DePaul Law Review

Volume 4
Article 24
Issue 2 Spring-Summer 1955

McCormick: Handbook of the Law of Evidence

Jeremiah Buckley

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Recommended Citation
Jeremiah Buckley, McCormick: Handbook of the Law of Evidence, 4 DePaul L. Rev. 342 (1955)
Available at: http://via.library.depaul.edu/law-review/vol4/iss2/24

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 DE PAUL LAW REVIEW

titioner who may become interested in a federal tax case, the book is useful as it con-
tains a combination of fact and advice as well as instructions on tactics and the elements
of procedure.
WARREN J. CAREVY*
* Lecturer, De Paul University College of Law.

Handbook of the Law of Evidence. By CHARLES T. MCCORMICK. St. Paul, Minn.: West
Publishing Co., 1954. Pp. xxxvii, 774. $10.00.
The first problem that confronts the reviewer in considering this work is: Is it a
text, a treatise or an encyclopedia? The difference between the three is not merely one
of degree, but of kind. A text, I conceive, to be a work which lays down general prin-
ciples, supported by the rationale of the rule, exemplified by a few outstanding cases,
and distinguished from exceptions to the rule. A treatise is not limited to exemplifica-
tion, but searches into the causes and origin of the rule, with a critique of its rationale,
necessity or effectiveness, and with a prognosis of its future development. An encyclope-
dia is a storehouse of accumulated cases in which the rule was applied, rejected or modi-
fied. A text is designed for the beginning student; a treatise is designed both for the
advanced student and the practioner; an encyclopedia is of primary utility to the
practioner. I would say the present book stands about mid-way between a text and a
treatise, with perhaps a slight tipping of the scales in favor of a treatise. It combines the
simplicity of a text without the philosophical exhaustiveness of a treatise.
Proficiency in evidence is not a matter of rote; it is largely a matter of instinct. We
do not learn evidence in the same way we learn the mechanics of corporations, future
interests and negotiable paper. We re-act to evidence, unconsciously and instantaneously,
like we re-act to language. Indeed, the study of evidence is like the study of a foreign
language. We labor the grammar of the science, with its plethora of rules, exceptions,
and exceptions to the exceptions, but we cannot say we know the language until we
unconsciously speak its idiom. None of us can remember when we did not speak our
native tongue. And yet, we learned it in an extraordinarily short time by pure repetition,
aided, of course, by that mysterious function of the human mind we call the logical
faculty.
It is likewise with the study of evidence. The writer of a grammatically correct, and
rhetorically well-balanced sentence, might have great difficulty in parsing it. He is
guided by instinct, rather than by rule. No student can complete the ordinary law
school course in evidence without being left in the most bewildering and desperate con-
fusion. His grammar has left him stuttering rather than talking. And yet, the teacher
might have labored hard to dispel confusion, to regulate chaos, and to translate instinct
into rationale. No experienced teacher need worry about this appalling result. While
the term is one of distinct opprobrium, all mental training is a species of brain-washing.
If the teacher has religiously drilled on fundamentals, they will remain, even though
temporarily obscured by the effluvia of conflicting details. Six months in a court-room,
handling even the most trivial cases, will dredge up the basic tenets of the science.
And now, lest this become an essay rather than a review, on to McCormick and his
"Handbook of Evidence."
First, as to the mechanical set-up of the book as a whole: in this volume of 774 pages,
McCormick first gives us an over-all skeleton outline of his general subject matter,
which is then broken down into specific topics in his table of contents. A study of these
gives the blue-print and specifications of his approach. The pages are in double columns,
with about half the space devoted to foot-note references to authoritative treatises and
citations of English and American cases. The citations are usually edited with brief
 REVIEWS

