DOCSLIB.ORG

Evidentiary Tactics: Selecting the “Best” Evidence to Simplify the Case

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Evidentiary Tactics: Selecting the “Best” Evidence to Simplify the Case Digital Commons at St. Mary's University Faculty Articles School of Law Faculty Scholarship 2004 Evidentiary Tactics: Selecting the “Best” Evidence to Simplify the Case Edward J. Imwinkelried St. Mary's University School of Law David A. Schlueter [email protected] Follow this and additional works at: https://commons.stmarytx.edu/facarticles Part of the Law Commons Recommended Citation Edward J. Imwinkelried & David A. Schlueter, Evidentiary Tactics: Selecting the “Best” Evidence to Simplify the Case, 19 Crim. Just. 20 (2004). This Article is brought to you for free and open access by the School of Law Faculty Scholarship at Digital Commons at St. Mary's University. It has been accepted for inclusion in Faculty Articles by an authorized administrator of Digital Commons at St. Mary's University. For more information, please contact [email protected]. Sulinthe'B " E celto lt the Case and David A. Schlueter by Edward J. Imwinkelried / IV r tf, 'A theory. Of course, counsel should not forget about, or dispose discovery in United States v.IBM, 406 F Supp. 175 of, the information pertinent to other theories. The trial may (S.D.N.Y.he numbers 1975), tell the the story. parties In producedthe first five over years 64 millionof pretrial take unexpected turns, and counsel needs to flexibly adapt to pages of documents. During the discovery phase of another the actual developments at trial. Evidence that was not used for federal suit, Washington Public Power Supply Systenm Securities the case-in-chief may become handy rebuttal evidence. Litigation, 19 F.3d 1291 (9th Cir. 1994), the parties exchanged Even implementing that strategy, however, is not enough. more than 200 million pages of documents. In these types of In a complicated case, there might be scores of witnesses and cases, it is not good trial advocacy to simply introduce at trial thousands of documents with information relevant to the theo- all the information compiled during pretrial discovery. Even if ry. Frorn a tactical viewpoint, counsel must be discriminating. the jury consists of 12 Einsteins, the jurors cannot digest that If the advocate has done a good job selecting a theory, many of much information. its elements will be formally or virtually undisputed, and coun- In the early 1990s, the American Bar Association Special sel should avoid boring the jury by overkill. Although ideally Committee on Jury Comprehension released the results of sur- counsel ought to offer a single item of evidence to prove up veys of jurors who had participated in complex federal and those elements, as a practical matter, it may be necessary to of- state cases. (Spec. Comm. on Jury Comprehension, ABA Liti- fer some cumulative testimony. If, for example, counsel calls a gation Section, JURY COMPREHENSION IN COMPLEX CASES witness to establish one element, it might become clear to the 27-28, 31 (1990).) The researchers asked the jurors what com- jury during the course of the testimony that the witness also plaints they had against the attorneys who had tried the cases. has personal knowledge of facts pertinent to another element. By a wide margin, the primary complaint was that the litigators In that event, if counsel does not elicit the witness's testimony went overboard and swamped the jury with information, partic- about the latter element, the jury may become suspicious. For ularly an excessive number of exhibits. Inthe infamous Mc- that matter, the opposing attorney may invite the jury to draw Martin child abuse prosecution in California, prosecutors called an adverse inference. 124 witnesses and introduced 974 exhibits, requiring more than Moreover, counsel will want to include some corroboration 33 months of trial and consuming nearly 64,000 pages of tran- in the case-in-chief on the linchpin element of counsel's theory. script. (Don L. Benedictis, McMartin Preschool Lessons: Even on that element, however, counsel should not offer every Abuse Case P/agued by Botched hvestigation, Too Many available item of evidence. To achieve simplicity at trial, coun- Counts, 76 A.B.A. J. 28 (Apr. 1990).) sel must select the "best" items of evidence. Even if, for some reason, counsel decides to be less drastic Keep it simple in paring down the case, counsel should be ready to prioritize At trial, the attorney must exorcise the demons of complexi- the evidence. The judge, either pretrial or during trial, may de- ty and confusion. "[T]he key to winning is being able to simpli- cide to "move the case along" and demand that counsel limit fy in a clear and powerful way. It's the single most important the number of witnesses or exhibits. Counsel must be prepared thing to accomplish at trial." (Harry M. Reasoner, Juries Need for the unexpected, even