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Federal Rules Of Evidence – 2011 Amendment To Restyle The Federal Rules Of Evidence

The Restyled FRE Legislative History Page and Resource Page summarizes and provides information concerning the amendment which became effective December 1, 2011.


Overview

Under the Rules Enabling Act, the restyled rules became effective December 1, 2011. See generally Evidence Viewpoints: Questions and Answers on the Recently Restyled Federal Rules of Evidence, 9 Fed. Evid. Rev. 225-29 (March 2012) (interview of the Honorable Robert L. Hinkle, who served as Chair of the Advisory Committee on Evidence Rules during the restyling amendment process).

As described by the Advisory Committee on Evidence Rules, the history of the restyling project has been underway for a substantial period:

[I]n the early 1990s, Judge Robert Keeton, who was chair of the Standing Committee, and a committee member, University of Texas Professor Charles Alan Wright, led an effort to adopt clear and consistent style conventions for all of the rules. Without consistent style conventions, there were differences from one set of rules to another, even from one rule to another within the same set. Style varied because a committee seeking to amend a rule did not always consider how another rule expressed the same concept. Style varied based on the membership of a particular advisory committee. And style varied as the membership of the Standing Committee changed over time. Different rules expressed the same thought in different ways, leading to a risk that they would be interpreted differently. Different rules sometimes used the same word or phrase to mean different things, again leading to a risk of misinterpretation. And in other respects, too, rules drafters who were experts in the relevant substantive and procedural areas sometimes did not express themselves as clearly as they might have.
Report of the Advisory Committee on Evidence Rules, at 2/480 (May 6, 2009).

In 2006, an effort to “restyle” the Federal Rules of Evidence was renewed by the Advisory Committee on Evidence Rules. A similar restyling has been undertaken on the Federal Rules of Appellate in 1998, the Federal Rules of Criminal Procedure in 2002, and the Federal Rules of Civil Procedure in 2007. After the committee received confirmation that the Chief Justice supported the effort, see Minutes of the Meeting of the Advisory Committee on Evidence Rules, at 21-22 (April 12-13, 2007), it completed the draft in April 2009, which was submitted to the Committee On Rules of Practice and Procedure of the Judicial Conference of the United States.

In August 2009, the Committee on Rules of Practice and Procedure released the entire package of draft style amendments for public comment, as part of the rules amendment process under the Rules Enabling Act, 28 U.S.C. §§ 2071-77. Public comments were received by February 16, 2010. See Memorandum to the Bench, Bar, and Public on Proposed Style Amendments to the Federal Rules of Evidence. On September 14, 2010, the U.S. Judicial Conference recommended that the Supreme Court adopt the proposed restyled FRE.

On April 26, 2011, the U.S. Supreme Court approved restyled amendments to the FRE. Under the Rules Enabling Act, the amendments became effective on December 1, 2011, in the absence of congressional action. The Supreme Court Order provided:

April 26, 2011

SUPREME COURT OF THE UNITED STATES

ORDERED:

  1. That the Federal Rules of Evidence be, and they hereby are, amended by including therein the amendments to Evidence Rules 101-1103.
  2. That the foregoing amendments to the Federal Rules of Evidence shall take effect on December 1, 2011, and shall govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending.
  3. That THE CHIEF JUSTICE be, and hereby is, authorized to transmit to the Congress the foregoing amendments to the Federal Rules of Evidence in accordance with the provisions of Section 2072 of Title 28, United States Code.

* * * * *

For more information concerning the original enactment of the FRE, see the 1975 FRE Legislative History Page.



Text Of The Proposed Restyled Rules


The Federal Evidence Review has published a PDF of the Text Of The Restyled Federal Rules Of Evidence (effective Dec. 1, 2011). The PDF includes direct links to the legislative history of the FRE, jump links to specific rules, and is searchable.

On April 26, 2011, the U.S. Supreme Court approved amendments to restyle the FRE which shall become effective December 1, 2011 in the absence of any congressional action. The text of the amendments transmitted to the Congress are included in the letter of Chief Justice John G. Roberts, Jr. See Letter and Amendments (April 26, 2011).

