The other Prop 8.
Jun. 17th, 2009 02:05 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
elwenI think it's safe to assume that most of you on the flist who have had occasion to think about it consider the California voter initiative system to be pretty screwed up. As Joel Stein (one of my journalist heroes) said in a recent issue of Time, (paraphrased) In California we vote on everything, including whether we still have to keep voting. There is no good reason our state constitution needs the bazillion amendments it has -- it kind of defeats the purpose of it being a constitution in the first place and not just a statute.
Anyway, last week I discovered another delightful legacy of the voter initiative system. Ironically, it was also a Prop 8. 1982's Prop 8 (linked in case you want the text), also known as the "Truth in Evidence" amendment, was one of those "Victims' Bill of Rights" type proposals. I haven't read the actual text, but apparently somewhere in there, it more or less said "In criminal cases, all relevant evidence is admissible." Which makes it very important for the bar exam.
Now, like all constitutional amendments, it just inserts itself into the constitution, and all contrary statutes must give way. But it's not like there's automatically some statutory revision process, so all the contrary statutes are still on the books. Even so, that would have been okay in this case, because relevance is the lowest threshold that all evidence must pass. Normally, you then have to consider a whole bunch of other things like whether it's character evidence, whether it's hearsay, whether it's privileged, and so on. But Prop 8 just wipes out all of that, right? So now, if it's civil, you use the statutes, and if it's criminal, you just ask for relevance. Simple!
...not.
Courts did not like Prop 8. (For good reason, IMO. More on that later.) So they decided that huge swaths of evidence law were not, in fact, invalidated by Prop 8. Including most of the character evidence rules, the rule against hearsay, and privileges. Where Prop 8 proposed to wipe out everything, courts resurrected most of it. But, unfortunately, not all of it. So now you have to figure out how things work under the normal rules, then figure out if Prop 8 trumps, and only then do you know whether evidence is admissible or not.
As an aside, I wonder if there was public outcry against this "judicial activism" and controversion of the will of the people and all that. I mean, why wasn't there an attempt to pass another amendment along the lines of "No, we really did mean the hearsay comes in, too"? Could it be that most voters and probably the drafters of the initiative didn't know the first thing about evidence law and why it is the way it is? Heaven forbid!
Here's the way it works. Relevance is a pretty simple question that really boils down to "Do we care?" If you're suing in strict products liability for a manufacturing defect and the manufacturer is trying to show how careful it is in making its products, we don't care. It's strict products liability: the product's defective, the manufacturer pays. Obviously, we're not going to let in evidence that doesn't make a difference to the case.
But that doesn't mean all relevant evidence should come in. There are all sorts of other problems, which is why there is so much evidence law. Just a few to think about: evidence that mainly plays to the irrational sympathies of the jury; evidence that is mostly a waste of time; evidence that is totally unreliable; evidence that a jury will believe too readily. Here's an example: a sole eyewitness testifies that she saw the defendant shoot the victim. Next, the prosecution calls another witness to testify that the first witness is a good and honest person. Relevant? Yes! It makes a huge difference whether the first witness is a liar or a saint who has never told a lie in her life. Under Prop 8 by its literal terms, the prosecution can call witness after witness just to bolster the first witness' trustworthiness. If each witness' testimony even incrementally increases the chance that the first witness was telling the truth, then it's relevant. Are you, potential juror, going to stand for that? I didn't think so.
And thus, after the relevance requirement comes a blanket rule that judges have discretion to balance evidence's probative value (how much we care) against unfair prejudice, waste of time, confusion of issues, etc. (And the courts saved this one from Prop 8.) So maybe that's good enough. We like case-by-case determinations because they are very flexible and allow justice to be done. Right?
Except case-by-case determinations become in themselves a waste of time. There are some issues that come up so often, that so consistently have a single answer, that we make them into rules. Like the rule against bolstering a witness' credibility before that credibility has been called into question. (I.e. wait until the defendant calls her a liar, and then you can start calling people to testify what a saint she is.) And that is evidence law. (For the most part. There are rules that people will find stupid, of course, but you can usually at least see where lawmakers were trying to go with it.)
