After several years in drafting and review, the final proposal to restyle the FRE has now advanced for consideration and approval by the U.S. Judicial Conference in September 2010 (the fourth of seven key steps on the path towards enactment); the Judicial Conference will consider the Report approved by the Standing Committee in June 2010
As we have reported before (see past blog posts), since 2006 the Advisory Committee on Evidence Rules has undertaken the substantial effort to restyle the FRE. See Table. On June 14-15, 2010, the Standing Committee on Rules of Practice and Procedure unanimously recommended that the U.S. Judicial Conference approve and transmit the restyled rules to the U.S. Supreme Court, consistent with the process under the Rules Enabling Act. The Standing Committee’s report summarizing the proposal and including the proposed text of the restyled rules, along with public comment and amendments, are now available. See Report Of The Judicial Conference Committee On Rules Of Practice And Procedure To The Chief Justice Of The United States And Members Of The Judicial Conference Of The United States, at 27-30; see also Proposed Amendments to the Federal Rules of Evidence.
During the public comment period, nineteen comments were received. While public hearings were scheduled, none were held since an insufficient number of requests to testify were received.
One key issue concerns what constitutes a non-substantive “restyling” versus a “substantive” change. As noted in the Standing Committee Report, at 27:
The advisory committee established the following principles for determining whether a proposed change was “substantive” and therefore beyond the proper ambit ofthe restyling project. A proposed change was “substantive” if: (1) under existing practice in any circuit, it could lead to a different result on a question of admissibility; (2) under existing practice in any circuit, it could lead to a change in the procedure by which an admissibility decision is made; (3) it changes the structure of a rule or method of analysis in a manner that fundamentally changes how courts and litigants have thought about, or argued about, the rule; or (4) it changes a “sacred phrase” a phrase that has become so familiar in practice that to alter it would be unduly disruptive to practice and expectations (for example, “unfair prejudice” or “truth ofthe matter asserted”).
The approval by the Standing Committee, last June, is the fourth of seven key steps identified by the Administrative Office of the Courts:
August 2009 – December 2011 Amendments (Effective Dec. 1, 2011)
Proposed Amendments to the Federal Rules of Evidence: August 2009
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.