SC Lawyer, Jan. 2004, #2. Beyond the bar January 2004 Public policy: the Corpus Evidentia meets Fredrick Nietzsche.

• Author: By Warren Mo\xEFse

South Carolina Lawyer

2004.

SC Lawyer, Jan. 2004, #2.

Beyond the bar January 2004 Public policy: the Corpus Evidentia meets Fredrick Nietzsche

South Carolina LawyerJanuary 2004 Beyond the bar January 2004 Public policy: the Corpus Evidentia meets Fredrick NietzscheBy Warren MoïseThe corpus evidentia is an ageless parade of non sequiturs stumbling through the pluff mud of confusion to the mountaintop of inconsistency. The Supreme Court has admitted that "much of this [evidence] law is archaic, paradoxical, and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counter privilege to the other." Michaelson v. United States, 335 U.S. 469, 486 (1948). No, the real beauty is not in the rules but in the process itself. Watching the courts balance conflicting procedural rules and vague legislative directives while struggling to do justice to the parties and the people at large is a wonderful thing to see.

When I was a 1 L, Prof. Pat Hubbard drummed into us the necessity of arguing public policy when no law is on point. Evidence law will often be "off point," thus the need for its underlying policies.

Who makes public policy, and where is it found?

Apologies to Rousseau, but official public policies are promulgated by government officials - not the public. They may be found in constitutions, statutes, rules, regulations and even in public speeches like President James Monroe's 1823 address to Congress in which the Monroe Doctrine was introduced.

The legislature is the primary source of public policy. Courts generally try to determine the legislature's intent when it has spoken on an issue. However, voids such as interpreting the requirements of due process still must be filled by the judiciary. Similarly, legislatures cannot possibly anticipate and declare public policies for the infinite potential scenarios arising in all areas of the law. Attorneys may persuade a court to adopt a policy by arguing that it follows or is consistent with legislative intent, or if a void exists, for fairness, historical, statistical, ethical, practical or other reasons.

Many evidentiary public policies are obvious. For example, Rules 408 and 410 obviously favor settlements and negotiated pleas, and Rule 409 encourages medical assistance to injured persons by making such kindness...