At any event, don’t count on someone else to notice and comment for you.
Again, all that is needed for a bad result is that YOU do not do your part.
The deadline is October 5, 2007 – so there is time to participate.
Please share widely!
Reality-based commentary on politics.
no, seriously.
In our state it is piecemeal. A few statutes [for example, on the psycho-therapist patient privilege] but otherwise, all discretion, caselaw, and differing from court to court, county to county.
As I understand it, the draft is a restatement of our law of evidence, not a codification. It is meant as a guide, but it will not prevent the courts from further common-law development of the law of evidence and will not have the force of law. (Of course, as the ALI’s Restatements of the Law show, documents like this that claim to be merely restating the law can take on a life of their own and become authoritative). So while folks should definitely read them and comment as appropriate, I think AmberPaw’s comment may overstate the draft’s importance. Just my two cents.
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TedF
Just as the “Canons” and the “restatement” take on a “life of their own” this “mere codification” will act like a “gold standard” and be the starting point, and what is interpreted.
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That all being said, Ted, only time will tell whether even after comments, any “codification” or “rules” are even adopted.
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Our SJC tried once before, and there was so much contention, and so little agreement, that nothing at all was adopted – that happened in 1981 or 1983 [I am sure one of you know – I moved here in Dec. of 83]…and is why there is no “set of rules of evidence” or “codification of the MA law of evidence” but an ad hoc jumble of statute and case law applied with great discretion.
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But if those of us who care about the law do not read and comment, I argue that whatever we get – we deserve.
AmberPaw, let me see if we’re on the same page… Your beef is not that there’s anything wrong with the law of evidence as it is now, but that individual trial judges get the law wrong. So I think you’ll agree with me that comments on the draft are appropriate if we think it misstates the law of evidence, but that there’s no point in commenting on this document if we think that the law of evidence is in need of reform. Have I got you?
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TedF
Let me finish studying the draft before I really go into detail. And that may take a while because I have several appellate deadlines. As I think I may have mentioned, I have an active solo law practice of which more than 60% is appellate.
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As far as I can tell, there is NO consistent application of evidentiary law in Juvenile Courts. The Probate and Family Courts do a better job [though some will disagree] – I do not practice in District or Superior Court. So I do not know “how evidentiary rulings are faring” in those courts. Perhaps a “dear reader” will comment.
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I would prefer a clear codification which is consistent with the Federal Rules of evidence, and which all courts were expected to be familiar with and follow. I don’t know yet if the proposed codification is accurate to case law and consistent with the federal rules of evidence because I simply have not had time to fully study it – yet.
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I cannot say more than that – yet!
…adopt the federal rules of evidence. The fed’s rules aren’t all that bad.
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As for the various privileges, the only one that made any sense to me was the attorney client privilege, and that was narrowly focussed to allow the attorney to assist his client in the legal system. None of the other privileges made any sense.
It can be cited in a brief.
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When a judge does their ‘homework’, the “Guide” to evidence adopted by the SJC will be the #1 source consulted.
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Oh – and I do write briefs.
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The way to check how many briefs or appeals any attorney has done in this state is to go to:
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http://www.ma-appell…
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Then you type in the Attorney’s last and first names. In this case, last is : Butler, First is: Deborah.
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You get 107.
…I’ve never done any practice in the state courts.
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To me, a “guide” that you are describing is a textualized explanation of what someone believes a “rule” is supposed to mean.
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I would presume that, if MA has adopted the federal rules of evidence, that textual descriptions (“guides”) of those rules–if they exist–should be at least moderately persuasive in MA state courts.
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On the other hand, the official rule would be the rule itself, not the guide. So why not cite to the rule in your briefs, and describe how courts in the various jurisdictions have applied the rule (citing to cases, of course).
In the state courts of this state, my experience indicates that such a “guide” would actually function like rules…