statements of fact showing the pertinency of the point and very frequently amplified
with quotations from the decisions. At the end of the book a table of cases, covering 48
pages, is followed by a carefully compiled topical index.
Second: In the discussion of any major rule, McCormick usually treats (1) its his-
torical back-ground and development; (2) the statement of the rule today with its varia-
tions and subdivisions; (3) the application of the rule to specific instances cited in the
foot-notes; (4) the criticisms of the rule, with very often conflicting arguments for or
against the rule as it presently stands; (5) proposed changes or re-drafts of the rule by
statutes, rules or codes. Thus, with the aid of the index, the student, trial man or brief
maker can, with this book alone, get a good start in the research of most basic eviden-
tiary rules, and with the aid of the foot-notes, get examples of its variations and modifi-
cations.
Third, as to the arrangement of topics: I confess myself biased to the point of bigotry
on the matter of arrangement. I have a deep-seated and not wholly unwarranted sus-
picion that re-arrangement of topics conceals a publisher's racket,-that new books on
old subjects, like Christmas turkey in January, depend upon form rather than substance,
for acceptance. This is not true of McCormick's book, though I do not particularly like
his arrangement in some matters of detail. To my mind, order gives each thing view and
helps define its function. Therefore, when he treats examination of witnesses before
competency, competency before relevancy, relevancy before the issues and burden
of proof, and all of them before facts excluded from the field of evidence by judicial
notice, when I think logic would dictate the exact opposite, my innate orthodoxy suf-
fers a shock. I am willing to concede, however, that topical arrangement is not solely a
matter of logic, that the elements of perspective, emphasis and personal taste might be
involved, as so often happens when two housewives disagree on the exact spot on the
wall where grandfather's picture is to hang.
In the handling of his topics, McCormick makes an immediate plunge into the morass
of examination. There is a good deal of justification for this. First, it is the one field
where the rules of evidence are most commonly and most exactingly applied. Second,
the initial enthusiasm of the student may be utilized to carry him over an extremely
technical subject; and third, he gets his first real taste of what it is to be a lawyer, as, for
example, when he is called upon in the classroom to lay a foundation, by a series of
questions, for impeachment by self-contradiction. Within the general subject of ex-
amination, McCormick quite properly includes many subsidiary topics, such as the
competency of testimony as distinct from the competency of witnesses, the various
privileged communications, expert and opinion evidence, and refreshing present recol-
lection. In this latter connection, however, instead of discussing the cognate topic of
proving a record of past recollection, McCormick jumps 476 pages and treats past
recollection under the hearsay exceptions. With this classification I definitely disagree,
both on practical and theoretical grounds. Courtroom experience has taught me that
while the difference between present and past recollection is quite clear, they are more
commonly confused in the trial of a case than probably any other two concepts. The
medical expert reading from a hospital record is rarely stopped by an objection, and yet
two minutes of cross-examination (which may be indulged in immediately and before
the witness continues his testimony) might easily show that he is not actually "refresh-
ing" his recollection, and usually no attempt is made to qualify the record under the past
recollection rule. Further, a record of past recollection, properly qualified, is in no sense
hearsay, but is direct evidence. Therefore, the two topics should be considered together
under the general subject of examination.
After a discussion of the general rules relating to Cross-examination, McCormick
devotes a few pages, heavily documented in the foot-notes, to that most fascinating sub-
ject of all,-cross-examination, considered as an art. The student is warned against the
 DE PAUL LAW REVIEW

many dangers in cross-examination, including taking Hollywood as a guide, all of which

might be summarized in the time-tested admonition, "Don't ever ask a question on
cross-examination, the answer to which you do not know." When you shoot in the dark,
the bullet might ricochet. Alertness and imagination are important in the trial, but they
are much more important in the investigative stage. Success in the cross-examination of
a witness, like success in a military campaign, usually results from careful preparation,
and but rarely from sporadic flashes of genius.
McCormick's sections on writings, including the topics of authentication, the best
evidence rule, and the parol evidence rule, are uniformly excellent. I could wish he
had extended his comments on interpretation to include a fuller treatment of that most
prolific source of all interpretative evidence,-the interpretation of wills. Considera-
tions of space, and the fact that the subject could more properly be treated in a work on
wills, probably accounts for the skimpy treatment. Interestingly enough, and contrary to
McCormick's usual proclivities, we find no proposed rule or code relating to writings.
Could its absence arise from the fact that if a writing suggests difficulties of interpreta-
tion, a rule might do likewise?
McCormick seems to condone the use of res gestae, at least he handles the shibboleth
very gingerly. He admits the vagueness and imprecision of the term, and cites the witty
comment of Judge Bleckley in Cox v. State, 64 Ga. 374, 410 (1879):
The difficulty of formulating a description of the res gestae which will serve for all cases
seems insurmountable. To make the attempt is something like trying to execute a portrait
which shall enable the possessor to recognize every member of a numerous family.
McCormick, however, seems to think the time has not yet come to get rid of the
expression, when he says, page 587:
Manifestly, too, the very vagueness of the term has been beneficial, as making it easier to
widen the application of the doctrine into new fields. Perhaps the time has now come when
this policy of widening admissibility will be even better served by striving for a clearer
analysis of the different classes of evidence coming in under the phrase res gestae and of the
justifying reasons for the admission of each class, as a basis for pointing out the need for
further liberalization. If so, we could well jettison the ancient phrase, with due acknowledge-
ment that it has well served its era in the evolution of the law of evidence.
It seems to me the ultimate result of McCormick's dictum would be to do away with all
exclusionary rules, and reduce all evidence to the one rule of relevancy. This is the one
rule that now, quite properly, governs the detective or investigator of facts, as distinct
from the trier of facts. But, there are other rights and policies that intervene between the
facts and the trier, that are of such importance in the eyes of the law as to be preserved
even at the expense of concealing certain facts. The exclusionary rules, in the main, are
well-founded, and do not, except in rare cases, prevent adequate proof of an issue.
Further, even within Judge Bleckley's nebulous, composite family portrait, many mem-
bers may be definitely identified by ear-marks peculiar to each, so that the magic for-
mula of resgestae is no longer required as an open sesame to the admissibility of evidence.
The history of the doctrine of res gestae, it seems to me, has been one of progressive
contraction whereby the area of "vagueness and imprecision" has been gradually re-
duced. If I read McCormick right, he would reverse that process and use res gestae to
throw open new and unexplored areas of imprecision.
McCormick has a penchant for statutory rules. With this I do not agree. I am not
convinced that statutory changes solve more problems than they create. The generality
of language in which a rule is necessarily expressed, leads to obscurity of meaning.
The result is a plethora of new cases attempting to define the rule in its application to
new facts. In spite of the contributions of modern science and psychology, the diversity
of human motives and conduct is very far from reduction to mathematical formulae.
 REVIEWS

