When does common law apply (as opposed to the FRE)?

Question

I'm informally studying law and I am currently looking at hearsay.  I notice that several things which the common law considers inadmissible are admissable under the Federal Rules of Evidence and vice versa (or they are exclusions under one system and exceptions under another).   I would assume that the FRE would apply in federal courts and perhaps common law in other jurisdictions, but I am not sure.  Incidentally, any suggestions for good reading or websites on the law in general are appreciated.  This is just a personal interest. I haven't the time, money or intention to formally study law.  But I do find it fascinating.  Help is greatly appreciated.

Matt · Accepted Answer

The answer will vary a bit based on your jurisdiction. The Federal Rules of Evidence apply in all federal courts, as you noted. Many state legislatures have enacted their own state rules of evidence for proceedings in state court. Some states' rules follow the FRE closely, and others vary on one or more points.

Rules of evidence are statutes, and some states' legislatures haven't enacted any at all. The law of evidence in those states is embodied in each state's common law. Where common law hasn't addressed a particular evidentiary issue, a judge might consider arguments based on the FRE or practices in other states before making a ruling. That's how common law evolves.

I'm afraid I don't have any suggestions for good reading for you. A treatise on evidence probably would be pretty bland, but McCormick on Evidence is one of the leading volumes if you want to go that route.

When does common law apply (as opposed to the FRE)?

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