of Evidence in 1953. This was and is a generally sound body of evidence rules which depart far less sharply from traditional law than did the ALI’s Model Code.

In California, the Law Revision Commission, of which I was then a member, was directed by the Legislature in 1956 to make a study of the Uniform Rules of Evidence to determine whether they should be adopted in our state. Now, as we all of course know, when any group of lawyers is asked whether the work-produce of any other group of lawyers is entirely acceptable the answer usually is “no.” This case was no exception. Thus, what our Law Revision Commission ultimately did was to draft its own Evidence Code and recommend that it, rather than the Uniform Rules of Evidence, be adopted. And so the California Evidence Code was enacted in 1965, with a delayed effective date until January 1, 1967. Of course, we borrowed heavily from the URE in drafting the Evidence Code, but we also departed from it in a number of particulars, both in substance and in form.

It must be acknowledged that a substantial objection can be raised when anyone proposes to codify a large and diverse body of law that has theretofore existed primarily in decisional form. This is that the Legislature cannot possibly anticipate all of the situations and questions that will arise in the future and promulgate in advance rules that will apply fairly and sensibly to each of them. It is arguable, therefore, that it is better to leave the growth and development of that particular body of law to the common law method: the promulgation of narrow rules to fit particular cases and the gradual expansion, modification and refinement of those rules as specific new cases arise. It may also be contended that to cast a body of law in the form of black-letter propositions that can be changed only by the ponderous process of legislative amendment will stultify its capacity for growth and development.

It is true that there are hazards in undertaking a legislative revision and restatement of any body of law as large and complex as the law of evidence. Almost certainly, some mistakes will be made, both of omission and commission. There is also undoubtedly some risk that an undesirable element of rigidity will be imported into the law. But these quite legitimate doubts and concerns do not, I think, necessarily carry the day. Rather, what they do is raise two questions: (1) Are there substantial offsetting advantages in a legislative revision and restatement of the law of evidence? and (2) can measures be taken to minimize the risk of undue rigidity in the law which appear to be inherent in such an enterprise?

As to the second of these questions, we provided two answers in connection with the new California Evidence Code. In the first place the Legislature did no wholly occupy the field. The Code includes a number of provisions permitting our courts to make new decisional rules of admissibility – for example, they are specifically empowered to create new exceptions to the hearsay rule. (They may not, however, make decisional rules excluding evidence which the Evidence Code makes admissible.) In the second place, the Law Revision Commission has retained the subject of evidence on its agenda and proposes to keep the Code under study and to recommend changes, from time to time, as “bugs” come to light in the course of its use. Hopefully, with both the courts and the Legislature thus enable and encouraged to give continuing attention to further improvements in our law of evidence, codification will not prove to be a straightjacket.

The other question is a larger and more important one: are there sufficiently substantial advantages in a legislative revision and restatement of the law of evidence to justify the time, effort and risks involved? To provide a basis for considering that question, let me tell you some of the things we were able to accomplish through the enactment of our Evidence Code, leaving it to you to decide whether they make at least a prima facie case for the kind of codification that we undertook.

It should be noted at the outset that the new California Evidence Code is primarily a restatement rather than a revision of the law of evidence. Now, that might appear at first blush to be an argument against codification. The fact is, however, that while we were able ultimately to conclude and assert in most instances that what we proposed was merely a codification of existing law, that assertion was often possible only after exhaustive research, a careful piecing together of holdings and dicta in judicial opinions on the one hand and obscure sections of our Code of Civil Procedure on the other, and the resolution of numerous doubtful questions concerning which lawyers and judges might well have drawn varying conclusions over the years were the matter not now settled by legislative enactment. Thus, while the Evidence Code’s clarification and restatement of the law of eVIdence on these points probably makes no substantive change, it should save California trial lawyers and judges countless hours of research and argument, to say nothing of obviating or simplifying appeals.

There is a related advantage to a comprehensive restatement of the law of evidence, even when it does not involve substantive change. This is that such an undertaking forces the draftsmen of a proposed Evidence C’ode to make an unusually comprehensive, careful and refined analysis of the subject. The result is to bring to light subtle but important distinctions that many of us either never did grasp fully or else have long since forgotten. Thus the Law Revision Commission was able to say in several instances, not altogether facetiously, that while we were restating the California law of evidence, it would probably come as a surprise to a good many California judges and lawyers to learn just what the California law of that particular subject was.

For example, our new Evidence Code distinguishes carefully between the two different situations that may arise when the admissibility of a proferred item of evidence turns upon the resolution of a preliminary question of fact. Who decides the preliminary question-judge or jury? The answer is, sometimes the judge, in which case he hears all evidence offered by both sides relating to the preliminary fact before ruling and then decides that matter once and for all-as, for example, when the question is whether parties are married as bearing upon whether a claim of marital privilege may be made. In other cases, the jury determines the preliminary fact, the judge being required to admit the proferred evidence if there is sufficient evidence to support a finding of the preliminary fact even though the judge himself does not believe that it is established-as, for example, when the preliminary fact is the personal knowledge of a witness or the authenticity of a document. In such cases, the judge need not admit conflicting testimony concerning the preliminary fact before ruling on the admissibility of the proferred evidence and he must, on request, instruct the jury to disregard the proferred evidence if they conclude that the preliminary fact is not established. In codifying the law of evidence this kind of distinction in handling questions of preliminary fact must necessarily be thought through and made explicit. As a result, while there may be no substantive change in the law itself, there may well be a change in its understanding and application because of the clarification which codification produces.