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Standards For Restyling


The restyled rules are intended to constitute non-substantive changes. The Advisory Committee is trying to avoid any styling changes that would result in substantive changes. The committee adopted the following “working principle” in restyling the rules:

“A change is ‘substantive’ if

  • Under the existing practice in any circuit, it could lead to a different result on a question of admissibility (e.g., a change that requires a court to provide either a less or more stringent standard in evaluating the admissibility of a certain piece of evidence); or
  • Under the existing practice in any circuit, it could lead to a change in the procedure by which an admissibility decision is made (e.g, a change in the time in which an objection must be made, or a change in whether a court must hold a hearing on an admissibility question), or
  • It changes the structure of a rule so as to alter the way in which courts and litigants have thought about, and argued about, questions of admissibility (e.g, merging Rules 104(a) and 104(b) into a single subdivision); or
  • It changes … [so-called a] ‘sacred phrase’ – ‘phrases that have become so familiar as to be fixed in cement.’”
See Report of the Advisory Committee on Evidence Rules, at 2 (May 12, 2008).

Standards: Post-Enactment Treatment

Since the FRE were restyled in December 2011, subsequent decisions have noted that the amendments were non-substantive. The following cases demonstrate this application:

  • First Circuit: Kenney v. Head, 670 F.3d 354, _ n.6 (1st Cir. Jan. 26, 2012) (No. 11-1649) (citing Fed. R. Evid. 401 cmt. 2011 Amendments (noting amendments were "intended to be stylistic only"); Fed. R. Evid. 402 cmt. 2011 Amendments; Fed. R. Evid. 403 cmt. 2011)
  • Second Circuit: United States v. Scott, _ F.3d _, _ n.4 (2d Cir. April 6, 2012) (No. 10–3978–cr) (Noting that the amendment to Rule 404(b), according to the Advisory Committee Notes, "indicate that the change was 'intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.' Fed. R. Evid. 404 advisory committee's note. Our analysis would thus be identical under either version of the Rule."); United States v. Coppola, _ F.3d _, n.17 (2d Cir. Feb. 14, 2012) (No. 10-0065-CR) ("To avoid future confusion, we quote the restyled Federal Rules of Evidence, which took effect December 1, 2011, because their substance is the same as the version in effect at the time of Coppola’s trial. See Fed. R. Evid. 401 advisory committee’s note.")
  • Fifth Circuit: Ellis v. United States, _ F.3d _, n.5 (5th Cir. March 2, 2012) (“Rule 607 was amended on December 1, 2011 for clarity only. It now reads, ‘Any party, including the party that called the witness, may attack the witness’s credibility.’”)
  • Eighth Circuit: United States v. Vega, _ F.3d _ (8th Cir. April 17, 2012) (No. 11–2437) (in methamphetamine distribution and illegal firearms retrial, noting that the amended version of the FRE was “intended to be stylistic only”) (quoting FRE 404 ACN); United States v. Jean-Guerrier, 666 F.3d 1087, _ n.2 (8th Cir. Feb. 2, 2012) (No. 11–1884) ("A new version of the Federal Rules of Evidence went into effect on December 1, 2011 as part of the Federal Rules Style Project. Changes made as part of this project are 'intended to be stylistic only.'") (citing FRE 101 ACN)
  • Ninth Circuit: United States v. Solorio, 669 F.3d 943, _ nn.7 & 8 (9th Cir. Jan. 19, 2012) (No. 10-10304) (in methamphetamine conspiracy trial, noting that both FRE 603 and 604 were "amended in 2011 for purely stylistic reasons,” and “the changes do not reflect an ‘intent to change any result in any ruling on evidence admissibility’”) (quoting ACN)
  • Tenth Circuit: United States v. Irvin, _ F.3d _, n.8 (10th Cir. March 22, 2012) (Nos. 10-3106, 10-3107) (In conspiracy to defraud mortgage lenders in connection with the subprime housing market trial, noting that “[b]eginning December 1, 2011, the wording of Rule 803 was changed to improve its clarity. The changes were ‘intended to be stylistic only’ and do not displace any of this court’s prior holdings on evidence admissibility.") (qutoing FRE 803, ACN (2010 amendments))
  • Eleventh Circuit: United States v. McGarity, 669 F.3d 1218, __ n.30 (11th Cir. Feb. 6, 2012) (No. 09–12070) ("We note that Federal Rule of Evidence 414 was amended effective December 1, 2011. However, the amendment does not change the result of this inquiry, even if it were considered retroactive. Accordingly, we herein quote the pre-amendment language of Rule 414.")
  • Federal Circuit: In re MSTG, Inc., _ F.3d _, _ n.3 (Fed. Cir. April 9, 2012) (No. Misc. 996) ("These amendments, however, were “intended to be stylistic only. There [was] no intent to change any result in any ruling on evidence admissibil-ity.” Fed. R. Evid. 408 advisory committee’s note to 2011 amendments. Thus, we cite here to the amended version of the rules.")

