FEDERAL
RULESOF EVIDENCE
MANUAL
(SECOND
EDITION).By Stephen A.
Saltzburg and Kenneth R. Redden. The Michie Company, Charlottesville,
Va., 1977, pp. XXXI, 887. $50.00.
Reviewed by Robert A. Weninger*
Although there has been an outpouring of scholarship on the Federal
Rules of Evidence enacted in 1975,' the urgent need for an accurate and
reasonably comprehensive one-volume text on the Rules has remained
largely unsatisfied. The Rules pamphlets published by the major publishcontaining each rule followed by the Advisory Committee
ing companie~,~
Note and its legislative history, are compact but furnish no critical discussion or overall view of the federal law of evidence. What has been needed
is a compact book that states existing law, traces the origins of the Rules,
explains their meaning and appraises the way they work-in short, a book
that is a notable achievement in its own right. The Federal Rules of Evidence ManuaP by Professors Saltzburg and Redden is such a book.
The book is well organized, easy to use, and kept up to date by the use
of pocket part supplements. The manual focuses primarily on a uniform
analysis of each rule,' beginning with the official text of the particular rule
under discussion and including the Advisory Committee Note that accompanies each rule approved by the Supreme Court in 1972. The Notes contain an abundance of material helpful in understanding and interpreting
the Rules. In addition, the editors discuss and, when necessary, criticize
all federal decisions important to a consideration of the rule. Although
federal decisions predominate, state decisions are included when useful.
Any significant commentary on a rule is also discussed, and the editors
readily express agreement or disagreement with the views of the various
commentators. To facilitate investigation of each rule's legislative history,
all congressional materials are systematically arranged and quoted at
length.
Busy judges and attorneys, however, may lack the time to survey the
profusion of materials available for construction of the Rules. To them the
most valuable part of the analysis may be the Editorial Explanatory Comment immediately following the text of each rule. The purpose of the
editorial comments is to identify and describe any sweeping changes made
by an individual rule in existing law.6 The editors achieve this purpose by
*- Professor of Law, Texas Tech University; B.B.A., University of Wisconsin, 1955; LL.B.,
University of Wisconsin, 1960; LL.M., University of Chicago, 1964.
Act of Jan. 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926 (1975).
See, e.g., FEDERAL
JUDICIAL
CENTER,FEDERAL
RULESOF EVIDENCE
FOR UNITED
STATES
COURTS
AND MAGISTRATES
(1975).
& K. REDDEN,
FEDERAL
RULESOF EVIDENCE'MANUAL
(2d ed. 1977).
S. SALTZBURG
Id. at 7-726.
Id. at XXW.
Heinonline -- 65 Va. L. Rev. 779 1979
780
Virginia Law Review
[Vol. 65:779
providing a lucid explanation of each rule and its relationship to preexisting case law. This section thereby enables the reader to quickly research a particular rule by first reading the statute and then consulting the
editorial comments in the book and any updated comments in the supplement. Readers will find the editors' comments useful: the comments identify problems and areas of confusion in particular rules or evidentiary
practices and suggest changes for improved administration of justice.
Saltzburg and Redden supplement the discussion of the Rules with material tbat imparts an understanding of the dynamic process of which the
Rules are a part. The editors precede the discussion of the Rules with
material that describes the struggle over codification and illuminates the
debate over whether lawmaking should be achieved in this domain by
legislation or case-by-case adjudication.%The discussion of the Rules is
followed by an explanation7 of the interrelationships between the Rules
and certain provisions of the Federal Rules of Civil Procedure, the Federal
Rules of Criminal Procedure, and the United States Code. The editors also
have included those Rules originally approved by the Supreme Court in
1972, but not thereafter enacted by the Congres~.~
Though rejected, these
Rules are useful because some evidentiary questions can be answered by
comparing the language of an enacted rule with that of a rejected rule. In
addition, to aid practitioners in thosetstates that have adopted codes of
evidence based largely on the Federal Rules, the book contains a helpful
Federal-State Cross Reference Chartecomparing each federal rule with the
corresponding state rule and identifing any differences between them.
