Preface

This book is designed to provide the reader with a concise distillation of the similarities and differences between the Federal Rules of Evidence and the California Evidence Code. The book, however, is not a substitute for a standard evidence text. Citation to authority in the form of footnotes has been kept to a minimum, and although the book compares almost all of the provisions of the Rules and the Code, the focus is on the major ones.

Because the book is intended as a supplement to a standard evidence text, discussion of the policies and concerns that gave rise to the rules of evidence is limited. Enough explanation is provided, however, to help the reader understand the significance of the provisions compared. For readers interested in a fuller treatment of the subject from a California perspective, I recommend my book, Evidence: The California Code and the Federal Rules — A Problem Approach (Thomson West 4th ed. 2008).

No attempt made to assess which body of evidence law provides better outcomes for the bench, bar, and parties. Readers interested in my assessment should consult my book or a series of articles I have written on this subject. The articles can be found on the website of the California Law Revision Commission or in the University of San Francisco Law Review beginning with Volume 37. The California Legislature enacted the California Evidence Code after considering a study by the California Law Revision Commission recommending an evidence code to replace the hodgepodge of rules that were used in California courts prior to1965. The Federal Rules enacted by Congress ten years later used the Evidence Code as one of its models. At the request of the Commission, I have prepared a number of studies examining whether the Code should be replaced in part or in whole by the Federal Rules.

The comparison in this book is based on the organization of the Federal Rules of Evidence. Each chapter corresponds to an Article of the Federal Rules and bears a similar title. The sections of each chapter, however, do not correspond to the numbering system of the Rules or the Code. Each section compares a discrete rule or topic in a "Comparative Note". To assist the reader, each note is preceded first by the applicable Federal Rule or Rules and then by the corresponding Evidence Code Section or Sections. To assist the reader further, a Table of Rules indicates the book section where the pertinent Federal Rule is found, and a Table of Statutes similarly indicates the book section where the pertinent California Evidence Code is located.

On December 1, 2011, the "restyled" Federal Rules of Evidence went into effect. According to the Advisory Committee Note to Rule 101, the Federal Rules were rewritten:

to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Beginning with the 2012 edition, the former Rules have been replaced with the restyled Rules.

Miguel A. Méndez

Professor of Law

U.C. Davis School of Law

Adelbert H. Sweet Professor of Law, Emeritus

Stanford University

January 2012