Federal Evidence Review

While the Advisory Committee on Evidence Rules did not receive a substantial number of public comments on the effort to restyle the FRE, some additional comments were submitted which will be considered by the committee

As we previously have noted, an effort to restyle the FRE is presently underway. The public comment period on the proposal to restyle the FRE closed on February 16, 2010. The half-year for public comment produced a total of 19 comments. Originally, the Advisory Committee on Evidence Rules scheduled hearing dates on the proposal. However, apparently as a result of lack of commentators, the public sessions were canceled.

The effort to “restyle” the Federal Rules of Evidence is focused on making non-substantive modifications to the rules. The expectation was that this would help clarify the rules and render them easier to use. The Advisory Committee on Evidence Rules will meet in New York on April 22-23, 2010, to consider the comments received and to make final recommendations on restyling.

The Federal Evidence Blog has been monitoring the restyling proposal. Previously, on February 11, 2010, the Federal Evidence Blog presented a list of the nine public comments received by the Advisory Committee at that time – a week before the close of the public comment period. Today, we conclude that list, presenting the additional comments received before the deadline. Another nine comments were received:

• Federal Magistrate Judges Association (Honorable Thomas C. Mummert, III) (“[T]he FMJA doubts the value of restyling the Federal Rules of Evidence. … The definitions and phrasing have become part of the lexicon of the trial courts and trial bar. There seems to be little to gain and a risk of much confusion in restyling for restyling’s sake”; specific analysis of FRE 801, 803, 902)

• Professor Roger Park, UC Hastings School of Law (“I think that restyled Rule 104(a) arguably makes a substantive change. Restyled Rules 103© and 401 do not make substantive changes, but I think that they shorten the existing rules in ways that make them less clear.”)

• Professor Richard D. Friedman, University of Michigan School of Law (commenting on FRE 104, 105, 412, and 801; also providing comments from Mr. Joshua Camson of the ABA Committee on the Federal Rules of Criminal Procedure and Federal Rules of Evidence)

• American Bar Association’s Section of Litigation (Landis Best) (“The overwhelming majority of the proposed changes will lead to clearer rules that will be of great benefit…. We respectfully submit … comments … in an effort to improve the rules even further and to highlight any suggested stylistic changes that may have unintended substantive import.”)

• The State Bar of California Committee on Federal Courts (Joan Jacobs Levie) (comments on FRE 104, 802, 901, 902, and 1005; “for consistency and clarity, we believe there should be a general rule (comparable to Federal Rule of Civil Procedure 86), expressly-stating that the 2010 revisions are stylistic only”)

• Professor John Scott, Thomas M. Cooley Law School (discussion of FRE 801, 405, and 410)

• Katharine T. Schaffzin, University of Memphis, Cecil C. Humphreys School of Law (“The proposed amendments to the Rules do, however, maintain certain phrases the Committee implicitly deemed to be “sacred.” Unfortunately, the preserved language of these “sacred phrases” is archaic and often unclear. In many cases, these phrases can be understood only through research of their meanings and experience in practice.”)

• Professor James J. Duane, Regent University School of Law, (noting “some substantive changes that were unintentionally made by the revisers”; “some … redundancies that were retained (or in some cases added) in the proposed revisions; identifying “many archaic, awkward, and ungrammatical phrases and cross-references that were retained or added)

• National Association of Criminal Defense Lawyers (William J. Genego) (comments concerning the restyling of FRE 401, 404(b), 407, 411, 801, and other matters)

With the public comment period closed, the Advisory Committee plans to meet on April 22-23, 2010, to make its final recommendations. The next step involves a report of final recommendations to the U.S. Judicial Conference. If the Conference agrees with the recommendations, it would forward the proposed changes to the U.S. Supreme Court for promulgation under the Rules Enabling Act. If the Supreme Court issues the proposed rules by May 1, 2011, the amendments may take effect on December 1, 2011, unless Congress otherwise acts.

The Federal Evidence.Blog will continue to monitor the progress of the FRE restyling proposal. For more information, along with a time line and links to many of the reports considered during the drafting and review process, see the Restyling FRE Legislative History Page.