Evidence Myopia: The Failure to See the Federal Rules of Evidence as a Codification of the Common Law

By Weissenberger, Glen | William and Mary Law Review, May 1999 | Go to article overview

Evidence Myopia: The Failure to See the Federal Rules of Evidence as a Codification of the Common Law


Weissenberger, Glen, William and Mary Law Review


INTRODUCTION

   We interpret the legislatively enacted Federal Rules of Evidence as we
   would any statute.(1)

We live in an "age of statutes."(2) Consequently, when a court encounters a body of rules resulting from a process that concluded with legislation, the court may find it hard to resist the conclusion that the rules are subject to the principles used to interpret statutes. The Supreme Court of the United States is no exception. Describing the Federal Rules of Evidence ("Federal Rules" or "Rules") as a "legislative enactment,"(3) the United States Supreme Court has stated that a court should use "traditional tools of statutory construction" in interpreting the Federal Rules.(4) With minor variation, the same analysis appears in virtually every case rendered by the Supreme Court interpreting the Federal Rules of Evidence.(5) Although the Supreme Court has not metaphorically joined the terms "tool" and "construction" in every pertinent case, it has been consistent in treating the text of the Rules as the text of a statute.(6) As a result, the Supreme Court has interpreted the Federal Rules of Evidence with principles drawn from the extensive and elusive body of law applicable to statutory construction. Despite the Court's consistency in commencing with the premise that the Federal Rules of Evidence are a statute, evidence scholars have noted a remarkable inconsistency in the way in which the Court actually interprets the Federal Rules of Evidence.(7) Indeed, the Supreme Court has failed to advance a manageable set of guiding interpretational principles for the Federal Rules of Evidence despite numerous efforts at construction.(8) The Court's difficulty in articulating a coherent hermeneutic for construing the Federal Rules of Evidence may be traceable to the inherent incompatibility of the text of the Rules and customary principles of statutory construction.(9)

When the United States Supreme Court claims that the Federal Rules of Evidence must be interpreted by use of the "traditional tools of statutory construction," its statement is likely to be treated as inviolable.(10) Taking the Supreme Court's "tool" metaphor seriously has led many evidence scholars to the ineluctable next step of sorting through and selecting which "tools" of statutory construction should apply.(11) This exercise inevitably results in an examination of the various schools of thought regarding the construction of statutes, extracting the most attractive or pertinent features from those schools, and then forging a unique theory for interpreting the Federal Rules of Evidence.

Participants in the recent scholarly debate concerning the interpretation of the Federal Rules of Evidence are evidence professors who appear to have an irresistible compulsion to revisit the issue.(12) Although several scholars have published more than one article on the subject, the most recent and most orchestrated synthesis of earlier scholarship on the interpretation of the Federal Rules is the product of Professors Imwinkelried, Scallen, and Taslitz, each of whom is a major participant in the debate focusing on the proper interpretational approach to construing the Rules.(13) In what might be described as a debate struggling to find a conflict, Professors Imwinkelried, Scallen, and Taslitz have each advocated an interpretive scheme that draws upon established theories for construing statutes. In his latest contribution to the debate, Professor Imwinkelried summarily cites five schools of thought that he derived from literature applicable to statutory' construction: plain meaning, legal process, textualism, practical reasoning, and politically realistic hermeneutics.(14) Sifting through common ground and seeking to find harmony with Professors Scallen and Taslitz, Professor Imwinkelried has endeavored to embrace certain aspects of the practical reasoning model endorsed by Professor Scallen as well as certain elements of the politically-realistic hermeneutics model supported by Professor Taslitz. …

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