Tanford, J. Alexander

English

Indiana University Bloomington Maurer School of Law

Maurer School of Law: Indiana UniversityDigital Repository @ Maurer LawArticles by Maurer Faculty Faculty Scholarship1997The In/Into Controversy: Lubet Misses the PointJ. Alexander TanfordIndiana University Maurer School of Law, tanford@indiana.eduFollow this and additional works at: http://www.repository.law.indiana.edu/facpubPart of the Criminal Procedure Commons, and the Evidence CommonsThis Article is brought to you for free and open access by the FacultyScholarship at Digital Repository @ Maurer Law. It has been accepted forinclusion in Articles by Maurer Faculty by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationTanford, J. Alexander, "The In/Into Controversy: Lubet Misses the Point" (1997). Articles by Maurer Faculty. Paper 568.http://www.repository.law.indiana.edu/facpub/568Copyright 1997 by Northwestern University, School of Law Printed In U.S.A.Northwestern University Law Review VoL 91, No. 2THE IN/INTO CONTROVERSY: LUBET MISSESTHE POINT. Alexander Tanford*In his controversial article "Into Evidence,"' Steve Lubet be-moans the fact that all Trial Advocacy professors essentially agreewith each other. This lack of professional controversy, he asserts,makes us all wretched.2 In this, his latest attempt to foment contro-versy,3 Lubet argues that exhibits are admitted into evidence, ratherthan in evidence.4 Although I agree with him on both counts, I don'tsee why that should stand in the way of a good argument. The prob-lem with his thesis is that he has completely missed the point.Lubet's article is a post-modern critique of Peter Murray's infa-mous footnote, in which Murray asserts that evidence is not a placebut a status.5 Lubet attacks this formalist view through deconstruc-tion, using the tool of grammatical analysis borrowed from the faddishlaw-and-literature movement. Unfortunately, Lubet gets so caught upin this intellectual exercise that he fails to see the forest for the trees.He overlooks the central flaw of Murray's footnote: When used in thecontext of exhibits, "evidence" is neither a place nor a status, it is aeuphemism for "the record." Once we agree on that, then it is obvi-ous that information (such as an exhibit) is placed into the record;hence, into evidence. Lubet thus commits the cardinal sin of scholarlydiscourse-he is right but for the wrong reason!Let us examine the issue further.The primary source of the problem is, of course, the ambiguity ofmeaning. 6 What is "evidence"? Until this question is answered, it ispointless to explore the in/into question. Unfortunately, evidence isnot defined in the Federal Rules of Evidence. Indeed, the drafters of* Professor of Law, Indiana University School of Law.1 Steven Lubet, Into Evidence, 81 CoRNELL L. REv. 154 (1995).2 1 am writing this while watching 21 videotaped final trials in which not a single student wasable competently to get an exhibit either in or into evidence. I am not at all sure it is the lack ofprofessional controversy that makes us this way.3 See Lubet, supra note 1, at 155 n.12, in which he cites a number of his previous articles in ashallow ploy designed to improve his citation count.4 Or the other way around; I'm not quite sure.5 P-R L. MURRAY, BASIC TEIAL ADVOCACY 14 n.1 (1995).6 See DAVID TRACY, PLURALrTY AND AMBIGUITY: HERMENEUTICS, REUGIOON, HOPE(1989) (likely sounding book picked at random from library catalog).HeinOnline  -- 91 Nw. U. L. Rev.  637 1996-1997NORTHWESTERN UNIVERSITY LAW REVIEWthe Federal Rules of Evidence appear to have tried deliberately toobfuscate this issue by writing incomprehensibly and butchering theEnglish language whenever possible. For example, the Rules refer to"the right of a party to introduce before the jury evidence."' 7 Turningto Black's Law Dictionary,8 we find no help there either. It definesevidence as a "species" of proof, which suggests that evidence isneither status nor place, but some kind of living thing.A second problem is that "there's law on both sides." Take theFederal Rules of Evidence.9 They were drafted by a committee, andtherefore try to placate both the "in" and the "into" schools. Rule 612provides that if a writing is used to refresh memory "an adverse partyis entitled.., to introduce in evidence those portions which relate tothe testimony of the witness." Rule 803(5), however provides that ifthis same writing is used as a record of past recollection, it "may beread into evidence." Similarly, Rule 703 provides that data relied onby an expert "need not be admissible in evidence," while Rule 803(18)provides that if this same data is contained in published treatises orperiodicals, "the statements may be read into evidence."Case law also goes both ways. A Westlaw' ° search of federal ap-pellate court opinions reveals that 15,622 cases prefer the phrase "intoevidence," 16,801 use the phrase "in evidence," and a staggering 4437use both phrases in the same opinion."One solution has been offered by the Indiana state courts. Sim-ply eliminate the problem by declaring that exhibits are not admissibleat