The rules of evidence, developed from the hit and miss system of trial and error inci-
dent to adversary proceedings, are subject to variation and re-adaptation to new cases as
experience proves necessary. In their ultimate resolution, the process is necessarily slow
but thus far, it has not worked so badly. I feel we should be equally slow to cast that
process aside for the supposed panacea of a formulated rule, which, no matter how but-
tressed it may be by experience, must by its very nature, be largely a priori. The sim-
plicity of code revisions may be deceiving, and as a means of "arriving at the truth," I
am cynical enough to believe that, at least in the field of evidence, they leave Pilate's
question still unanswered.
I think it would be well if every trial practioner read at least one book on evidence
each year-a book that presents the entire subject within reasonable compass. The
longer treatises can best be used for reference and amplification. I believe this should be
done in addition to the occasional job of briefing a point of evidence for use in court.
Research on specific points is a necessary part of the handling of litigation, but a hundred
briefs do not add up to a comprehensive grasp of the subject as a whole. The rules of
evidence are so interwoven that the pattern cannot be seen by following individual
threads. McCormick's book is comprehensive, but not to the point of being burdensome.
His style is clear and flowing, his phraseology is simple, coherent, connected and bal-
anced and singularly free both from that professional jargon and legalistic stodginess
that is not only the curse of so much "legal" writing, but so often serves merely as an
ostentatious cloak to a complete vacuity of ideas. I found a great deal of pleasure in
going over it, and indeed, lingered on some parts longer than time would afford.
Whether you read it or use it for reference, it is an extremely handy tool in the work-
shop of the lawyer. JEREMIAH BUCKLEY*

* Professor of Law, De Paul University College of Law.

Preface to Jurisprudence-Text and Cases. By ORVILL C. SNYDER. Indianapolis: Bobbs-

Merrill Co., Inc., 1954. Pp. xxvi, 882. $10.00.
It is not easy to assay a casebook about jurisprudence. The subject is so mercurial
and the possible approaches to the inquiry so numerous that analysis of the book becomes
largely subjective. The author of Preface to Jurisprudence makes the task doubly hard.
He informs us in the Foreword that his book was "prepared for use in courses in juris-
prudence especially in law schools, but also in political science departments of colleges
and universities." He also expresses the hope that lawyers and judges may find the book
useful. By directing his material at two groups who are unequal in experience with, and
comprehension of, the law-lawyers and students-Professor Snyder may have tried to
accomplish too much.
The author's approach to the subject however is entirely satisfactory. It is to ex-
amine the meanings of such words as law, state, sovereignty, legislative, judicial,
executive, proof, right, liability, duty, power, privilege, immunity, property, thing and
person; words which are as common as their meanings are obscure. He develops the
study along traditional lines, introducing each subject with searching text analysis and
then illustrating how each idea affects law by ample use of case material and examples.
The book is large and possesses several virtues of a technical nature which add
greatly to its effectiveness. For instance, the cases used are uniformly interesting and
current, while the table of contents is one of the most complete ever seen in a casebook
and would make an excellent outline of the material contained in the book.
That the author has compiled a casebook which is scholarly and complete cannot be
doubted. With such attributes he can expect to attract those members of the bar who