Still another advantage to be derived from a codification of the law of evidence, even though it produces little or no substantive change, is the opportunity it affords to deal with several related matters both comprehensively and uniformly. Perhaps the best example we found of this was in the law of privilege as related to various types of confidential communication-marital, attorney-client, doctor-patient, etc. There, we discovered a variety of questions which were substantially identical as to each of the several privileges involved-questions, for example, relating to the scope of the privilege, the circumstances in which it arises, who is the holder of the privilege, who may claim and waive it, what exceptions to the privilege there should be, and so forth. Yet, we found in our California statutory and decisional law answers to some of these questions in respect of some privileges and not in respect of others or different answers to the same questions insofar as different privileges were concerned. Dealing with the subject comprehensively rather than on a piecemeal basis, we were able to determine upon uniform answers to parallel questions and to cast those answers in identical statutory language-an accomplishment which could have been accomplished only after many years, if at all, by the process of judicial decision.

Codification of the law of evidence also deserves serious consideration as a vehicle for law reform. It is true that a commission which undertakes to draft a code of evidence is likely to end up largely restating the law of evidence-or at least we did. But we also found that there is room for fresh analysis on a number of matters and for a variety of innovations based on both principle and common sense. We decided, for example, that there were in our California law encrustations of formality that could safely be dispensed with insofar as proving the authenticity of official documents is concerned, with a considerable streamlining of the processes of proof. In other cases we concluded that particular rules of evidence either always were wrong or, if they once were right, had long since outlived their usefulness.

Let me give you just two examples of innovations in our new Evidence Code which I believe are sound and which would be unlikely to have come about except in the course and context of a legislative revision.

When in our endeavors we came to the subject of rebuttable presumptions, we of course confronted an issue that has long been the subject of a vigorous debate among students of the law of evidence. Some authorities assert that a presumption always shifts the burden of proof (the so-called Morgan view). Others contend just as vigorously that a presumption never does more than shift the burden of introducing evidence, or “going forward” (the so-called Thayer view). Under the Thayer view, a presumption disappears from the case entirely once the person against whom it operates has introduced sufficient evidence to support a finding against the presumption, without regard to whether that evidence will be believed by the trier of fact. The Morgan view, on the other hand, is that a presumption is not wholly dispelled by the introduction of such evidence but, rather, continues to have the effect of requiring the judge to instruct the jury to find in accordance with the presumption, unless and until the jury is persuaded that the opposite is true.

Which position did we take on this controversial issue? We took both positions! The Evidence Code says, in effect, that the Thayer view is correct as to some presumptions, which the Code defines as presumptions affecting the burden of producing evidence, but that the Morgan view is correct as to other presumptions, which are defined as presumptions affecting the burden of proof. Some rebuttable presumptions are classified by the Code as either one or the other and standards are provided for the classification of other presumptions by the courts.

Now, of course, you may disagree on the merits with this whole scheme of classification. But if, as I believe, we are on the right track, I submit that this is the kind of major innovation in the law of rebuttable presumptions which could only have been accomplished in the course of a comprehensive legislative overview of the entire subject.

Another example of what may be accomplished in the course of a legislative revision of the law of evidence may be found in what our new Evidence Code does in respect of judicial notice. There, we made little change, if any at all, with respect to what matters may be judicially noticed. But we made a number of procedural changes concerning judicial notice which are designed both to clarify the functions of court and counsel and to ensure that all parties will be apprised at all times as to what may, will, or will not be noticed. These procedural innovations, which are designed simply to bring the phenomenon of judicial notice within the general ambit of procedural due process, are accomplished through nine carefully drafted and closely integrated code sections, supplemented by several pages of draftsmen’s comments. Here, again, it seems to me, is the kind of substantial improvement in the law of evidence that would be virtually impossible to achieve except through the legislative process.

Other examples could be given, were time and your patience to permit, of the opportunities which a full scale revision and restatement affords both to clarify and to improve the law of evidence. Of course, I must be careful, in arguing this prima facie case, not to claim too much. Not every opportunity to clarify or improve the law is fully availed of. Analysis of the problem is too often faulty, perception of the true answer too often wanting. Even where there is insight, draftsmanship may fail to capture and communicate it. And, of course, in a legislative process of revision there must be compromise-too often simply because the right principle does not command the necessary votes. In short, perfection is hardly to be expected. But improvement-even substantial improvement-is possible. And an evidence code in being and in use can provide both a significant forward step and a vehicle for further improvement through both judicial and legislative effort.

I therefore respectfully invite your attention to our experience and to the question whether it might serve as an example for you to follow.