The Law of the Several States: Why I No Longer Enjoy Scavenger Hunts

I, perhaps naïvely, took on a research project offered to me by one of the Head Honchos. The project was described as a 10 – 15 hour research project. (Honestly, that was probably pretty accurate. I haven’t been keeping count of the time I spend on it though.) The project seemed simple enough – using a chart created by other interns, figure out how each of the fifty states (plus the District of Columbia, for a total of 51 jurisdictions) conduct preliminary hearings, with particular attention paid to whether or not they allow hearsay evidence to be presented, and what requirements (if any) exist for the hearsay.

The first mistake I made was assuming that the other interns would have listed where they found the information they were looking for. They did provide links to websites, so that’s actually not a fair assessment. But while they may have told us where they found the information, some of the links were broken. The vast majority of the links are to various criminal defense attorneys’ firm websites or blogs. While I don’t doubt the quality of those attorneys, and I’m sure that the information they have on their websites and blogs is accurate (or was accurate at the time it was posted) I’d very much prefer to have citations to the actual statute or rule at issue. So unfortunately, I’ve essentially had to go through every jurisdiction and find the relevant statute myself so that I can cite directly to it, and find the specific exceptions/requirements (which is one thing the previous interns were not asked to do – they just had to answer a yes/no question – is hearsay allowed?)

You would think that once you’ve figured out how one state’s statutory system works, you’d understand how all the states’ statutory systems work. (Well, you might think that if you weren’t a lawyer. But if you’re reading this, you probably aren’t. So you probably do. I ramble.) As you might have guessed from how I phrased that, if you thought that (which you probably do because you aren’t a lawyer) you would be very very wrong. A not insignificant number of states (my favorite states, currently) model their statutes and rules in something resembling the federal system and/or model codes. This means that they have a separate thing called the Rules or the Code of Evidence, and in Rule 101 or in Rule 1101, one of the subsections lists the applicability of the rules to various proceedings. These jurisdictions are the best jurisdictions. They made everything very easy to find.

Other jurisdictions… not so much. I can state for a fact that I do not have the faintest idea how Louisiana or Mississippi set up their statutes. I think it might be because of the French influence in the area, but their statutes are absolutely bizarre. (Mississippi is the state I was looking into when I left work today. There may be other states that have similar schemes.) I have not yet been able to determine how Mississippi works. I am confident that I will be able to sort that out eventually – I just need a bit more time to work with it, and my next step is actually going to be to compare it to Louisiana, and hope that they’re similar.

One of the other problems (besides jurisdictions that are just bizarre) is that some jurisdictions put evidentiary rules like this in the Rules of Evidence. Other jurisdictions put evidentiary rules like this in the Rules of Criminal Procedure. (Which actually does make some logical sense – the section on “Preliminary Hearings” has a sub-section titled “Evidence” or “Proof” or something similar.) Still other jurisdictions split the difference; there will be a subsection in the Rules of Evidence that says something to the effect of: “The evidence rules apply in a limited fashion to [insert name of proceeding here]. The specific limitations/rules that are or are not applicable may be found in the relevant statutes. Good luck tracking them down, because we aren’t going to cross reference anything here.” (Okay, maybe they don’t include anything to the effect of that last sentence, but that’s the gist of it.) When that happens, I get to search through the statutes to try to find all of the exceptions. Sometimes they’re all in logical places, and other times it’s like a giant game of Where’s Waldo, except there may or may not be multiple Waldos, and he might be in a disguise, and he might not actually exist at all, and instead of just a book, it’s novel-length. And there are probably some false-Waldos in there somewhere too.

I’m going through the jurisdictions in alphabetical order. (Except for the District of Columbia, because I got confused and frustrated looking through its statutes. I’ll come back to it at the end; it was the first day, and I didn’t want to get burnt out almost before I began.) I quit on Mississippi, so I’m almost half way done (if I counted right – big if – then I’ve got 28 of 51 jurisdictions to go. Mississippi and the District of Columbia are each half done.) My goal is to finish up some time on Thursday morning, but I’ll be in court tomorrow morning (Wednesday as I write this) which means I’ve only got about eight work hours. I’m probably going to stay late tomorrow to get it done, because I’m also going to have at least one, but probably two meetings on Thursday.

I was originally planning to explain hearsay, but I don’t know that I’m qualified for anything other than a very brief summary, and I’m definitely not doing extra research to write it. And then talking about the state law schemes got long and distracting, and I didn’t want to hit 2000 words. (I’m over 950 now, so knowing me, it was entirely possible.) In any event, I’m hoping to keep a steady flow of posts, a bit like this but possibly not quite so steady, for the rest of the summer. (Don’t get too used to a post every night, in other words.) I’ll at least talk about hearsay, and I’ll see about putting together something on federal sentencing law that’s been bouncing around in my head since January.

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