In our beginning of the year preview, Prospective: Ten Key Evidence Issues For 2009 , we suggested that the effort to “restyle” the FRE was an issue to watch in the new year. Last month, the U.S. Judicial Conference requested public comment on the FRE Restyling. So far, the response has not been overwhelming.
As of October 3, 2009, the Advisory Committee on Evidence Rules received only two comments. One comment by Professor Elliot Glicksman of Thomas M. Cooley Law School, suggests a different restyling for FRE 606(a) than proposed by the Advisory Committee on Evidence Rules. Another comment by the American College of Trial Lawyers’ Evidence Rules Committee addresses a number of restyling issues concerning the FRE up to FRE 706.
Perhaps this lack of response was expected. The comments received on the restyling of other rules of procedure also appeared minimal. However, a close examination of the Minutes of the Advisory Committee on Evidence Rules suggests that there might be some ground for questioning – as well as some for taking reassurance – at the proposed restyling effort.
The committee’s mission in restyling was to avoid making any “substantive” changes in the rules. For the committee, a change was 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.’"
The committee’s application of this criteria, as disclosed by its Minutes, show a membership that was often divided about whether a proposed change in the wording of a FRE was substantive or not. Below are a few examples from the Minutes of the Committee’s discussion of restructuring FRE 803 (Hearsay Exceptions; Availability of Declarant Immaterial). All samples are taken from pages 114 to 122 of the Minutes of May, 2009 (This Minutes pdf file is 189 pages long and may take over a minute to download):
Committee Unanimously Rejects Restyling the “Structure” of FRE 803
One example of the Committee’s application of Criterion 3 (avoiding any alteration about the way the courts or litigants “have thought about, and argued about, questions of admissibility”) is disclosed by its discussion of the proposed redrafting of FRE 803:
“so that the hearsay exceptions would be set forth under a new subdivision (a), and a new subdivision (b) would define ‘record’ for purposes of some Rule 803 exceptions as including a memorandum, report or data compilation in any form. The rationale for the restructuring is that the existing rule follows a number (803) with another number — whereas the proper structure is to follow a number with a letter, with a number, and so forth. [Committee Consultant] Professor Kimble also argued that the new subdivision (b) would streamline the records-based exceptions under Rule 803, by eliminating the need to repeat ‘memorandum, data compilation’ etc. in all those rules.”
As a result of its discussion, the committee decided to reject restructuring the rule. Members feared that changing the structure would disrupt:
“electronic searches and impose transaction costs that far outweighed any benefit. Members argued that it made little sense to define ‘record’ only in Rule 803 when the word ‘record’ appears throughout the Evidence Rules. Indeed it would be a substantive change to define ‘record’ in Rule 803 differently from any other rule. The Committee determined that it would make much more sense to define ‘record’ in the general definitions section … and retain the existing, albeit idiosyncratic, structure of Rule 803.”
FRE 803(2) (Excited Utterance) Change In Part Only
The committee gave a mixed review to a the proposed restyling of the Excited Utterance Exception:
|Current Version||Proposed Restyling|
|(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. (emphasis added)||(2) Excited Utterance. A statement related to a startling event or condition, made while the declarant was under the stress or excitement that it caused. (emphasis added)|
During its discussion, the Minutes note that “members believed that the change from ‘relating to’ to ‘related to’ could substantively alter the scope of the exception. The term ‘relating to’ has been construed to cover statements that are not necessarily ‘related’ in terms of subject matter, but rather are part of the same transaction as the startling event.” Accordingly, the committee unanimously found the change was substantive – apparently violating the first criterion (that the change not “lead to a different result on a question of admissibility” among the circuits). However, once this change back to the original wording of the first clause was made, the committee approved the second change, by modifying “under the stress of excitement caused by the event or condition” to “under the stress or excitement that it caused.”
Division On Restyling FRE 803(4) (Statements for purposes of medical diagnosis or treatment)
The committee split 7-2 over the following revision to the rule:
|Current Version||Proposed Restyling|
|(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. (emphasis added)||
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:|
(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or sensations; or the inception or general character of their cause. (emphasis added)
Two of the committee’s members objected to the change as violating the third criterion (changes to 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) and perhaps the fourth criterion (changing “[a] ‘sacred phrase’ – ‘phrases that have become so familiar as to be fixed in cement”).
The committee’s minutes indicate that the disagreement arose from the revision’s deletion of the word “pain” from the rule. Two committee members “contended that most of the cases under this exception involve statements about the declarant’s pain, and that ‘pain’ is an evocative word to describe the kinds of statements covered by the exception.” However, the majority of the committee seemed to accept the argument of “other members … that the word ‘pain’ is unnecessary because it is covered by the words ‘symptoms” and “sensations’” as made in FRE 803(4)(B) of the proposed revision. In addition, the committee’s Reporter “noted that Professor Broun had surveyed the case law and found no indication that deletion of the word ‘pain’ would lead to any substantive change.”
Why Pay Attention To The Committee’s Past Deliberations?
These insights into the Committee’s deliberations, as provided in the Minutes , indicate that the effort to restyle the FRE involved many substantive discussions of evidence practice in the federal courts. The availability of these Minutes might assist counsel inclined to comment on the proposed revisions. The Minutes can help anyone making a public comment to properly frame the submission. For instance, is the person submitting the comment suggesting that the committee re-evaluate issues it addressed and resolved before, or is one suggesting the committee consider new arguments about the wording of a particular revision that the committee did not consider in the past?
More On The Restyling Effort
In our previous blog article on restyling, we noted that Professor Joseph Kimble of the Thomas Cooley Law School served as a consultant on the FRE restyling project. He shared with the Federal Evidence Blog a link to his useful an article for the Michigan Bar Journal providing insight into the restyling process for the FRE.
Professor Kimble has continued his series on the restyling project. At the beginning of September and October, he published more articles regarding the challenges of writing legal rules in English. Professor Kimble's articles on restyling include:
- "A Drafting Example from the Proposed New Federal Rules of Evidence," August 2009 Michigan Bar Journal 52-53
- "Another Example from the Proposed New Federal Rules of Evidence," September 2009 Michigan Bar Journal 46-48 "Still Another Example from the Proposed New Federal Rules of Evidence," September 2009 Michigan Bar Journal 54-55
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