Particularly noteworthy is the brief portion of the book which discusses
the relationship between the Rules and the common law.1° This discussion
will be especially helpful to judges because it attempts to clarify the extent
to which courts may continue to use and modify common-law principles
when adjudicating cases under the Rules. Codification does not mean that
the law of evidence has reached its final stages of growth or that preexisting law has been entirely displaced. The editors argue persuasively
that in applying certain federal rules "there must be reference to common
law rules and principles, and a t times the reliance on tbe common law
must be substantial."ll
There are gaps in specific rules, and large areas of evidence law are not
even covered by the Rules. Judges may wonder how gaps are to be filled,
how the Rules are to be completed, and who is to be responsible for doing
so. The editors provide answers both in this summary section and in their
' Id. at 1-6.
Id. at 727-34.
Id. at 745-74.
Id. at 775-98.
loId. at 735-44.
Id. at 735.
Heinonline -- 65 Va. L. Rev. 780 1979
Book Review
19791
781
editorial comments through their analysis of the congressional intent behind each provision of the Rules. Saltzburg and Redden argue that different sections must be treated differently and that there are various kinds
of relationships between the Rules and the common law.I2 In many instances Congress seems to have intended that the courts follow the common
law rule or, if necessary, modify it in the light of reason and experience.
In some areas Congress appears to have intended that the courts break
with the past and develop a new body of law through case-by-case adjudication. In still other situations the legislative intent is clear that Congress
must approve of any changes sought by the courts.
Congress, for example, made it almost impossible for the law of hearsay
to grow and develop as it had in the past. Traditionally, the law of hearsay
had been open-ended and new hearsay exceptions had evolved through
adjudication, largely because of the impossibility both of foreseeing the
future and providing for every contingency through detailed rules. Rule
802, however, provides that new hearsay exceptions can be created only by
"these rules or by other rules prescribed by the Supreme Court pursuant
to statutory authority or by Act of Congress."I3 Further, under the procedure prescribing amendments to the Rules," the Supreme Court cannot
create new hearsay exceptions if either House of Congress disapproves. The
command is clear: Congress, rather than the courts, will formulate major
policy in the hearsay domain. Congress has demonstrated its reluctance to
vest the courts with discretion to grant hearsay exceptions; courts can
grant exceptions not specifically authorized by the Rules only when the
hearsay evidence is highly reliable and more probative than other evidence
that reasonably can be procured.15 As the editors point out, to prevent
injustice in particular cases Congress in effect has permitted the courts,
to admit-within prescribed limits-otherwise inadmissible hearsay, even
though courts may not create new exceptions. Whether, as a practical
matter, courts will observe or exceed these limits is a question, Saltzburg
and Redden suggest, that only time can answer: "In practice, adjudication
may produce precedents with all the force of amendments to the Rules.
Thus, if the Congressional oversight that the House intended is ever to
occur, the House may have to read the advance sheets with great care."I6
The editorial discussion of the foundation requirements for the admissibility of one co-conspirator's statement against another," is an example of
the manual's usefulness for judicial interpretation of the Rules. To be used
as substantive evidence under rule 801(d)(2)(E), the extrajudicial
It
Id.
'=FED. R. E m . 802.
" 28 U.S.C. 8 2076 (1976).
FED.R. E m . 803(24), 804(b)(5).
S. SALTZBURG
& K. REDDEN,
supra note 3, at 461-70.
l7
Id. at 461-70.
