Public Comment Deadline On Proposed Restyling Of The Federal Rules Of Evidence (Part VII)

With the deadline on Tuesday, February 16, 2010, a few comments have been received on the proposal to restyle the Federal Rules of Evidence

As part of a series, we have been following the effort to “restyle” the Federal Rules of Evidence. In August 2009, the Standing Committee on Rules of Practice and Procedure released the entire package of draft style amendments for public comment, under the Rules Enabling Act, 28 U.S.C. §§ 2071-77. The proposed changes are intended to be non-substantive modifications to the rules. See Assessing The FRE Restyling Effort Through The Minutes Of The Advisory Committee On Evidence Rules (discussing steps taken to avoid substantive changes).

Public comments are due by Tuesday, February 16, 2010. Specific attention was invited on four areas:

  1. The definition of “record” in restyled Evidence Rule 101(b)(4), including the bracketed language;
  2. The use of ‘admitted to prove’ in restyled Evidence Rules 803(7)(A), 803(10), 803(14)(A), 803(22)(C), and 803(23);
  3. The use of bullet points in restyled Evidence Rules 402, 407, 501, 802, and 1101; and
  1. The restyling of Evidence Rule 801(d)(2)(B).

See Memorandum to the Bench, Bar, and Public on Proposed Style Amendments to the Federal Rules of Evidence. Under the current timeline, if the proposed changes are recommended by the Judicial Conference and then issued by the Supreme Court, the restyled Federal Rules of Evidence could become effective as early as December 2011, unless Congress otherwise acts.

With the upcoming public comment period soon to end, not many comments have been received thus far. The following is a summary of public comments received:

  • Professor Elliot B. Glicksman, Thomas M. Cooley Law School “(comment on FRE 606(a): “A juror may not testify before the jury on which they sit. If they do the court must give opposing counsel an opportunity to object. This suggestion for change remains direct, removes all ambiguity and deletes unnecessary prepositional phrasing.”)
  • Ken McKinney (“The revisions of the Federal Rules of Evidence are useful and accomplish the purpose of the Conference in clarifying and simplifying the rules from a stylistic standpoint.”)
  • Thomas E. McCutchen, member in the American College of Trial Lawyers (recommending “fewer amendments and changes made less often”; “Stability is a great thing. Relearning the wheel every year is a negative.”)
  • Clifford A. Rieders (noting concern that a narrow definition of “record” is used which may constitute a substantive change to the rules; “An argument could be made that this definition of ‘record’ could have a limiting effect on admissible evidence by leaving out other possible written documents that are not a memorandum, report or data compilation.”)
  • Jeffrey Bellin, Assistant Professor of Law, Southern Methodist University Dedman School of Law (commenting on FRE 609 (Impeachment by Evidence of Conviction of Crime): “A plausible reading of the Proposed Rule is that a district court ‘must’ allow the impeachment if the balancing test is satisfied, and may allow the impeachment, in its discretion, if the test is not satisfied.”; suggesting corrective language)

Once final comments are received, the Judicial Conference Advisory Committee on the Federal Rules of Evidence will decide whether to submit any proposed changes to the Standing Committee on Rules of Practice and Procedure.

For more on the proposed Restyled Federal Rules of Evidence, including the specific pending proposals, see Restyling The Federal Rules Of Evidence Legislative History Page.

Federal Rules of Evidence