Pending Comments On Proposed Restyled FRE 101-615 (Part IX)

Pending restyling changes to the FRE remain under consideration. On April 22-23, 2010 the Advisory Committee on Evidence Rules will meet in New York to consider the public comments received on the proposal to restyle the FRE.

A judicial committee has advanced in its consideration of a major effort to restyle the FRE. The Federal Evidence Blog has been monitoring the developments and will continue to do so. During the six months period for public comment, only nineteen comments were received. In this post, we highlight specific rules on which comments were submitted during the recently concluded public comment period.

Which rules received the most attention in the public comments? The chart below tracks persons or organizations that have offered comments on specific rules (for Articles I to VI of the FRE).

Commentators On Restyled FRE 101 – FRE 611

Restyled Rule Description Commentators
101 Scope Best
102 Purpose Best
103 Rulings Park, Duane
104 Preliminary Questions Best, Park, Friedman, Levie, Duane
105 Limited Admissibility Friedman
201 Judicial Notice Best
401 Relevant Evidence Park, Genego
402 Admissibility Best
403 Exclusion of Relevant Evidence Schaffzin
404 Character Evidence Best, Schaffzin
405 Proving Character Park, Scott
406 Habit Best
407 Remedial Measures Best
408 Compromises Best
410 Pleas Inadmissible Scott
411 Liability Insurance Best, Duane, Genego
412 Sex Offense Cases Friedman, Best, Duane
501 Privileges Best
603 Oath Schaffzin, Duane
604 Interpreters Best
606 Witness Competency Glickman, Schaffzin
608 Character/Condition Best
609 Impeachment Bellin, Park, Best, Schaffzin, Duane
611 Mode of Interrogation Best

As for the affiliations of the commentators, most were either connected to a law school or submitted public comments on behalf of a legal professional organization. As for who the commentators were, the following information is available:

Affiliation of Commentators on FRE 101-615

Academia

  • Professor Katharine T. Schaffzin , University of Memphis, School of Law

Professor John Scott, Thomas M. Cooley Law School

Professional Associations

With only 19 public comments submitted on the restyling, the depth and diversity of the comments becomes clear when one examines the range of comments received. Below we examine the comments to the restyling proposal for FRE 401. This provides a flavor of the task faced by the Advisory Committee at its New York meeting this month.

FRE 401: Definition of Relevant Evidence

Current Version Restyled Proposal
“Rule 401. Definition of ‘Relevant Evidence’ “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” “Evidence is relevant if it has any tendency to make more or less probable the existence of a fact that is of consequence in determining the action.”

The proposed restyling attempts to shift the focus of the rule from simply “defining” the term, to how the courts actually use the rule, as a test of relevance. The revision makes the rule much more abbreviated and less wordy. Three commentators addressed aspects of the restyling of FRE 401 concerning the definition of relevant evidence. One commentator (Professor Park) considered the current longer version a bit more accessible in terms of the user understanding the dynamics of the test the court would use in assessing relevance. In making the same point that the proposed restyling is less understandable, the NACDL suggested that there could be specific situations in which the change “could affect the result in a ruling on evidence admissibility.” Unlike Professor Park’s view of the change as one going to a reader’s understanding of the rule, the NACDL saw in the restyling the actual potential for changing the application of the rule, rendering more facts relevant under the test of FRE 401.

Professor Park: The Change Is No Improvement

I disagree with this change. I like the current rule’s final words, “than it would be without the evidence.” Those words encourage a comparison between the state of the proof with and without the proffered evidence. The restyled rule means the same thing, but making a sentence as short as logic permits does not always make the sentence more clear.

The old version helps students remember that the evidence does not need to make the fact more probable than not, but only more probable than it would be without the evidence. In class, I find myself saying things like “it only has to be more probable than it would be without the evidence” or “it only has to move the needle a little bit.
Professor Michael Avery of Suffolk was the first to make this point…. Several evidence professors responded “amen” or made comments agreeing with him.

I suggest that the body of the restyled rule be changed to read as follows:

“Evidence is relevant if it has any tendency to make a fact that is of consequence in determining the action more probable or less probable than it would be without the evidence.”

Genego Transmittal of NACDL Comment:

The commentator suggested that the problem with the restyling was that it would result in more than restyling:

The existing rule defines relevancy by asking whether evidence makes the existence of a fact more or less probable “than it would be without the evidence.” The proposed stylistic change eliminates the phrase “than it would be without the evidence.” Evidence that may make a fact more or less probable in the abstract, may not do so if it is merely cumulative of existing evidence. The existing rule, in effect, imposes a cumulative limitation in the definition of relevant evidence. Evidence that might be deemed not relevant under the existing rule because it does not make a fact more or less probable “than it would be without the evidence,” (because it is merely cumulative), and which would consequently be, inadmissible under Rule 402, could be deemed relevant under the rule as it is proposed to be amended and thus admissible under Rule 402. Thus, the proposed stylistic change could affect the result in a ruling on evidence admissibility.

It is up to the Advisory Committee to determine if any of the comments warrant a change in the proposed rules, both for FRE 401 and for the many other restyled rules in the FRE Articles I-VI series. In contrast to the commentary received on FRE 401 defining relevance, the next blog essay on restyling (number X in the series) will focus on the different type of issues that arose in the public comments on the restyled FRE rules concerning hearsay.

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
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