evidence; amendments; hearsay; residual exception


The Rules have been amended many times in the forty years since they were enacted. Unlike the original drafting process, which necessarily involved consideration of the Rules as a whole, each round of amendments was limited to a specific Rule or set of Rules. This particularized focus is not myopic, but unavoidable; the Rules are numerous and complex, and the time of the Advisory Committee and Congress is limited. But after more than forty years, a broader perspective is possible. The purpose of this Article is to provide a small bit of that perspective, which this Article distills into three “commandments” for amending the Rules. After a brief history of the residual exception and a description of the proposed amendment, this Article considers the extent to which that proposal complies with these commandments.

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Evidence Commons