to the point of jettisoning evidence originally Guidance Without Condescension, NAT' I L.J., Feb. 3, 1992, at slated for presentation. On short notice, counsel may S8.) How can the attorney reduce his or her case to manageable have to decide which evidence is expendable and which is the proportions that the jury can easily digest? There are strategies best that must be retained in the case-in-chief. as well as tactics that should be employed. But what does the "best" mean in this context? Some attor- As a matter of strategy, the attorney can radically trim the neys resolve that question and choose their items of evidence in size of his or her case by relying on a single theory of the case an intuitive, almost haphazard, maunner. There are some empiri- at trial. The theory becomes the litmus test for deciding whether cal investigations of the relative weight that jurors attach to vari- to include an item of evidence in your case-ill-chief. The test for ous types of evidence. This article proposes several generaliza- admissibility under Federal Rule of Evidence 401 is logical rel- tions as to which types of evidence the litigator should ordinarily evance to the facts of the consequence at trial, primarily the prefer and include in the case-in-chief. We realize full well that facts alleged in the final pleadings. If counsel uses Rule 401 as the reader will probably disagree with some of these generaliza- the litmus test, as in McMartin, the case could drag on for tions. Yet, we offer them in the hope that this article will prompt months. With the client's consent, counsel should focus on the more litigators to familiarize themselves with the empirical liter- strongest theory and have the discipline (and confidence) to of- ature, devote additional time to thinking about this question, and fer only evidence that contributes to the development of that make more deliberate selections of the trial evidence to proffer. Order of preference among types Edward J. Imwinkelried is a law projessor at the University of of evidence Cal/fbrnia-Davis.David A. Schlueter isa law professor at St. In deciding what evidence to pare from the case, counsel Mary's Universi o , School of Law in San Antonio, Tevas. He is also should address the following question: Which types of evidence a mnember of the editorial board/br Criminal Justice magazine. are most likely to cany significant weight with the trier-of-fact? Photography: PhotoDisc There is no a priori answer. Although the Cuestionl is essentially the shorthand expression "verifiable certainty" to describe the empirical, there have been only a IFew empirical studies, some standard for noticing scientific propositions, the governing of which we cite here. We also draw on our limited experience statutes. such as Federal Rule 201(b), do not incorporate the as litigators and our years as teachers of trial and evidence tac- ter1 "'certainty." Rather they typically announce a more re- tics. We do not pretend that all attorneys and judges agre with laxed standard: A proposition that is "capable of accurate and our order of preference. A proponent of evidence. however. ready cletermination by resort to sources whose accuracy can- cannot intelligently tackle the initial tactical qluestion unless he not reasonably be qLuestioned" may be judicially noticed. In or she makes some assuniptions about the relative weighl of' Daubert. the U.S. Supreme CourI observed that "argLuably, various types of evidence. there are no certainties" even in hard science. (Daubert v. Me'- Our assumption is that ill desceiding order, the lollowing cll Dow Pharmaceuticals, lc.. 509 U.S. 579 590 (1993).) types of "evidence" are Most influiential With a jury: The Court acknowledged the realistic limits to scientific investi- gation. That acknowledgment should make trial judges even * judicial notice by the trial judge (Fed. R.Evid. 201): more receptive to judicial notice requests. " admission by the party-opponent. either in the lorm of a Furthermore. the jury tends to attach great weight to the trial stipulation or in the form of an evidentiary admission (Fed. R. judge's statements. Jurors are inclined to discount statements Evid. 401, 801 ); by the "hired gun" attorneys. (Mark Dombroff. Jurl hsruc- " physical evidence (Fed. R. Evid. 901 -2. 1001-08): lionsCar Be Crucial iniTrial Process, LEGAt TINES, Feb. 25, " live testimony by a lay witness (Fed. R. Evid. 6(01-2. 1985, at 26.) Ii contrast. jurors "typically listen more closely 701): and weigh more heavily almost everything said to them by the - live testimony by an expert witness (Fed. R. Evid. judge." Both the coLirts and psychological researchers concur 702-6); that jurors are likely to assign special weight to ajudge's ini- * documental , hearsay (Fed. R. Evid. 803-4, 901 -2. structiori becaLse juLrors view the judge as an impartial authority 1001-08): and figure. (United Stwe.s i Hickman. 592 F2d 931 (6th Cir.