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Supreme Court and U.S. Judicial Conference Action

The restyling amendments were recommended by the U.S. Supreme Court and committees of the U.S. Judicial Conference. The proposal is being considered under the Rules Enabling Act, which authorizes the Supreme Court to promulgate new rules of evidence which shall take effect unless Congress takes other action. The reverse chronology of Supreme Court and judicial committee action is noted below with links to many of the reports:

  • The Supreme Court has the authority to prescribe the federal rules, subject to a statutory waiting period. See 28 U.S.C. §§ 2072, 2075. The Court must transmit proposed amendments to Congress by May 1 of the year in which the amendment is to take effect. 28 U.S.C. §§ 2074, 2075.

DateAction
December 1, 2011 Under the Rules Enabling Act, Congress has a statutory period of at least seven months to act on any rules prescribed by the Supreme Court.

  • If the Congress does not enact legislation to reject, modify, or defer the rules, the restyled FRE take effect as a matter of law on December 1. See 28 U.S.C. §§ 2074, 2075.

April 26, 2011 Under the Rules Enabling Act, the Supreme Court approved amendments to restyle the FRE which shall become effective December 1, 2011 in the absence of any congressional action.

April 1, 2011 Advisory Committee on Evidence Rules Minutes

  • Providing an update on Supreme Court review of the Restyled Rules of Evidence approved by the Judicial Conference in 2010 and submitted to the Supreme Court
  • "The [Supreme] Court notified Judge Rosenthal that it was considering four changes to the Restyled Rules. After a dialog with Judge Rosenthal and the Chair and Reporter of the Evidence Rules Committee, the Supreme Court withdrew its suggestions for change to two of the Rules ---- Rule 405(b) (the suggestion being to drop the word “relevant” from the rule), and Rule 801(a) (the suggestion being to specify that the intent requirement applies only to conduct and not to written or verbal assertions). Judge Rosenthal, the Chair and the Reporter agreed with the changes suggested by the Court with respect to two rules: Rules 408 and 804(b)(4)."

Sept. 14, 2010 U.S. Judicial Conference recommends and transmits a Report Of The Judicial Conference Committee On Rules Of Practice And Procedure To The Chief Justice Of The United States And Members Of The Judicial Conference Of The United States, proposing Restyled Rules

June 14-15, 2010 Report Of The Judicial Conference Committee On Rules Of Practice And Procedure To The Chief Justice Of The United States And Members Of The Judicial Conference Of The United States

April 22-23, 2010 Report of the Advisory Committee on Evidence (May 10, 2010)

  • Advisory Committee on Evidence reviewed the public comments. After making some changes, the Advisory Committee on Evidence requested that the Committee on Rules of Practice and Procedure approve the proposed restyled rules for submission to the U.S. Judicial Conference
Aug. 14, 2009 – Feb. 16, 2010 Nineteen public comments received:

Feb. 16, 2010 Public comments due on proposed restyled Federal Rules of Evidence
Feb. 4, 2010 Advisory Committee on Rules of Evidence public hearing on the proposed style amendments in New York, New York
Jan. 29, 2010 Advisory Committee on Rules of Evidence public hearing on the proposed style amendments in San Francisco, California
Jan. 5, 2010 Advisory Committee on Rules of Evidence public hearing on the proposed style amendments in Phoenix, Arizona
Sept. 2009 Report Of The Judicial Conference Committee On Rules Of Practice And Procedure

