Restyling FRE: Early Assessment Of The "Restyled" Rules Of Evidence (Part XIV)

Since the Federal Rules of Evidence were "restyled" on December 1, 2011, how have the courts referenced the new rules? A review of recent circuit decisions shows that the courts of appeal have applied the new rules even though the restyled version was not used at the time of trial, emphasizing that the impact of the amendment in wording and format was non-substantive

As we previously noted, the FRE were amended on December 1, 2011. The amendments were intended to make the rules easier to use and were not intended to result in substantive changes. Over the past few months, how have the courts greeted the new rules?

Since the rules were only recently enacted, most trial courts could not apply the restyled rules until recently. Interestingly, many circuit opinions have applied the new rules noting the post-December 1 version now applies and that the language restyling did not affect the application of the rule.

Non-Substantive Changes Intended

During the drafting of the proposed “restyled” rules, the Advisory Committee on Evidence Rules applied a “working principle” to discern and avoid substantive rule changes:

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 (May 12, 2008).


Whether a change is substantive or not can be subject to reasonable disagreement. Obviously, if the parties felt that a court was applying the restyled rules in a substantive manner, the parties would highlight the legislative history for the court.

Recent Application Of The "Restyled" Rules

Since the FRE were restyled in December 2011, subsequent decisions have noted that the amendments were non-substantive. The following cases highlight 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. 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.")
  • Eighth Circuit: 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))
  • 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.")

Resource Materials

The Federal Evidence Review has provided a number of resource materials on the Restyled FRE at FederalEvidence.com, including:

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