Load more

Recommended publications
  • Examination of Witnesses [PDF]
    CHAPTER 32 JANUARY, 2012 ________________________________________________________ Examination of Witnesses Written by Eric Blumenson Table of Contents: §32.1 A Recommended Sequence for Trial Preparation .................................................... 2 §32.2 The Elements of Credibility ..................................................................................... 2 §32.3 Direct Examination .................................................................................................. 4 A. Choosing and Preparing Witnesses ................................................................... 4 B. Selecting the Areas of Testimony ...................................................................... 4 C. Techniques of Questioning ................................................................................ 5 §32.4 Cross-Examination ................................................................................................... 6 A. Selecting the Areas of Testimony ...................................................................... 6 1. Potential Areas of Cross-Examination ......................................................... 6 2. Narrow the Focus to Reduce the Risks ........................................................ 7 3. Subject Matter to Avoid in Cross-Examination ........................................... 9 B. Techniques of Questioning ................................................................................ 9 Cross-References: Checklists of issues in particular cases, § 11.10 Child witnesses, §§
    [Show full text]
  • Evidence in Criminal Proceedings Hearsay and Related Topics
    Criminal Law EVIDENCE IN CRIMINAL PROCEEDINGS: HEARSAY AND RELATED TOPICS A Consultation Paper LAW COMMISSION CONSULTATION PAPER No 138 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Brooke, Chairman Professor Andrew Burrows Miss Diana Faber Mr Charles Harpum Mr Stephen Silber, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WClN 2BQ. This Consultation Paper, completed for publication on 11 May 1995, is circulated for comment and criticism only. It does not represent the final views of the Law Commission. The Law Commission would be grateful for comments on this Consultation Paper before 31 October 1995. All correspondence should be addressed to: Ms C Hughes Law Commission Conquest House 37-38 John Street Theobalds Road London WClN 2BQ (Tel: 0171- 453 1232) (Fax: 0171- 453 1297) It may be helpful for the Law Commission, either in discussion with others concerned or in any subsequent recommendations, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all, or part, of a response in confidence will, of course, be respected, but if no such request is made the Law Commission will assume that the response is not intended to be confidential. The Law Commission Consultation Paper No 138 Criminal Law EVIDENCE IN CRIMINAL PROCEEDINGS: HEARSAY AND RELATED TOPICS
    [Show full text]
  • DNA Fingerprinting: Informed Consent and the Admissibility of Evidence Greg Horton
    DNA Fingerprinting: Informed Consent and the Admissibility of Evidence Greg Horton I: INTRODUCTION All human beings, no matter how varied their appearance, share one basic characteristic: they are built from cells, and in the nucleus of each cell is deoxyribonucleic acid - DNA. Further, the DNA is the same in every cell of the human body. DNA carries the genetic code which determines a person's physical characteristics. Because human beings are generally more similar than different in appearance (that is, for the most part we all have two legs, two arms, a head and a torso), most of our DNA structure is identical. However, approximately one- thousandth of the composition of each person's DNA is unique. Every individual, therefore, except an identical twin, has unique DNA. The existence of this unique DNA structure formed the basis for the develop- ment of a technique which has been described as "the most significant break- through in resolving serious crime since fingerprinting was invented".1 That technique is known as DNA fingerprinting, and it was developed in 1985 by Professor Alec Jeffreys of Leicester University. The essence of the technique is the subjection of a bodily sample, such as blood, semen, saliva, hair, or skin scrapings to a complicated laboratory process.2 This process results in a visualisation on Tande, "DNA Typing: A New Investigatory Tool" [1989] Duke L 474, citing Marshall, "'Genetic Fingerprints' May Catch Killer", LA Times, 11 March 1987, 11. 2 The actual process used is not discussed in this paper but in depth discussions of the technique can be found in most academic articles on the subject of DNA fingerprinting: see for example Kelly, Rankin & Wink, "Method and Applications of DNA Fingerprinting: A Guide for the Non- Scientist" [1987] Crim LR 105.
