Restyling FRE: Looking Back One Year Later (Part XV)

Last December 2011, the Federal Rules of Evidence were "restyled"; since then, the courts have recognized and applied the amended rules noting that substantive changes were not intended by the amendments; one year later, the primary goals for the restyling largely appear to have been accomplished

The Federal Rules of Evidence were "restyled" on December 1, 2011. The restyled Federal Rules of Evidence represented the culmination of several years of effort. Like other rule amendments, the proposal was considered through the seven step process identified by the Administrative Office of the Courts for the adoption of an amendment under the Rules Enabling Act.

One of the judicial leaders of the reform effort, U.S. District Judge Robert L. Hinkle, the Chair of the Advisory Committee on Evidence Rules during the restyling amendment process, summarized the objectives:

The goal was to retain the substance of the evidence rules — change their meaning not at all — but to make them clearer and easier to use. We also wanted to say the same thing in the same way and different things in different ways, in order to avoid misinterpretation.... We wanted rules that could be read and understood on their face, without knowing a secret code for what they really meant but did not say. We wanted rules that could
be readily understood not only by an attorney who is in court regularly, but by one who is not.

Evidence rules are used in the courtroom, sometimes on a moment’s notice. They need to be clear and readily understood.

See Evidence Viewpoints: Questions and Answers on the Recently Restyled Federal Rules of Evidence, 9 Fed. Evid. Rev. 225, 227 (March 2012) (questions and answers with U.S. District Judge Robert L. Hinkle, the Chair of the Advisory Committee on Evidence Rules).

The final product has been commended by practitioners and recognized in two awards, a Burton Award for Reform in Law and a ClearMark Award which is given to "the best plain language documents and web sites". See Restyled Rules of Evidence, The Third Branch (Sept. 2011).

Recent Application Of The "Restyled" Rules

Since the FRE were restyled in December 2011, subsequent decisions have noted that the amendments were non-substantive. As no circuit has yet found the textual changes to the rules to make any substantive change in rules, this suggests that the primary objectives of the restyled rules largely appear to have been accomplished:

  • First Circuit: Kenney v. Head, 670 F.3d 354, 358 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, 677 F.3d 72, 77 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, 671 F.3d 220, 244 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, 673 F.3d 367, 373 n.5 (5th Cir. March 2, 2012) (No. 10-50845) (“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.’”)
  • Seventh Circuit: United States v. Smith, 697 F.3d 625, 634 n.2 (7th Cir. Oct. 4, 2012) (Nos. 11-2128, 11-2398) ("Federal Rule of Evidence 702 was amended in 2011, effective December 1, 2011. Fed. R. Evid 702. The changes were merely stylistic and not intended "to change any result in any ruling on evidence admissibility.") (citing FRE 702, ACN)
  • Eighth Circuit: United States v. Darden, 688 F.3d 382, 385 n.2 (8th Cir. Aug. 7, 2012) (No. 11–3161) (in prosecution for possessing with intent to distribute cocaine base, being a felon in possession of a firearm, and being an unlawful user of a controlled substance in possession of a firearm, in considering admission of a .45 firearm and video game console found during search, noting that the December 2011 amendments to the FRE "intended to be stylistic only") (quoting FRE 101 ACN)); United States v. Morales, 684 F.3d 749, 755 n.3 (8th Cir. July 12, 2012) (No. 11-2557) (in conspiring to distribute conspiracy and distribution of methamphetamine trial, in considering whether the failure to seek a final ruling on the admission of defense expert video testimony noting that the restyled FER “went into effect on December 1, 2011” and were “stylistic only”) (citing United States v. Jean-Guerrier, 666 F.3d 1087, 1091 n.2 (8th Cir. 2012)); United States v. Garcia-Hernandez, 682 F.3d 767, 772 n.2 (8th Cir. June 26, 2012) (No. 11-3286) ("quot[ing] the version of the Federal Rules of Evidence which was in effect at the time of" the trial "in June 2011, prior to the publication of a new version of the Rules in December 2011.") (citing United States v. Jean-Guerrier, 666 F.3d 1087, 1091 n.2 (8th Cir. 2012)); United States v. Vega, 676 F.3d 708, 719 n.3 (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, 1091 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. Leal-Del Carmen, 697 F.3d 964, 973 n.7 (9th Cir. Aug. 13, 2012) (No. 11-50094) ("We cite to the version of the Rules of Evidence that was in place when Leal-Del Carmen was tried in November 2010. The rules discussed in this section were amended in 2011, but the changes made were stylistic only.") (citing FRE 402 ACN); United States v. Solorio, 669 F.3d 943, 950 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, 656 F.3d 1151, 1164 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. Woods, 684 F.3d 1045, 1064 n.24 (11th Cir. June 18, 2012) (No. 11–11665) ("Rule 414 was amended in December 2011. However, even if that amendment were retroactive, the amendment was stylistic only and does not change the outcome of our inquiry. See Fed. R. Evid. 414 advisory committee’s note (“These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.”). All quotations of Rule 414 reflect the pre-amendment language."); United States v. McGarity, 669 F.3d 1218, 1244 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., 675 F.3d 1337, 1344 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 admissibility.” Fed. R. Evid. 408 advisory committee’s note to 2011 amendments. Thus, we cite here to the amended version of the rules.")

Resource Materials

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


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