Defining the Evidence

The rules defining admissible trial evidence have been built piecemeal over the years until they now resemble a cross between the Talmud and the Encyclopaedia Britannica. Each rule was usually added for a specific reason, but they vary from state to state, from one of the 93 federal districts to another, even, according to the judge's discretion, from courtroom to courtroom. All too often, the complexity actually impedes a court's efforts to dispense justice. Last week, exercising its administrative authority over the federal judicial system, the Supreme Court issued a 45-page set of uniform rules for federal courts, the first such code on evidence in U.S. history.

It took a 15-man advisory committee seven years to draft the new federal rules. They will hardly revolutionize U.S. courtrooms; what they will do is permit a wider range of evidence. The biggest change is a "broader discretion to admit hearsay," says Stanford Law Professor John Kaplan. Hearsay--generally any information to which a witness cannot testify of his own firsthand knowledge--has traditionally been forbidden except in certain specified circumstances (for example, statements made by a person against his own interest). Now a judge may admit any hearsay having "circumstantial guarantees of trustworthiness."

Other changes:

> On crossexamination, a lawyer can ask about any relevant matter rather than having to relate his questions to the direct testimony.

> The defense will be permitted to introduce another man's confession to the crime, if he is unavailable and if it is corroborated.

> No witness may be required to reveal a "secret of state" or "official information" if its disclosure "is shown to be contrary to the public interest."

> A lawyer will be allowed to attack his own witness if he decides the witness is not telling all he knows.

> Confidences to psychotherapists and to clergymen are now privileged, a formal status they did not have before. That privilege does not cover a doctor who is asked in court about treatment of a purely physical ailment.

Federal judges, a notably independent lot, will still have the authority to adjust the rules to the particulars of each case. And appeals courts do not often reverse a trial judge's decisions about evidence. Even so, the rules should move the federal courts toward greater uniformity, and should influence state courts as well. The Supreme Court announced that the code would become effective July 1 unless Congress votes it down, which is unlikely.

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