So... Prop 8 was shortsighted and stupid. And the courts were wise to cut back its scope. But where Prop 8 still holds sway, analyzing evidence problems is a pain in the ass. I guess all I can do is hope that the evidence question this summer, if there even is one, is a civil case.
Anyway, last week I discovered another delightful legacy of the voter initiative system. Ironically, it was also a Prop 8. 1982's Prop 8 (linked in case you want the text), also known as the "Truth in Evidence" amendment, was one of those "Victims' Bill of Rights" type proposals. I haven't read the actual text, but apparently somewhere in there, it more or less said "In criminal cases, all relevant evidence is admissible." Which makes it very important for the bar exam.
Now, like all constitutional amendments, it just inserts itself into the constitution, and all contrary statutes must give way. But it's not like there's automatically some statutory revision process, so all the contrary statutes are still on the books. Even so, that would have been okay in this case, because relevance is the lowest threshold that all evidence must pass. Normally, you then have to consider a whole bunch of other things like whether it's character evidence, whether it's hearsay, whether it's privileged, and so on. But Prop 8 just wipes out all of that, right? So now, if it's civil, you use the statutes, and if it's criminal, you just ask for relevance. Simple!
...not.
Courts did not like Prop 8. (For good reason, IMO. More on that later.) So they decided that huge swaths of evidence law were not, in fact, invalidated by Prop 8. Including most of the character evidence rules, the rule against hearsay, and privileges. Where Prop 8 proposed to wipe out everything, courts resurrected most of it. But, unfortunately, not all of it. So now you have to figure out how things work under the normal rules, then figure out if Prop 8 trumps, and only then do you know whether evidence is admissible or not.
As an aside, I wonder if there was public outcry against this "judicial activism" and controversion of the will of the people and all that. I mean, why wasn't there an attempt to pass another amendment along the lines of "No, we really did mean the hearsay comes in, too"? Could it be that most voters and probably the drafters of the initiative didn't know the first thing about evidence law and why it is the way it is? Heaven forbid!
Here's the way it works. Relevance is a pretty simple question that really boils down to "Do we care?" If you're suing in strict products liability for a manufacturing defect and the manufacturer is trying to show how careful it is in making its products, we don't care. It's strict products liability: the product's defective, the manufacturer pays. Obviously, we're not going to let in evidence that doesn't make a difference to the case.
But that doesn't mean all relevant evidence should come in. There are all sorts of other problems, which is why there is so much evidence law. Just a few to think about: evidence that mainly plays to the irrational sympathies of the jury; evidence that is mostly a waste of time; evidence that is totally unreliable; evidence that a jury will believe too readily. Here's an example: a sole eyewitness testifies that she saw the defendant shoot the victim. Next, the prosecution calls another witness to testify that the first witness is a good and honest person. Relevant? Yes! It makes a huge difference whether the first witness is a liar or a saint who has never told a lie in her life. Under Prop 8 by its literal terms, the prosecution can call witness after witness just to bolster the first witness' trustworthiness. If each witness' testimony even incrementally increases the chance that the first witness was telling the truth, then it's relevant. Are you, potential juror, going to stand for that? I didn't think so.
And thus, after the relevance requirement comes a blanket rule that judges have discretion to balance evidence's probative value (how much we care) against unfair prejudice, waste of time, confusion of issues, etc. (And the courts saved this one from Prop 8.) So maybe that's good enough. We like case-by-case determinations because they are very flexible and allow justice to be done. Right?
Except case-by-case determinations become in themselves a waste of time. There are some issues that come up so often, that so consistently have a single answer, that we make them into rules. Like the rule against bolstering a witness' credibility before that credibility has been called into question. (I.e. wait until the defendant calls her a liar, and then you can start calling people to testify what a saint she is.) And that is evidence law. (For the most part. There are rules that people will find stupid, of course, but you can usually at least see where lawmakers were trying to go with it.)
So... Prop 8 was shortsighted and stupid. And the courts were wise to cut back its scope. But where Prop 8 still holds sway, analyzing evidence problems is a pain in the ass. I guess all I can do is hope that the evidence question this summer, if there even is one, is a civil case.
