In the common law system of evidence, logically relevant evidence is presumptively admissible. The logical relevance of an item of evidence, however, does not guarantee its admission. The common law has developed a number of rules that exclude logically relevant evidence. In some cases, the common law excludes evidence because of doubts about the credibility or reliability of that type of evidence. For example, the best evidence rule rests primarily on skepticism about the trustworthiness of secondary evidence concerning a document's contents.- When the issue is the content of a document, the common law prefers that the document itself be produced in court, because the production of the document is obviously the most reliable method of establishing its contents. The common law enforces this preference by excluding other evidence of the document's contents, such as oral testimony describing the document, unless there is an adequate excuse for the nonproduction of the document. In other cases, the common law excludes evidence to promote a social policy. The common-law privileges for confidential relationships are illustrative. For example, the attorney-client privilege often bars the admission of relevant, trustworthy evidence in order to encourage the flow of information between client and attorney.
The Federal Rules of Evidence became effective on June 1, 1975.The Rules are now in effect not only in federal court, but also in the thirty-one states that have adopted evidence codes patterned after the Federal Rules.6 While the Federal Rules codify most of the common-law exclusionary rules of evidence, the Rules omit others. For example,almost all jurisdictions require that a prosecutor corroborate any confession by the defendant.' In order to introduce a defendant's confession, the prosecutor must present independent, corroborating evidence that a criminal act has occurred. The rationale for the corroboration requirement is doubt about the credibility of confession evidence; confessions are sometimes coerced, and even when there is no police coercion, an innocent person may have an ulterior motive or psychological compulsion to confess to a crime., The corroboration requirement is one of the common-law doctrines omitted from the Federal Rules of Evidence. In other jurisdictions, as a matter of decisional law the courts decided to exclude generally any statements made by a defendant during plea bargaining. These courts did so to further the social policy of encouraging plea bargaining, which eases the burden on the criminal justice system. Under this case law doctrine, if the police questioned the defendant and the defendant reasonably believed that he could bar-gain for concessions during the questioning, the defendant's statement to the police might be excludible. Like the corroboration rule, how-ever, this doctrine has been omitted from the Federal Rules; the only exclusionary rule recognized by the Federal Rules is restricted to "plea discussions with an attorney for the prosecuting authority ....
Edward J. Imwinkelried,
The Meaning of Probative Value and Prejudice in Federal Rule of Evidence 403: Can Rule 403 Be Used to Resurrect the Common Law of Evidence?,
41 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol41/iss5/1