  • Progress Report: “The Advisory Committee on Evidence Rules submitted proposed amendments to Rules 801-1103 with a request that they be published for comment. The proposed amendments are the final part of the project to ‘restyle’ the Evidence Rules to make them clearer and easier to read, without changing substantive meaning. The Evidence Rules ‘restyling’ project follows the successful restyling of the Federal Rules of Appellate, Criminal, and Civil Procedure. The Committee approved the advisory committee’s recommendation to publish the proposed amendments to Rules 801-1103, along with restyled Rules 101-706, which were approved earlier but deferred for publication so that all the proposed restyling amendments to the Evidence Rules could be published in a single package.” Report, at 27-28.
Aug. 12, 2009 Memorandum to the Bench, Bar, and Public on Proposed Style Amendments to the Federal Rules of Evidence

The August 2009 restyling amendments include:

June 1-2, 2009 Report Of The Judicial Conference Committee On Rules Of Practice And Procedure

  • Noting in June 2009, the Committee on Rules of Practice and Procedure “approved the advisory committee’s recommendation to publish the proposed amendments to Rules 801-1103, along with restyled Rules 101-706, which were approved earlier but deferred for publication so that all the proposed restyling amendments to the Evidence Rules could be published in a single package.” Report, at 28.
May 6, 2009 Report of the Advisory Committee on Evidence Rules

  • “Recommendation: The Advisory Committee on Evidence Rules recommends that the Standing Committee approve proposed restyled Evidence Rules 101-1103 for release for public comment.” Report, at 6.
  • “The division of responsibility on the restyling projects has conformed generally to the protocol the Stranding Committee has adopted for addressing style issues for a proposed amendment to a rule outside the restyling process. For an amendment outside the restyling project, the relevant Advisory Committee must submit its proposed language to the Style Subcommittee. On style issues, the Style Subcommittee, not the Advisory Committee has the last word. Thus when an Advisory Committee submits a proposed amendment to any rule to the full Standing Committee, the amendment already has gone through a style review, and style issues have been determined by the Style Subcommittee. The Standing Committee chairs have kept the Style Subcommittee small in order to promote consistency. Although the Standing Committee retains the ultimate authority, through the years it has followed the style decisions of the Style Subcommittee, thus ensuring a high level of consistency across all sets of rules.” Report, at 3.
  • Blog Post: Restyling The Federal Rules of Evidence: Final Drafts Completed For FRE 801 to 1103 (Part III)
  • Blog Post: Restyling The Federal Rules Of Evidence: U.S. Judicial Conference To Consider Proposal (Part IV)
March 2009 Report Of The Judicial Conference Committee On Rules Of Practice And Procedure

  • Progress Report: “The Advisory Committee on Evidence Rules submitted proposed amendments to Rules 501-706 with a request that they be published for comment. The proposed amendments are the second part of the project to ‘restyle’ the Evidence Rules to make them clearer and easier to read, without changing substantive meaning. The Evidence Rules ‘restyling’ project follows the successful restyling of the Federal Rules of Appellate, Criminal, and Civil Procedure. The Committee approved the advisory committee’s recommendation to publish the proposed amendments to Rules 501-706 and to delay publishing them until all the Evidence Rules have been restyled, which should occur by June 2009.” Report, at 8.
Jan. 12-13, 2009 Report of the Committee On Rules Of Practice And Procedure

  • Progress Report: “Judge Hinkle reported that the advisory committee had now completed restyling two-thirds of the Federal Rules of Evidence. The final third of the rules, he said, will be more difficult to restyle because it includes the hearsay rules.” Report,
  • “The committee by a vote of 10 to 2 approved the restyled FED. R. EVID. 501-706 for publication, including the substitute language for FED. R. EVID. 501 and 601.” Report, at 29.
Dec. 1, 2008 Report of the Advisory Committee on Evidence Rules

  • “Recommendation: The Evidence Rules Committee recommends that the proposed restyled Evidence Rules 501-706 be approved for release for public comment, with the release to occur when all the restyled rules have been prepared.” Report, at 3.
  • Blog Post: Restyling The Federal Rules of Evidence: Final Drafts Completed For FRE 501 to 706 (Part II)
October 23-24, 2008 Minutes of the Meeting of the Advisory Committee on Evidence Rules

