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by aad002


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Where does FRE come from?
  • 200 years of common law
  • Judicial decision making in English and American Courts
  • Codification of the above rules was done in 1975 (FRE enacted)
  • Then state followed (Virgina caught up in 2012)
Common law
Until California adopted a Code of Evidence in 1967, there were no comprehensive state codes of evidence.  There were no Federal Rules of Evidence.  If you wanted to find the law on any point of evidence, you went to case law or treatises summarizing that law.
FRE
Created by an advisory committee appointed by Cheif Warren. Adapted by congress in 1975
Privilege law
Many debate resulte in regards to privilege so now there is only one rule 501
VRE
Effective July 1, 2012; VRE numbering mirror FRE
Constitutional Law affecting law of Evidence
Exclusionary Clause
Confrontation Clause
Journalist privilege and the first amendment
Inclusionary Rules: the right to present a defense
Exclusionary Rule
Exclusionary Rule
  •  Evidence seized in searches that violate the 4th amendment
  • Confessions obtained in violation of miranda rights
  • involuntary confessions
  • confessions obtained in violation of the 6th amendment right to counsel
  • eye witness identifications that result from unnecessariy suggestive police tactics
Confrontation Clause
The Sixth Amendment provides that an accused has the right “to be confronted with the witnesses against him.”

Example
  • Confrontation Clause requires exclusion of “testimonial” hearsay statements unless defendant had opportunity to cross-examine earlier testimony 
Journalist privilege and the first amendment
There is an ongoing debate over whether the First Amendment creates a “journalists’ privilege” not to disclose sources.  So far, courts seem disinclined to recognize the privilege.
Inclusionary” Rules: The Right to Present a Defense
Occasionally, the Court has struck down state rules of evidence because they impermissibly and arbitrarily limit evidence which criminal defendants have sought to introduce

striking down state’s “arbitrary” rules that exclude evidence probative of innocence
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