    [Show full text]
  • “Real Evidence” Refers to Any Tangible Object Or Sound Recording of a Conversation That Is Offered in Evidence
    11.01. Real Evidence (1) Definition. “Real Evidence” refers to any tangible object or sound recording of a conversation that is offered in evidence. (2) Admissibility. Real evidence is admissible upon a showing that it is relevant to an issue in the proceeding, is what it purports to be, and has not been tampered with. Proof that an object has not been tampered with and is what it purports to be depends on the nature of the object and, in particular, whether the object is “patently identifiable,” or “fungible.” (a) Patently identifiable evidence. When real evidence possesses unique or distinctive characteristics or markings and is not subject to material alteration that is not readily apparent, evidence identifying the object normally will constitute the requisite proof. (b) Fungible evidence. When real evidence is fungible, capable of being altered, contaminated, or replaced, or is a sound recording, in addition to testimony identifying the object, proof that the proffered evidence has not been tampered with is required and may be satisfied by: (i) a “chain of custody” (i.e. testimony of those persons who handled the object or recording from the time it was obtained or recorded to the time it is presented in court to identify the object or recording and attest to its unchanged condition); or (ii) proof of circumstances that provide reasonable assurances of the identity and unchanged condition of the object or recording. 1 (c) Sound recording. A sound recording of a conversation is admissible: (i) upon testimony of a participant in, or a witness to, the conversation that the recording is unaltered and completely and accurately reproduces the conversation at issue; or (ii) by a combination of testimony of a participant and an expert establishing the completeness, accuracy, and absence of alteration of the recording; or (iii) in addition to evidence concerning the making of the recording and identification of the speakers, by establishing a “chain of custody” (i.e.
    [Show full text]
  • Evidence (Real & Demonstrative)
    Evidence (Real & Demonstrative) E. Tyron Brown Hawkins Parnell Thackston & Young LLP Atlanta, Georgia 30308 I. TYPES OF EVIDENCE There are four types of evidence in a legal action: A. Testimonial; B. Documentary; C. Real, and; D. Demonstrative. A. TESTIMONIAL EVIDENCE Testimonial evidence, which is the most common type of evidence,. is when a witness is called to the witness stand at trial and, under oath, speaks to a jury about what the witness knows about the facts in the case. The witness' testimony occurs through direct examination, meaning the party that calls that witness to the stand asks that person questions, and through cross-examination which is when the opposing side has the chance to cross-examine the witness possibly to bring-out problems and/or conflicts in the testimony the witness gave on direct examination. Another type of testimonial evidence is expert witness testimony. An expert witness is a witness who has special knowledge in a particular area and testifies about the expert's conclusions on a topic. ln order to testify at trial, proposed witnesses must be "competent" meaning: 1. They must be under oath or any similar substitute; 2. They must be knowledgeable about what they are going to testify. This means they must have perceived something with their senses that applies to the case in question; 3. They must have a recollection of what they perceived; and 4. They must be in a position to relate what they communicated 1 Testimonial evidence is one of the only forms of proof that does not need reinforcing evidence for it to be admissible in court.
    [Show full text]
  • A Practitioner's Guide to the Management and Use of Expert Witnesses in Washington Civil Litigation
    A Practitioner's Guide To The Management And Use Of Expert Witnesses In Washington Civil Litigation Thomas V Harris* I. INTRODUCTION The Washington litigation process places a premium on the skillful management of expert witnesses.' Testimony presented by such witnesses is both readily admissible2 and virtually unlim- ited in scope. 3 Washington's adoption of the new Rules of Evi- * Partner, Merrick, Hofstedt & Lindsey, Seattle, Washington. A.B., Harvard Col- lege, 1970; J.D., Cornell University, 1973. 1. The same can be said of civil litigation within the federal system or any other jurisdiction that has adopted procedural and evidentiary rules based upon the Federal Rules of Civil Procedure and the Federal Rules of Evidence. 2. The decisions of the Supreme Court of Washington have encouraged the use of expert testimony. The court has limited itself to the statement that the trial court has broad discretion to determine whether expert testimony should be admitted. State v. Tatum, 58 Wash. 2d 73, 360 P.2d 754 (1961). A trial court will not be reversed unless it has abused that discretion in ruling upon the competency of a purported expert or in admitting expert testimony where an issue is one of "common knowledge." Ball v. Smith, 87 Wash. 2d 717, 556 P.2d 936 (1976); Poston v. Clinton, 66 Wash. 2d 911, 406 P.2d 623 (1965). In reality, a Washington trial court will virtually never be reversed for admitting expert testimony. Only where an expert is grossly and patently incompetent will the trial court refuse to admit his testimony. In Nelson Equip.