  • Recommending proposed restyled Evidence Rules 501-706 be approved for release for public comment; comments included on proposed restyled Evidence Rules 501-706.
Sept. 16, 2008 Report Of The Proceedings Of The Judicial Conference Of The United States

  • “The Committee on Rules of Practice and Procedure reported that …[p]ublication of proposed restyled Evidence Rules 101-415 has been deferred until the entire Federal Rules of Evidence have been approved for publication.” Report, at 36-37.
Sept. 2008 Report Of The Judicial Conference Committee On Rules Of Practice And Procedure

  • Progress Report: “The Advisory Committee on Evidence Rules submitted proposed amendments to Rules 101-415 and 804(b)(3) with a request that they be published for comment. The proposed package of amendments to Rules 101-415 is the first of three sets of ‘restyled’ Evidence Rules to make them clearer and easier to read. The advisory committee plans to complete work on the remaining two sets in approximately twelve months. The restyling project follows the successful restyling of the Federal Rules of Appellate, Criminal, and Civil Procedure. As with the prior restyling projects, this project is limited to making changes that are stylistic and do not change substantive meaning.… The Committee approved the advisory committee’s recommendation to publish the proposed amendment to Rule 804(b)(3) in August 2008 and to delay publishing the proposed amendments to Rules 101-415 until all the rules have been restyled.” Report, at 34-35.
June 9-10, 2008 Report of the Committee on Rules of Practice and Procedure Meeting

  • Progress Report: “The committee without objection by voice vote approved the proposed amendments [for Rules 101-415] for delayed publication.” Report, at 50.
May 12, 2008 Report of the Advisory Committee on Evidence Rules

  • Recommendation: “The Evidence Rules Committee recommends that the proposed restyled Evidence Rules 101-415 be approved for release for public comment, with the release to occur when all the restyled rules have been prepared.” Report, at 3.
May 1-2, 2008 Minutes of the Advisory Committee on Evidence Rules

  • Recommending proposed restyled Rules 101-415 be approved for release for public comment; comments included on proposed restyled Rules 101-415 with comments approved
  • Blog Post: Restyling The Federal Rules of Evidence: Final Drafts Completed For FRE 101 to 415 (Part I)
March 2008 Report Of The Judicial Conference Committee On Rules Of Practice And Procedure

  • “The advisory committee has begun work on ‘restyling’ the Federal Rules of Evidence to make them clearer and easier to read. The project follows the successful restyling of the Federal Rules of Appellate, Criminal, and Civil Procedure. The advisory committee has developed a detailed preliminary time schedule for the work and established a step-by-step process built on the prior restyling projects. As with the prior restyling projects, this project is limited to making changes that are stylistic and do not change substantive meaning. The advisory committee has divided the Evidence Rules into three main blocks. Proposed changes to the first block of rules will be reviewed at the spring meeting.” Report, at 10.
Dec. 1, 2007 Report of the Advisory Committee on Evidence Rules

  • Progress Report: “At its Fall 2007 meeting the Committee agreed upon a protocol and a timetable for its project to restyle the Evidence Rules. The Committee also reviewed-- on a preliminary basis - some rules that had been restyled by Professor Kimble as draft examples for the Committee's information. The Committee established a step-by-step process for restyling that is substantially the same as that employed in previous restyling projects.”
Nov. 16, 2007 Report of the Advisory Committee on Evidence Rules

  • Committee agrees on process, working principles, and timeline for proposed restyled Evidence Rules, Minutes, at 2-7.
  • Noting “the general sense of the Committee was that the restyling project had merit and was worthy of further consideration. Members reasoned that the Evidence Rules in current form are often hard to read and apply, and that a more user-friendly version would especially aid those lawyers who do not use the rules on an everyday basis. The Committee recognized that before any more work was done on a restyling project, the Committee would need to determine whether the Chief Justice supported restyling of the Evidence Rules. The Reporter to the Standing Committee noted that the Chair of the Standing Committee would be meeting with the Chief Justice in the near future. The sense of the Committee was that it would be useful if the Chief Justice’s views on restyling of the Evidence Rules could be addressed at that meeting.” Minutes, at 3.
May 15, 2007 Report of the Advisory Committee on Evidence Rules