Heinonline -- 65 Va. L. Rev. 781 1979
782
Virginia Law Review
[Vol. 65:779
statement must be shown to be that of a co-conspirat~r.~~
Traditionally,
the trial judge requires that the demonstration be made to his satisfaction
before admitting the evidence. The difficulty in a conspiracy case arises
out of the interrelationship between the preliminary question and the ultimate issue in the trial of the existence of the conspiracy and the defendant's participation in it. How can the judge properly make his preliminary determination before the case is finally resolved? How much independent evidence of the non-declarant's participation in the conspiracy must
be shown before conspirators' statements may be considered by a jury?
The cases are confusedIgand the Rules do not address the problem. To aid
courts in selecting the proper standard of proof for the co-conspirator exception, the editors comment on the adequacy of three alternative approaches taken in the courts of appeals and explain their preference for a
preponderance of the evidence test to be applied by the trial judge rather
than either a prima facie or reasonable doubt standard.
The editors first discuss the approach requiring that the trial judge apply
a prima facie standard to the independent evidence. This approach was
explained in Carbo v. United States,2owhere the Ninth Circuit said, "the
test is not whether the defendants' connection had by independent evidence been proved beyond a reasonable doubt, but whether, accepting the
independent evidence as credible, the judge is satisfied that a prima facie
case . . . has been made."21 Under this test, once sufficient independent
evidence is introduced of the non-declarant's participation in the conspiracy, all of the evidence, including conspirators' statements, goes to the jury
for a determination of guilt or innocence. It is unclear, however, how much
proof is required. To have a prima facie case, must the independent evidence merely be sufficient to support a finding in a civil case? Or must the
independent evidence be sufficient to support a finding of guilt beyond a
reasonable doubt in a criminal case? If the lesser standard is applied, the
editors contend, there is little screening by the trial judge to protect the
defendant.22If the greater standard is employed, there is still too little
protection for the accused because, as a practical matter, trial judges hesitate to withdraw a case from the jury on an evidentiary ruling." Moreover,
under either formulation of the test the trial judge is required to accept
the independent evidence as credible and view the proof in the light most
favorable to the government. As a result, even if the judge believes a
FED.R. EVID.801(d)(2)(E).
Compare United States v. Petrozziello, 548 F. 2d 20 (1st Cir. 1977) with United States
v. Calaway, 524 F.2d 609 (9th Cir. 1975), cert. denied, 424 U.S. 967 (1976).
20 314 F.2d 718 (9th Cir. 1963), cert. denied, 377 U.S. 953 (1964).
Z1 Id. at 737.
* "The lower the prima facie evidence requirement, the less protection afforded." S. SALTZBURG & K . REDDEN,supra note 3, at 463.
" Id.
IS
l9
Heinonline -- 65 Va. L. Rev. 782 1979
19791
Book Review
783
prosecution witness to be untruthful, the prima facie test will almost always be satisfied and all the evidence will go to the jury. The editors
disapprove of this approach, particularly because it requires the judge to
assume the credibility of the evidence in questi~n.~'
Saltzburg and Redden prefer a test that requires the trial judge to find
by a preponderance of the evidence that the government has proved the
existence of a conspiracy on the basis of independent evidence.% This
, ~ Third Circuits."
standard is now employed in the First,26S e ~ o n dand
Unlike the prima facie approach, the preponderance test requires the trial
judge not to accept but to assess the credibility of the independent evidence. In other words, the hearsay statements will not go to the jury unless
the judge believes a conspiracy actually exists. The defendant is thus given
greater protection.
This approach has been attacked by Judge WeinsteinZgwho fmds the
preponderance test unsatisfactory as setting the standard of proof too low.
