Restyling The Federal Rules Of Evidence: Final Drafts Completed For FRE 101 to 415 (Part I)

The evidence rule restyling process is underway with review of one-third of the rules completed

A project to “restyle” the FRE is well underway. So far about one-third of the rules (24 of the 67 evidence rules) have been restyled as part of a draft proposal. On May 1-2, 2008, the Advisory Committee on Evidence Rules met in Boston and unanimously voted to approve the proposed restyled rules (FRE 101-415). These draft rules will be included in a final package for all of the restyled rules. The Standing Committee will ultimately decide whether the package of restyled rules will be released for public comment as part of amendments to the FRE. See Report of the Advisory Committee on Evidence Rules (May 12, 2008).

The restyled rules are intended to constitute non-substantive changes. In this review process, the committee has seen that some of the proposed recommendations would result in substantive changes, which were eliminated from the proposal. So, when is a restyling change a substantive change? The committee applies the following "working principle":

"A change is ‘substantive’ if
  1. 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
  2. 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
  3. 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
  4. It changes … [so-called a] ‘sacred phrase’ – ‘phrases that have become so familiar as to be fixed in cement.’"

Report of the Advisory Committee on Evidence Rules, at 2.

Example Of Restyled Rules

As an example of the proposed restyling, the table below posts on the left the current versions of FRE 101 (Scope), FRE 102 (Purpose) and FRE 103 (Rulings on Evidence). In the right column appear the restyled versions.

Existing Rule (May 2008)Restyled Rule (May 2008)
Rule 101. Scope
Rule 101 - Scope
These rules govern proceedings in the courts of the United States and before the United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101. These rules apply to proceedings before United States courts. The specific courts and proceedings to which the rules apply, along with exceptions, are set out in Rule 1101.
Rule 102. Purpose and Construction Rule 102 – Purpose
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.
Rule 103. Rulings on Evidence Rule 103 – Rulings on Evidence
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context, or

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and

(1) if the ruling admits evidence, the party, on of the record

(A) timely objects or moves to strike, and

(B) states the specific ground, unless it was apparent from the context, or

(2) if the ruling excludes evidence, the party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record - either at or before trial - a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon It may direct the making of an offer in question and answer form. (c) Court's Statements About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.
(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. (d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct the proceedings in a jury trial so that inadmissible evidence is not suggested to the jury by any means.
(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. (e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
To review a pending draft of the restyled rules (FRE 101-415), see Appendix C to the Evidence Committee Report on May 12, 2008.

The committee has proposed a target date of August 2009 to release the entire package of style amendments for public comment, as part of the rules amendment process under the Rules Enabling Act, 28 U.S.C. § 2071- 2077.

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.

Federal Rules of Evidence