Federal Rules of Evidence
Learning and studying evidence can seem daunting. There are lots of rules, exceptions to rule, exceptions to exceptions, and the case books are not the most compelling reading ever. This is especially true for law students who are new to the whole legal world and judicial system.
So how do you learn the Federal Rules of Evidence? How to you study something in the abstract, i.e. learn the rules of the game without knowing the game? Think about it - how hard would it be to learn all the rules of football without having seen a football game? Not easy, and not fun. Same with baseball - the infield fly rule?? Yeah, right. Explain that without a diagram.
When you first watched a football game, you learn it as you went along. As penalties were called, you learned what can and can’t be done. The replay showed you the penalty. When you saw what happened, it all made sense. As you have seen more and more penalty replays, no doubt you have started to see them for yourself in real time.
Think you could get to that level of football appreciation by reading the rules, over and over? Nope. No way.
Trial work and evidence are much the same. Unless you know what you can and can’t do in the context of the heat of trial, you are never going to get it. Unless you know how a trial works, and what the big picture is, you can't truly grasp how the complexities of the Federal Rules of Evidence come into play.
Borrowing from football watching, here are some pointers on how to learn the Federal Rules of Evidence without giving yourself a major headache. To be honest, numbers 1 and 2 can be reversed. Read on.
1. GO WATCH A TRIAL
Elementary, my good Watson. I am always amazed at how many 3rd-year law students have never gone to the courthouse and watched a trial. I started watching them before I went to law school. I admit to cutting class in law school to go to the courthouse to watch a high-profile case that was going on. In my internship with the local prosecutor, I was either trying cases (did 6 jury trials before I graduated law school), second-chairing cases with any prosecutor who'd let me or watching trials. I was on the trial team, and got lots of experience with evidence that way. Because of all that, evidence always made sense to me.
Go watch a trial. Show up at the courthouse and walk around. Ask at the info desk. Walk in the courtrooms, and as a bailiff if there’s a jury trial going on - they will know. A little searching will get you where you need to be. I almost forgot - watch the newspaper for high-profile cases!
Remember, the trial is not the objections. Most trials go on without many evidentiary objections. Sometimes they are worked out in advance. Most times the advocates know what can and cannot be entered into evidence, so the questions are refined and the witnesses prepared. That is important to note, as you may not get too many objections, but you will see that the rules are running the game smoothly. Think about it - holding and pass interference are not built into the plays that are being run!! No coach makes a game plan around how many penalties his or her team will get!
You can also find parts of some great trials on YouTube without too much trouble. Most are high profile, and you may even be somewhat familiar with them prior to watching. Note, do not let YouTube take the place of the very valuable experience of seeing a real life trial!
There’s not a lot to tell you other than listen and take notes. When objections come, make a note. Then go to number 2, below.
2. LEARN EVIDENTIARY OBJECTIONS FIRST
Holding, offsides, pass interference. Hearsay, relevance, authentication. Knowing what you can and can’t do tells you how the game works. So learn those first!
All of eLEX Publishers’ evidence summary trial guides come with a list of 28 evidentiary objections. It is the most comprehensive list out there. Each objections has the verbiage needed to properly make the objection, and cites to the applicable rule.
Once you have your list, think back to the trial you say, or go see another one. When an objection is made, look at your evidentiary objection list and read the rule. You will start to see how the little evidentiary objection fits into the whole scheme of the overall trial.
3. REMEMBER THE BASICS
The evidence code is a sieve though which we filter what we want the jurors to hear. While there are many nuances in the Federal Rules of Evidence, there are five (5) main rules you need to remember. Everything else builds off of these rules. So, if you know the main rules, everything else makes sense.
Just remember BARPH (pronounced “barf”, as in vomit). Usually we use this old pneumonic mostly when dealing with items of tangible evidence (as opposed to testimonial evidence), but it works well as a basis for understanding what it admissible evidence. On a very simple level:
Best evidence - Federal Rule of Evidence 1002 - the original document must be offered into evidence or its absence accounted for. Generally, copies permitted so long as someone can identify that it is from the original.
Authentication - Federal Rules of Evidence 103(d) and 901(a) - proof must be offered that the exhibit that is being offered for admission into evidence is in fact what it is claimed to be. The thing is what it is. Examples: the knife is in fact the knife found at the murder scene; the receipt of purchase is from the time of purchase and for the thing purchased; the voice recording is in fact that of the person alleged to be speaking. Basically, whoever wants to get an item before the jury has to be able to prove that "it is what it is."
Relevance - Federal Rule of Evidence 401 - the testimony or item of evidence tends to may any fact of consequence more or less probable. In a breach of contract case, what type of printer used to print the contract is really of no consequence. In a case where the identification of the culprit is an issue, whether the shirt was light blue, royal blue, French blue, or navy blue, could be very relevant.
Personal knowledge - Federal Rules of Evidence 103(d), 602, 701 - 702 - witness must have direct personal knowledge over that which he or she is testifying; opinions are not permitted except by experts. Witnesses cannot speculate, or offer their opinion as to why something did or did not happen. Experts can only opine when their opinion is critical the jury understanding something - for instance, in a tire blowout crash case, most jurors don't have any idea about how tires are made or tested, so an expert's opinion would assist the jurors in their decision.
Hearsay - Federal Rule of Evidence 103(d), 802 - any out of court statement, including what the witness on the stand may have said outside of court. NOTE: there are a bunch of exceptions, and some out of court statements are in fact NOT considered hearsay. But knowing that when you hear a witness starting to relate what someone said, or told them, or what they overheard, the hearsay alarm should go off.
This basic framework controls the whole trial. As mentioned above, most witnesses and evidence are prepped before the trial with the rules in mind, so penalties (objections) are kept to a minimal.
That’s pretty much it! Once you have seen it in action in a trial, learned the objections (i.e. what is going to make a ref throw a flag), and grasped the five basic BARPH rules, learning the minutia of the Federal Rules of Evidence will be much easier. The cases in the book will make more sense, and you will understand why much quicker.
Good luck, and remember to always make a timely objection!