November 22, 2016

New from the Practising Law Institute, TRIAL EVIDENCE BROUGHT TO LIFE is an ambitious undertaking, an Evidence Law deskbook for attorneys.  The intent is that Rules and their application be brought to life and rendered more comprehensible (and therefore more easily applied) by illustrating them with examples from “famous trials, film and fiction.”  Written by emeritus Law Professor Martin Schwartz, it succeeds in large part but not completely.

Let me start with the strengths.  The book is a comprehensive one volume compendium of Rules with explanations and analyses.  Valuable examples include Schwartz’ use of the trial in State v. Ayres to demonstrate when former testimony of a now-unavailable witness is admissible in a criminal case; and the illustrations of character witness testimony, drawn from the Alger Hiss trial and the film From the Hip.

What are the limitations?  Schwartz sometimes uses illustrations that are so abbreviated that there is no lesson to learn, as when he summarizes the notorious case of Shepard v. United States regarding whether a statement was a dying declaration – he tells us the statement and the Court’s conclusion, but never explains why that conclusion was reached.  The book also has inaccuracies, as when it uses the film Witness for the Prosecution to illustrate impeachment with prior inconsistent statements and mislabels the use of a letter on cross-examination as “extrinsic” proof of an impeaching statement.  Another lapse – here in terms of a lack of clarity – is when he describes a witness’ statement in the following clearly-incompatible terms:

Vogel’s statements were not offered to prove the truth of the facts asserted, but to prove his state-of-mind.  Further, they were within the FED.R.EVID. 803(3) state-of-mind hearsay exception.

The confusion is apparent, as statements under 803(3) are for the truth of the matter asserted.

TRIAL EVIDENCE BROUGHT TO LIFE does offer a tremendous amount of information, and often has examples that bring great clarity to Rules that may be confusing.  So on the whole it may offer great value to the practitioner who needs an easy-to-read Evidence reference.  It just needs to be read with some care.


Martin A. Schwartz, TRIAL EVIDENCE BROUGHT TO LIFE, Practising Law Institute (2016)