Academic journal article Boston University Law Review

Poetry in Motion: The Federal Rules of Evidence and Forward Progress as an Imperative

Academic journal article Boston University Law Review

Poetry in Motion: The Federal Rules of Evidence and Forward Progress as an Imperative

Article excerpt


Chief Justice William Rehnquist was known to say of the Federal Rules of Evidence that they should rarely, if ever, be altered.1 In counseling against efforts to polish the Rules to perfection, Chief Justice Rehnquist gave voice to a valid and enduring principle: the Federal Rules of Evidence are purposely concise and were designed to be nimble. Practitioners can commit them to memory for instant deployment in the quick-draw contest that traditionally has been the American trial. Think seasoned trial titans like Clarence Darrow crossexamining William Jennings Bryan in the groundbreaking Scopes case in the hot Tennessee summer of 1925.2 Excessive tinkering with evidence rules would impose significant dislocation costs on both judges and courtroom advocates, who would be required to adapt constantly and to expend resources litigating new language injected into long-standing evidentiary doctrines. Incessant amendments would also raise the specter of unintended consequences, disrupting the settled operation of the Rules around them. Chief Justice Rehnquist's admonition was rooted in these traditional assumptions about the use of the Evidence Rules and in the inefficiencies that imprudent and excessive reform efforts would generate.3

But the rigid rejection of efforts to modify the Rules also poses significant risks to the trial process. Reform is an important ingredient in any healthy body of rules and the Federal Rules of Evidence must continue to evolve to retain their utility and contemporary viability. Allowing the Rules to become fixed in their 1975 iteration threatens to undermine the goals of uniformity, fairness, and simplicity that they were designed to foster. Amendments to the Evidence Rules are thus imperative to protect the uniformity the Rules were designed to achieve, to ensure the contemporary relevance of evidentiary standards enacted in 1975, to resolve ambiguities, and even to prevent genuine injustice. Not every amendment designed to achieve these goals will thwart the settled expectations of experienced trial lawyers. When drafted carefully and vetted thoroughly, amendments to the Evidence Rules should make them clearer and easier to apply than their ancestors. By resolving conflicts in the case law, amendments can reduce the costs inherent in applying the Rules in individual cases.

Furthermore, the traditional assumptions about applying the Rules of Evidence "on the fly" may be somewhat anachronistic in the world of contemporary litigation. The phenomenon of the vanishing trial has been widely reported.4 Given the paucity of trials, evidence rules are far more often applied in the context of summary judgment and as part of the compromise of civil and criminal cases than they are in the courtroom. Even in the trial context, significant evidentiary issues-such as the admissibility of "other crimes" evidence, the admissibility of prior convictions, and the admissibility of expert opinion testimony-are frequently presented before trial in in limine motions. Judges and lawyers can and should consult the rule book for updates in these situations in which the Rules are not being applied "in the heat of battle."

Allowing any set of rules, even trial rules like the Federal Rules of Evidence, to calcify and become frozen in place presents a grave danger to their efficacy and fairness. Indeed, this risk became apparent after the Advisory Committee on Evidence Rules was disbanded following the enactment of the Rules in 1975. With no body tasked with oversight of the Rules and with no ready mechanism for modification, commentators grew increasingly concerned about the conflicting interpretations in the courts and about the Rules ' long-term viability.5 Amid calls for reform, the Advisory Committee on Evidence Rules was reconstituted in 1992 to oversee amendments to the Rules to avoid such a stale state of affairs.6

Change is notoriously hard and potentially risky, but it is sometimes necessary. …

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