    [Show full text]
  • Evidence in Criminal Investigations
    Evidence in criminal investigations This guidance is based on the Criminal Justice Act 2003 and the Police and Criminal Evidence Act 1984 Version 5.0 Page 1 of 39 Published for Home Office staff on 06 July 2020 Contents Contents ..................................................................................................................... 2 About this guidance .................................................................................................... 4 Contacts ................................................................................................................. 4 Publication .............................................................................................................. 4 Changes from last version of this guidance ............................................................ 4 Definition of evidence ................................................................................................. 5 Definition of an exhibit ............................................................................................ 5 Admissibility of evidence ............................................................................................ 7 The ‘res gestae’ rule ............................................................................................... 8 Classifications of evidence ....................................................................................... 10 Direct evidence ........................................................................................................ 11 Circumstantial
    [Show full text]
  • Consultation Paper on Hearsay in Criminal Proceedings
    CONSULTATION PAPER ON HEARSAY IN CRIMINAL PROCEEDINGS EXECUTIVE SUMMARY The Sub-committee's approach to this topic is to consider the following questions: z whether the shortcomings of the existing hearsay law in criminal proceedings are serious enough to warrant its reform; z if reform is called for, what safeguards are a prerequisite for any reform; z what are the possible options for reform; z whether the proposed model of reform (which consists of a Core Scheme and a series of proposals on special topics) is sufficient to address the most pressing shortcomings of the present law; and z whether the recommendations in the Consultation Paper are compatible with the laws guarding the fundamental rights and freedoms in Hong Kong. Terms of reference 1. In May 2001, the Chief Justice and the Secretary for Justice directed the Law Reform Commission: "To review the law in Hong Kong governing hearsay evidence in criminal proceedings, and to consider and make such recommendations for reforms as may be necessary." 2. A sub-committee was appointed under the chairmanship of the Hon Mr Justice Stock to consider the subject. The consultation paper on "Hearsay in Criminal Proceedings" is the result of the sub-committee's detailed consideration of the subject. The consultation paper sets out the sub-committee’s proposals for reform of the law of hearsay in criminal proceedings and seeks to elicit comment on those proposals. What is "the rule against hearsay"? 3. A simple explanation of the term "hearsay" would be that "when A tells a court what B has told him, that evidence is called hearsay".1 The rule 1 R May, Criminal Evidence (Sweet & Maxwell, 3rd edition, 1995), at 179.
    [Show full text]
  • Exploring the Ethical Obligation to Avoid Frivolous Claims of Attorney-Client Privilege
    STRASSBERGFINAL 1/15/2007 11:57:13 AM Privilege Can Be Abused: Exploring the Ethical Obligation to Avoid Frivolous Claims of Attorney-Client Privilege Maura I. Strassberg∗ I. THE ETHICAL STATUS OF ATTORNEY-CLIENT PRIVILEGE ...........420 II. THE ETHICAL BASIS OF LIMITING CLAIMS OF PRIVILEGE ...........422 A. Abuse of Privilege as a Violation of the Duty to Provide Competent Representation................................................422 B. Abuse of Privilege as a Violation of the Ethical Duties Not to Make Frivolous Claims or Defenses and Fairness to the Opposing Party..........................................426 III. ETHICALLY IMPERMISSIBLE CLAIMS OF ATTORNEY-CLIENT PRIVILEGE ...................................................................................432 A. Claims of Privileges Made for Frivolous Purposes ............433 B. Claims of Privilege Made in a Frivolous Manner ..............440 1. Lack of Factual Inquiry.................................................441 2. Lack of Legal Research of Analysis ..............................449 3. Lack of a Complete Privilege Log ................................461 C. Substantively Frivolous Claims of Privilege .......................465 1. General Characteristics of Substantively Frivolous Claims ............................................................................467 2. Specific Claims of Privilege that are Substantively Frivolous ........................................................................471 a. Frivolous Because No Legal Advice .......................472 b. Frivolous
