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Federal Criminal Cases: The Importance of Knowing the Rules of Evidence

Kish Law LLC

Here in gorgeous Atlanta, Georgia I am working on a client’s case which involves questions about whether evidence was properly admitted into the trial.  This effort reminded me of a two major observations that apply to all of my federal criminal cases which I handle both here in Atlanta as well as other parts of the country in which I practice.

FIRST: In federal court, evidence is admitted (or kept out) pursuant to two sets of rules.  In other words, you need to know the rules before the attorney can really help his or her client.

One set of rules comes from our beloved United States Constitution.  This venerable document contains the promise of “due process”.  It also the promise (in the Fifth Amendment) that no person shall be required to be a witness against him or herself.  The wonderful Sixth Amendment says that all people are entitled to the assistance of an attorney when charged with a crime, and perhaps most importantly, that the accused person has the right to “confront” her or his accusers.

The second set of rules are found in the handily named “Federal Rules of Evidence” or the “FRE”. These rules talk about relevance or irrelevance of certain types of information.  In the FRE you will finds lots of rules (and exceptions) for whether what we lawyers call “hearsay” can be used in a trial.  There are yet more rules that deal with the whether certain documents and other materials are allowed to be used by one side or the other. There are lots of rules and exceptions to the rules in the FRE.

SECOND: you cannot learn these rules from reading a book or website.  This lesson came back to me as I mapped out my week ahead and realized I will soon be attending the 40th reunion of my law school’s class at the University of Georgia.  I first “learned” evidence in a mandatory class at UGA, and did fairly well.  However, when I began as a practicing lawyer I quickly realized that the theory and the reality are often very different from one another.

The bottom line is that it takes a lawyer several years of winning and losing some evidentiary issues in the real world before that attorney truly “knows” the rules of evidence.  Even now, I like to go back and review much of what I first learned 40 years ago to keep a fresh perspective.  That is what I am doing much of this week and I hope the effort will help my client’s case.

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