Evidence Commons^™

China’s People’s Supreme Court has stated its commitment to reform its judicial system, and the linchpin of the reform effort is the Uniform Provisions of Evidence, which are in the process of becoming China’s first procedural and evidentiary code. Incongruously, China, a civil law country, has modeled the Uniform Provisions upon the United States’ Federal Rules of Evidence and incorporated into the Uniform Provisions principles of United States’ criminal and civil procedure. The parallels between the Uniform Provisions and the Federal Rules of Evidence are striking and the adoption of F.R.E. language extraordinary.

After setting out the traits that distinguish …

This article suggests that the Federal Rules of Evidence (Rules) should be separated into distinct criminal and civil evidence codes. The arguments for this separation are both practical and theoretical, and this article is the first comprehensive discussion of this proposed separation.

The most important of the arguments for bifurcation is that our current unified evidence code leads to inappropriate admission decisions. These inappropriate admission decisions most often occur when the interpretation of a rule in a criminal case is applied in later civil law cases. This result is in part because our rules, and their interpretations, are transubstantive; they …