The Federal Rules of Evidence (Federal Rules or Rules) were created in large part to promote uniformity and predictability in federal trials by providing a relatively instructive guide for judges and lawyers concerning the admissibility of evidence. As with any codification, success in this respect requires, among other things, that there be a considerable degree of intellectual coherence among the code's various provisions. The Federal Rules fall short of intellectual coherence in a number of areas. They contain contradictory and inconsistent mandates that do not make theoretical sense and therefore accord the trial judge almost unlimited discretion in these areas. He or she may arbitrarily make a ruling based on either side of the contradiction. Rulings are thus unlikely to be uniform or predictable on these matters.
Although the Federal Rules lack intellectual coherence in a number of respects, this Essay focuses on only two examples: (1) Federal Rule of Evidence 404(b ), which governs the admissibility of prior crimes, wrongs, and acts to help establish a current alleged one; and (2) Federal Rule of Evidence 901, which involves authentication and identification of documents and other items in order to establish the genuineness of their connection to the litigated matter.
28 Loy. L.A. L. Rev. 1259-1270 (1995)
Scholarly Commons Citation
Rothstein, Paul F., "Intellectual Coherence in an Evidence Code" (1995). Georgetown Law Faculty Publications and Other Works. 709.