Boston University Law Review
federal rules of evidence, rulemaking, department of justice
This Article dives into the long-standing debate about the propriety of altering the time-honored Federal Rules of Evidence. Noted authorities, such as the late Chief Justice Rehnquist, have eschewed any modification to the Rules, claiming that they must remain essentially fixed in their original form to maximize their utility to trial advocates and to avoid wasteful dislocation costs that accompany updates. Unlike the many scholarly works examining the merits and demerits of particular evidence rules, this Article shines a light on the lesser examined process of amending the Federal Rules of Evidence, revealing a taxonomy of evidentiary circumstances or trigger points that justify and, indeed, demand a change to the Rules. It demonstrates that amendments are imperative when the Rules may be subject to an unconstitutional application as written; when the Rules are plagued by irreconcilable conflicts in their interpretation and application among circuits; when tectonic shifts in technology, trial practice, or society render the Rules obsolete, unfair, or ill-equipped for the task they were designed to perform, and when amendments will enhance the simplicity and brevity of the Rules and make them easier for judges and litigants to deploy. Rather than debating the risks inherent in rule changes generally, rulemakers can utilize this taxonomy to distinguish a necessary amendment from wasteful tinkering. To illustrate these trigger points, the Article highlights recent and pending amendment proposals and analyzes the amendment process for the Federal Rules of Evidence since 1992, when the Advisory Committee on Evidence Rules was reconstituted. Further, the Article acknowledges the barriers to progress that exist even in these contexts, exploring the deference owed to congressional compromises embodied in the Federal Rules of Evidence, the impact of Supreme Court precedent interpreting existing Rules, and the U.S. Department of Justice’s role in the rulemaking process. Finally, the Article highlights some of the most fundamental principles and practices that may be employed to overcome these barriers and to craft optimal amendments to the Federal Rules of Evidence to ensure their forward progress.
Daniel J. Capra and Liesa L. Richter,
Poetry in Motion: The Federal Rules of Evidence and Forward Progress as an Imperative, 99 B.U. L. Rev. 1873
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/999