He argues that the better practice would be to require a very high degree
of proof before admitting the statement: "Only if the court is itself convinced beyond a reasonable doubt-considering hearsay as well as nonhearsay evidence-of the conspiracy [and] defendant's membership . . .
should it admit."30 The beyond a reasonable doubt standard of proof reflects the judgment that the defendant should have the benefit of all reasonable doubts relating to the elements of a criminal charge; the argument
that adoption of any lesser standard in a criminal proceeding dilutes the
protection guaranteed the defendant seems appealing. The editors, however, do not hesitate to assert their objections to Judge Weinstein's proposal. First, the reasonable doubt standard poses a possible threat to the
defendant because the judge determines admissibility by looking to both
In other words,
the hearsay statements and the independent eviden~e.~'
inadmissible evidence is permitted to bootstrap itself up to the level of
admissible evidence. Second, the reasonable doubt test may very well
make conspiracy an unprovable offense by depriving the prosecution of
needed evidence.32A case can be decided on its merits only after preliminary questions of fact are decided. If the government is required to satisfy
a reasonable doubt test at all preliminary stages, it will be forced to carry
so heavy a burden that the defendant will be given much more protection
Id.
Id. at 465.
See, e.g., United States v. Martorano, 557 F.2d 1 (1st Cir.), cert. denied, 435 U.S. 922
(1978).
21 See, e.g., United States v. Stanchich, 550 F.2d 1294 (2d Cir. 1977).
a See, e.g., United States v. Trotter, 529 F.2d 806 (3d Cir. 1976).
See J . WEINSTEIN
& M. BERGER,
1 WEINSTEIN'S
EVIDENCE
!104[05] (1978).
Id.
See S. SALTZBURG
& I(.REDDEN,
supra note 3, at 467-68.
* See id. at 466.
21
Heinonline -- 65 Va. L. Rev. 783 1979
784
Virginia Law Review
LVol. 65:779
than the benefit of the reasonable doubt trial standard. Because the reasonable doubt standard presents these problems, the editors argue the
preponderance test is refera able.^^ It strikes the best balance between the
defendant's need for accuracy in the preliminary factfinding process and
the prosecution's interest in admitting the necessary evidence without
undue restriction.
Throughout the manual, there are frequent examples of the editors'
willingness to take positions on controversial issues of evidence p0licy.3~
Saltzburg and Redden share the common law's distrust of proving character traits by opinion evidence, in part because they doubt whether crossexamination will always suffice to expose the enmity some persons harbor
for others.35The editors are also troubled by the growing use of the harmless error rule to uphold criminal convictions despite errors in the conduct
of a trial. Arguing that the standard of review on appeal should be as high
as the standard of proof a t trial, they propose that appellate courts use a
reasonable doubt test to measure the impact of trial errors, whether or not
those errors are of constitutional m a g n i t ~ d eIn
. ~their
~ discussion of judicial
notice, the editors are disturbed by the cavalier attitude toward due process requirements shown by the Advisory Committee." In civil actions in
which state substantive law supplies the rule of decision, they approve of
the rules requiring that federal courts also apply state law as to presumptions% and privilege.3DHere again Saltzburg and Redden disagree with
Judge Weinstein, who suggests that in doubtful cases federal rather than
state rules should be applied.40
Teachers of evidence who now must familiarize themsleves with the
Rules will be impressed by the scholarship of the book. Indeed, one of the
editors is a co-author of the most widely used coursebook in the field." The
present book, however, was written with an eye to the lawyer or trial judge
who needs a practical everyday working tool to solve an evidence problem.
Its arrival is a major event for practitioners who desire a dependable work
of briefcase size. The book's coverage is so thorough, however, that even
the lawyer who needs exhaustive citation may well reach first for Saltzburg
and Redden.
Id. at 465.
" The editors are careful to identify editorial opinion as such.
Id. at 147.
Id. at 19.
" See id. at 60.
a See id. at 95.
See id. at 199-200,252-53.
an See J. WE~NSTEIN
& M. BERGER,
1 WEINSTEIN'S
EVIDENCE302[01] (1975), cited in S.
SALTZBURG
& K. REDDEN,
supra note 3, at 96.
See R. LEMPERT
& S. SALTZBURG,
A MODERN
APPROACH
TO EVIDENCE:
TEXT,PROBLEMS,
TRANSCRI~S
AND CASES(1977).
35
36
Heinonline -- 65 Va. L. Rev. 784 1979