    [Show full text]
  • Real Evidence in Criminal Law
    Denver Law Review Volume 29 Issue 7 Article 4 June 2021 Real Evidence in Criminal Law Albert Brenman Robert Rosnik Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation Albert Brenman & Robert Rosnik, Real Evidence in Criminal Law, 29 Dicta 261 (1952). This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. July, 1952 DICTA REAL EVIDENCE IN CRIMINAL LAW ALBERT BRENMAN AND ROBERT ROSNIK* Demonstrative or real evidence is evidence addressed directly to the senses without the intervention of witnesses, as by actual sight, hearing, or taste. In criminal law such evidence is inad- missible if it explains no fact and is not relevant to any disputed issue. Models, casts, and other reproductions of relevant objects may be used to illustrate oral testimony.1 In this article an attempt will be made to point out various types of real evidence that the Colorado Supreme Court has held admissible. REAL EVIDENCE WHICH FORMS PART OF THE TRANSACTION Articles which form a part of the transaction or which serve to unfold or explain it may be accepted in evidence if they are properly identified and are in substantially the same condition as at the time of the offense. In Cliff v. People 2 where the defendant, a bank president, was being prosecuted for embezzlement, certain bank books and memoranda were admitted over the defendant's objection that they were not in defendant's handwriting and were not shown to have been made under defendant's direction or with his knowl- edge.
    [Show full text]
  • Evidence Under the Rules Text, Cases, and Problems
    ASPEN CASEBOOK SERIES EVIDENCE UNDER THE RULES TEXT, CASES, AND PROBLEMS Eighth Edition Christopher B. Mueller Henry S. Lindsley Professor of Procedure and Advocacy University of Colorado School of Law Laird C. Kirkpatrick Louis Harkey Mayo Research Professor of Law The George Washington University Law School Includes small portions of the book for valuation purposes only. Please contact your sales rep if you are interested in seeing more. Copy right © 2015 Christopher B. Mueller and Laird C. Kirkpatrick Published by Wolters Kluwer in New York. Wolters Kluwer serves customers worldwide with CCH, Aspen Publishers, and Kluwer Law International products. (www.wolterskluwerlb.com) No part of this publication may be reproduced or transmitted in any form or by any means, elec- tronic or mechanical, including photocopy, recording, or utilized by any information storage or retrieval system, without written permission from the publisher. For information about permis- sions or to request permissions online, visit us at www.wolterskluwerlb.com, or a written request may be faxed to our permissions department at 212-771-0803. To contact Customer Service, e-mail [email protected], call 1-800-234-1660, fax 1-800-901-9075, or mail correspondence to: Wolters Kluwer Attn: Order Department PO Box 990 Frederick, MD 21705 Printed in the United States of America. 1 2 3 4 5 6 7 8 9 0 ISBN 978-1-4548-4952-0 Library of Congress Cataloging-in-Publication Data Mueller, Christopher B., author. Evidence under the rules: text, cases, and problems / Christopher B. Mueller, Henry S. Lindsley Professor of Procedure and Advocacy, University of Colorado School of Law; Laird C.
    [Show full text]
  • Extra-Legal Materials and the Law of Evidence John S
    Maryland Law Review Volume 15 | Issue 4 Article 5 Extra-legal Materials and the Law of Evidence John S. Strahorn Jr. Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Evidence Commons Recommended Citation John S. Strahorn Jr., Extra-legal Materials and the Law of Evidence, 15 Md. L. Rev. 330 (1955) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol15/iss4/5 This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. MARYLAND LAW REVIEW [VOL. XV EXTRA-LEGAL MATERIALS AND THE LAW OF EVIDENCE* By JOHN S. STRAHORN, JR.t One of the recent trends in jurisprudence has been functionalism or the demand that extra-legal considerations be used in developing rules of law. This idea - that rules of law should be tested by the ends sought to be served and by the specific materials relevant thereto - is not only theoretically useful in the judicial and legislative proc- esses but is more immediately valuable in the juridical process of writing, teaching, and studying the materials which are persuasive of judicial decision. Studying book-law in terms of extra-legal con- siderations leads to increased efficiency in learning. The psycholo- gists tell us that meaningful material is more easily learned than mean- ingless. Applying extra-legal considerations to legal materials tends to make the latter more meaningful.
    [Show full text]