all! In Springer v. State,12 the Indiana Supreme Court held:Appellant next contends that the trial court erred by admitting into evi-dence a certain knife which was State's exhibit 8.... Wagner testifiedthat exhibit 8 was "exactly like" the knife Appellant used to stab him.The knife used by Appellant in his attack was referred to repeatedlythroughout Appellant's trial. Photographs were introduced to show theknife wounds caused by Appellant and Wagner showed the resultingscars. The State... argues that State's exhibit 8 was demonstrative evi-dence.., and therefore was admissible. We do not agree.... Although7 FED. R. EVID. 104(e); see also FED. R. EVID. 104(b): "When the relevancy of evidencedepends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to,the introduction of evidence sufficient to support a finding of the fulfillment of the condition."8 They made me buy BLACK's LAW DIC'TONARY when I was a 1-L in 1973. I have neveractually used it for anything.9 Pleasel10 My trial practice book is published by the Michie Company which owns LEXIS, Westlaw'scompetitor. However, out of courtesy to my publisher, which would surely prefer not to beassociated with this article, I ran the search on Westlaw.11 I really ran this search. I did not, however, actually read any of the cases. Reading casesis not necessary in modem legal scholarship. See any recent issue of the Harvard, Yale, orStanford Law Review.12 463 N.E.2d 243 (Ind. 1984).HeinOnline  -- 91 Nw. U. L. Rev.  638 1996-199791:637 (1997)the trial court could have allowed exhibit 8 to be used at trial... the trialcourt should not have formally admitted exhibit 8 into evidence.13A better solution is to abandon the outdated notion that exhibitsbegin outside the realm of evidence and end up inside it. Our startingpoint is again the Federal Rules themselves. The Rules never say thatexhibits are admissible in or into evidence. Indeed, when exhibits andadmissibility arise, the language is surprisingly reminiscent of the Indi-ana opinion. Rule 803(18) provides that if learned treatises are ad-mitted, they "may not be received as exhibits." Likewise Rule 803(5),which states that a record of past recollection "may be read into evi-dence but may not itself be received as an exhibit."The need to redefine exactly what kind of thing/status exhibitsare being admitted in/into, is made even more obvious when one con-siders the linguistic ramifications of failing to do so. Consider Rule404(b), which addresses "evidence [the prosecution] intends to intro-duce at trial." If the Lubet/Murray thesis14 were correct, this phrasewould effectively read: "evidence [the prosecution] intends to intro-duce in/into evidence"-an obvious redundancy and a disfavoredgrammatical construction. How can evidence be introduced in/intoevidence? If it is evidence to begin with, it cannot be introduced in/into itself-it is already there.15Once we abandon the idea that the end product of introduction isevidence, what exactly is evidence introduced in/into? The solution,as always, lies with Wigmore. Wigmore's treatise is appropriately re-ferred to as the Bible of Evidence-if you look hard enough, you canfind support in it for any proposition.16 Wigmore doesn't mess aroundwith trivial concepts like exhibits-he gets right to the heart of thematter: we're talking here about "autoptic proference!"1 7 As Wig-more himself states:13 ld. at 245-46 (emphasis added). Given the court's holding, its decision to use the phrase"into evidence" can only be considered dicta-or is it dictum?14 For those who have lost the thread, Murray and Lubet are engaged in a scholarly disagree-ment about whether exhibits are admitted in or into evidence.15 A similar redundancy appears in the juxtaposition of FRE 103(b), which speaks of the"character of evidence," and 404(a) which mentions "evidence of character." Does this meanthat an offer of proof under Rule 404 would have to show the character of the evidence of charac-ter? I should think notl16 E.g., compare 5 WIGMORE ON EVmENCE § 1367 at 32 (cross-examination is the greatestlegal engine ever invented for the discovery of truth) with 1 WIGMORE ON EviDENCE § 8 at 237(cross-examination is the most "efficacious expedient" ever invented for the creation of falseimpressions).17 Book I, Part I, Title III of WoMORE ON EVIENCE, which covers "real" evidence such asin-court experiments, weapons, bloody clothes, photographs, liquor sampled by jurors, the con-duct of insane people, and jury views, is entitled "Autoptic Proferences." Interestingly, thisphrase has actually appeared in several appellate opinions, although not always in particularlyhelpful ways. See the pithy insight of Rich v. Ellerman & Bucknall S.S. Co., 278 F.2d 704, 708Lubet MissesHeinOnline  -- 91 Nw. U. L. Rev.  639 1996-1997NORTHWESTERN UNIVERSITY LAW REVIEWThe three modes by which a tribunal may properly acquire knowl-edge for making its decisions ... are Circumstantial Evidence, Testimo-nial Evidence, and "Real" Evidence.... If, for example, it is desired toascertain whether the accused has lost his right hand and wears an ironhook in place of