The In/Into Controversy: Lubet Misses the Point

J. Alexander Tanford* In his controversial article "Into Evidence,"1 Steve Lubet bemoans the fact that all Trial Advocacy professors essentially agree with each other. This lack of professional controversy, he asserts, makes us all wretched.2 In this, his latest attempt to foment controversy,3 Lubet argues that exhibits are admitted into evidence, rather than in evidence.4 Although I agree with him on both counts, I don't see why that should stand in the way of a good argument. The problem with his thesis is that he has completely missed the point. Lubet's article is a post-modern critique of Peter Murray's infamous footnote, in which Murray asserts that evidence is not a place but a status.5 Lubet attacks this formalist view through deconstruction, using the tool of grammatical analysis borrowed from the faddish law-and-literature movement. Unfortunately, Lubet gets so caught up in this intellectual exercise that he fails to see the forest for the trees. He overlooks the central flaw of Murray's footnote: When used in the context of exhibits, "evidence" is neither a place nor a status, it is a euphemism for "the record." Once we agree on that, then it is obvious that information (such as an exhibit) is placed into the record; hence, into evidence. Lubet thus commits the cardinal sin of scholarly discourse-he is right but for the wrong reason! Let us examine the issue further. The primary source of the problem is, of course, the ambiguity of meaning.6 What is "evidence"? Until this question is answered, it is pointless to explore the in/into question. Unfortunately, evidence is not defined in the Federal Rules of Evidence. Indeed, the drafters of the Federal Rules of Evidence appear to have tried deliberately to obfuscate this issue by writing incomprehensibly and butchering the English language whenever possible. For example, the Rules refer to "the right of a party to introduce before the jury evidence."7 Turning to Black's Law Dictionary,8 we find no help there either. It defines evidence as a "species" of proof, which suggests that evidence is neither status nor place, but some kind of living thing. A second problem is that "there's law on both sides." Take the Federal Rules of Evidence.9 They were drafted by a committee, and therefore try to placate both the "in" and the "into" schools. Rule 612 provides that if a writing is used to refresh memory "an adverse party is entitled . . . to introduce in evidence those portions which relate to the testimony of the witness." Rule 803(5), however provides that if this same writing is used as a record of past recollection, it "may be read into evidence." Similarly, Rule 703 provides that data relied on by an expert "need not be admissible in evidence," while Rule 803(18) provides that if this same data is contained in published treatises or periodicals, "the statements may be read into evidence." Case law also goes both ways. A Westlawl 10 search of federal appellate court opinions reveals that 15,622 cases prefer the phrase "into evidence," 16,801 use the phrase "in evidence," and a staggering 4437 use both phrases in the same opinion.11 One solution has been offered by the Indiana state courts. Simply eliminate the problem by declaring that exhibits are not admissible at all! In Springer v. State,12 the Indiana Supreme Court held: Appellant next contends that the trial court erred by admitting into evidence a certain knife which was State's exhibit 8.... Wagner testified that exhibit 8 was "exactly like" the knife Appellant used to stab him. The knife used by Appellant in his attack was referred to repeatedly throughout Appellant's trial. Photographs were introduced to show the knife wounds caused by Appellant and Wagner showed the resulting scars. The State . . . argues that State's exhibit 8 was demonstrative evidence... and therefore was admissible. We do not agree.... Although the trial court could have allowed exhibit 8 to be used at trial. …