  • "The Evidence Rules Committee has decided to undertake a project to restyle the Evidence Rules. The project is intended to be similar to the restyling projects for Appellate, Criminal and Civil Rules that have been completed… Report, at 9.
April 12-13, 2007 Minutes of the Meeting of the Advisory Committee on Evidence Rules

  • The committee wanted “to determine whether the Chief Justice supported restyling of the Evidence Rules. At the Spring 2007 meeting, John Rabiej reported that the Chief Justice was informed about the possible project to restyle the Evidence Rules and had no objection to the project. In light of the Chief Justice’s position, the Committee voted unanimously to begin a project to restyle the Evidence Rules. No timetable was placed on the project. The Reporter stated that he would work with Professor Kimble to prepare some restylized rules for the Committee’s consideration at the next meeting.”
Minutes, at 21-22.
Dec. 1, 2006 Report of the Advisory Committee on Evidence Rules

  • Progress Report: “At its Fall 2006 meeting the Committee reviewed examples of what three restyled rules of evidence would look like - Rules 103,404(b) and 612. The rules were picked as representative of the types of challenges and questions that would be presented by a restyling project.… Interest in restyling arose when the Committee considered the possibility of amending the Evidence Rules to take account of technological developments in the presentation of evidence. The Committee is determining whether a restyling project might be used to update the paper-based language currently used throughout the Evidence Rules, and more broadly is considering whether restyling is needed to make the Evidence Rules more user-friendly. The Committee engaged in an extensive discussion of the costs and benefits of restyling the, Evidence Rules. Some reservations were noted. Among other concerns, the Committee does not have its full complement of members, so it might be difficult to complete the project in a timely fashion. But the general sense of the Committee is that a restyling project has merit and is worthy of further consideration, because the Evidence Rules in current form are often hard to read and apply, and a more user-friendly version could especially aid those lawyers who do not use the rules on an everyday basis. The Committee recognizes that before anymore work is done on a restyling project, it must be determined whether the Chief Justice would support a restyling of the Evidence Rules. The sense of the Committee was that it would be most helpful if the Standing Committee could inquire into the Chief Justice's views on restyling of the Evidence Rules.” Report, at 7.
May 15, 2006 Report of the Advisory Committee on Evidence Rules

  • “The Evidence Rules Committee has decided to undertake a project to restyle the Evidence Rules. The project is intended to be similar to the restyling projects for Appellate, Criminal and Civil Rules that have been completed....” Report, at 9.
April 24-25, 2006 Minutes of the Advisory Committee on Evidence Rules

  • The Committee agrees to pursue a restyling project, “so long as it was understood that the project would not result in a major restructuring of the Rules, such as a change of rule numbers. The Committee directed the Reporter to pick a few rules that are clearly in need of restyling, and to work with Professor Kimble to prepare a restyled version of those rules for the Committee’s consideration at the next meeting.” Minutes, at 12.

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Other Articles On Restyling The FRE

DateArticle
March 2012 Evidence Viewpoints: Questions and Answers on the Recently Restyled Federal Rules of Evidence, 9 Fed. Evid. Rev. 225-29 (March 2012) (interview of the Honorable Robert L. Hinkle, who served as Chair of the Advisory Committee on Evidence Rules during the restyling amendment process)
September 2011 Restyled Rules of Evidence Third Branch
November 2009 Joseph Kimble, One Last Example from the Proposed New Federal Rules of Evidence Michigan Bar Journal 50-52
October 2009 Joseph Kimble, Still Another Example from the Proposed New Federal Rules of Evidence Michigan Bar Journal 54-55
September 2009 Joseph Kimble, Another Example from the Proposed New Federal Rules of Evidence Michigan Bar Journal 46-48
August 2009 Joseph Kimble, A Drafting Example from the Proposed New Federal Rules of Evidence Michigan Bar Journal 52-53

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Restyling FRE Blog Posts

Blog posts from the Federal Evidence Blog addressing the effort to restyle the Federal Rules of Evidence are available here.


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Federal Rules of Evidence PDF