Progress is Our Only Product: Legal Reform and the Codification of Evidence

Twentieth century reform of the American law of evidence was initially premised on the ideals of legal progressivism, ideals splintered by American legal realism. In preparing the American Law Institute's Model Code of Evidence from 1939 to 1942, Harvard Law School professor Edmund M. Morgan attempted to reconstitute the framework of reform in light of the challenge of legal realism. The Model Code was based on granting greater discretion to the trial judge and changing the goals of the trial from a search for truth to a "rational" resolution of disputes.Morgan’s decision to emphasize the rational resolution of disputes over the search for the truth in the Model Code helped lead to its rejection in all jurisdictions. In the January 1942 issue of the ABA Journal, preeminent evidence scholar John Henry Wigmore wrote an essay attacking the goal of the Model Rules. Others opposed to evidence reform used American entry into World War II to justify rejection of the Model Rules, which its opponents declared was antithetical to the Anglo-American common law.Despite the Model Code’s failure to be adopted by any state, its structure was used for the two subsequent evidence codification efforts—the Uniform Rules of Evidence and the Federal Rules of Evidence—which found greater academic and professional favor, in part because they fit within the post-World War II jurisprudence of reasoned elaboration. The Federal Rules of Evidence, although not enacted until 1975, enjoyed extraordinary professional favor because the drafters explicitly affirmed truth as the goal of the rules. The irony is that the framework of the Federal Rules contradicts this message, since they are based on the Model Code. With the adoption of the Federal Rules of Evidence, the structure and theory of the Model Code survived in the Federal Rules of Evidence, although this is rarely acknowledged.