it,18 one source of belief on the subject would be thetestimony of a witness who had seen the arm; in believing this testimo-nial evidence, there is an inference from the human assertion to the factasserted. A second source of belief would be the mark left on somesubstance grasped or carried by the accused; in believing this circumstan-tial evidence, there is an inference from the circumstance to the thingproducing it. A third source of belief remains, namely the inspection bythe tribunal of the accused's arm. This source differs from the other twoin omitting any step of conscious inference or reasoning, and in proceed-ing by direct self-perception, or autopsy.... [F]or the purposes of judi-cial investigation, a thing perceived by the tribunal as existing doesexist.... [W]e are here concerned with nothing more than matters di-rectly perceived - for example, that a person is of small height1 9 or is ofdark complexion; as to such matters, the perception by the tribunal thatthe person is small or large, or that he has a dark or a light complexion,is a mode of acquiring belief which is independent of inference fromeither testimonial or circumstantial evidence. It is the tribunal's self-per-ception, or autopsy, of the thing itself.From the point of view of the litigant party furnishing this source ofbelief, it may be termed Autoptic Proference.20It follows that, as soon as the jurors see an exhibit with their owneyes, it has become part of the evidence they will consider2' in reach-ing a verdict. The exhibit becomes evidence at this very moment of(2d Cir. 1960) ("Autoptic proference is always proper, unless reasons of policy apply to excludeit.").18 Was this a major problem in Wigmore's day? I ran another Westlaw search, and found nocases in which anyone cared whether the accused had lost his hand and had it replaced with aniron hook.19 An interesting turn of phrase. Perhaps Wigmore's manual of style omitted the section onoxymorons.20 4 WIOMORE ON EVIDENCE § 1150 at 322. Neither the word "autoptic" nor the word"proference" appears in the AMERICAN HERiTAGE DICrIONARY (3d ed. 1992). Wigmore madethem up, noting somewhat opaquely that autoptic came from "autopsy," and proference derivedfrom the Latin proferre, "whose form 'profert' is intimately associated, in history and principle,with the process of autoptic proference." Id. n.1. He did not further elaborate on this intimateassociation. In any event, the dictionary suggests that the correct adjectival form of autopsywould be "autopsic," not autoptic, and spells proffer with two f's, not one. It also points out that"proffer" is already a noun (e.g., the proffer of evidence), so there is no reason to add the redun-dant "-ence" to make it into a noun. Technically speaking, Wigmore's word "profference," evenif correctly spelled, would mean "the act of the act of bringing something forth." The redundancysection also appears to have been missing from Wigmore's style manual.21 That is, they will reject it along with other credible evidence, in order to decide the casebased on their pre-conceptions and/or messages received from God. See United States v. JohnDeLorean (acquitted).HeinOnline  -- 91 Nw. U. L. Rev.  640 1996-199791:637 (1997)autoptic proference! To speak further about entering the exhibit in/into evidence is meaningless-it is already there.22What is left? Once the exhibit has become evidence, the onlyquestion remaining is, What happens to evidence when it has servedits primary purpose? The answer is obvious: it becomes part of therecord. For example, Indiana Rule of Appellate Procedure 7.2 states:"The record of the proceedings shall consist of... [t]he transcript ofthe evidence... [e]xhibits [and] physical objects." As every trial law-yer knows, the whole reason we bother to call witnesses and offer ex-hibits is to prepare a record for appeal. It is pointless to do this fortrial purposes, because the jurors already have made up their mindsbased on what they heard at the laundromat months before the trialeven started.Thus, it is plain to see that Lubet is right in pointing out thatMurray is wrong. Evidence is not a status in which exhibits are admit-ted.2 3 However, it is also plain that Lubet is wrong himself when heasserts that evidence is a place into which exhibits are introduced.When used in the context of exhibits, "evidence" is neither a place nora status, it is a euphemism for "the record." Since a record containingexhibits is customarily sent to the court of appeals in a box, it is obvi-ous that exhibits are placed into that box; hence "into" the record. Ihope this puts the issue to rest.22 See RiciHAn REOVALD, HEIDEGGER ET LE PROBLEME Du NEANT (1987); DAVID K. COE,ANGST AND T-E ABYss: THE HERMENEUTncs OF NOTHINGNESS (1985); JEAN PAUL SARTRE,BEING AND NOTHINGNESS; AN ESSAY ON PHENOMENOLOGICAL ONTOLOGY (Hazel E. Barnestrans., 1968).23 Besides, if evidence were a status, wouldn't exhibits be admitted to evidence, as MotherTheresa will someday be elevated to sainthood?Lubet MissesHeinOnline  -- 91 Nw. U. L. Rev.  641 1996-1997

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