THE FEDERAL RULES OF EVIDENCE, DECONSTRUCTED

August 14, 2018

Author/self-publisher Maurice Baggiano offers THE FEDERAL RULES OF EVIDENCE, DECONSTRUCTED, as a user-friendly guide/deskbook for the practicing lawyer who needs a clear and simple elocution and elaboration of the Federal Rules.  The problem is that DECONSTRUCTED is too simplified and is organized in a way many lawyers might find difficult to maneuver.

Let’s start with organization.  Baggiano uses words and phrases – child molestation; burial markers; employees/employment relationship; portraits – as the entryway to rules.  In other words, if you have a case with a burial marker [a.k.a. gravestone] and turn to that page you will find a reference to the hearsay exception for “family records,” 803(13).  The inutility is apparent – if your case involves an urn, or a cemetery monument, you might not think “burial marker.”

More important than the organization is the over-simplification, which has the risk of misleading.  When Baggiano discusses Rule 414 under the heading “child molestation” he  omits what caselaw has made clear – that at least some scrutiny of “other acts” evidence is permitted under Rule 403.  When discussing declarations against interest, there is no acknowledgment that a statement that implicates a declarant and a third party must omit the third party conduct when introduced under Rule 804.  And when explaining the role of character in assessing the veracity of a witness under Rule 608 he omits the critical point that evidence of truthful character is admissible only after proof of untruthful character has been adduced.  In the over-simplified version, “[e]vidence of a witness’ character may be admitted under Rules 607, 608, and 609 [Rule 404(a)(3)]…”  And, technically, 607 makes no mention of “character” but just addresses the right of any party to impeach any witness.

I strongly endorse clarity and plain English explanations – but when they are over-simplifications and replete with omissions, they offer little help.  Evidence was over-deconstructed here.

 

 

Citation:

THE FEDERAL RULES OF EVIDENCE, DECONSTRUCTED by Maurice Baggiano (LawOnTapp 2018)