Austin Law Firm
Rules of Evidence
Report Cites Cases that Conflict with the Plain Langauge of the Rules
By John S. Austin
Litigation News Associate Editor
Published in Litigation News Online Vol. 27, No. 6
A potential minefield
awaits trial
lawyers when courts
diverge from the Federal
Rules of Evidence,
but a report
published by the Federal
Judicial Center
should help them plan
their steps to avoid
disaster.
The report, “Case
Law Divergence from
the Federal Rules of
Evidence,” outlines
evidentiary rulings
that conflict with the
wording of the rules
and addresses issues
where the rules are
silent.
“The Advisory
Committee has
expressed concern
that the divergence
between case law and
the text of the rule
might create a trap for
the unwary,” author
Daniel J. Capra, the
Reporter for the Advisory
Committee on
Evidence Rules, writes
in the report’s introduction.
“The point of the
piece is that simply
reading the Rules of
Evidence is not
enough,” Capra says.
“Even a rule of evidence
that appears to
be controlling can be
construed differently
by a court.”
The report highlights
only major
instances in which
case law has diverged
from an applicable
rule. It does not intend
to imply that any of
the cases were
“wrongly decided” or
that a rule might need
to be amended, the
report states. “The
goal of this report is to
point out the case law
divergence from the
Federal Rules of Evidence
without commenting
on the merits
of that divergence.”
The report is not a
comprehensive treatment
of case law construing
the evidence
rules. “The goal of this
report is to raise ‘red
flags’ with lawyers
and judges, by providing
basic information
about areas in which
case law can be found
that diverges from the
text of the Federal
Rules of Evidence.
“All we are trying
to do is to make the
practitioner aware that
the literal language
does not always control,”
Capra says.
“You need to check
the case law and commentary
to see where
courts fall.”
The Advisory
Committee wanted to
promulgate a series of
new committee notes,
but could not do so
without enacting a
new rule, Capra says.
The report results
from the need to
update the advisory
notes to the Rules of
Evidence without having
to subject them to
amendment, adds Gregory
P. Joseph, New
York City, a member
of the Advisory Committee
and past Chair
of the Section of Litigation.
“The Advisory
Committee asked if we
could simply amend
the advisory notes,”
Joseph says. After
studying the question,
it was clear that amending
the advisory
notes would require
the same rule-making
process as a change to
a rule itself, Joseph
says.
Joseph would like
to see annually amended
Advisory Notes on
every attorney’s desk,
but he sees the poten-
tial danger in amending
the Notes. “It
would result in substantive
changes without
the formal rulemaking
process.”
Consequently, it was
decided to have Capra
prepare a report on the
divergences.
“The case law is not
in complete synch with
the rules,” says Joseph.
“In some cases, they
differ in very material
respects.” While divergence
from the rules
may create pitfalls for
the unwary, Joseph
does not see “a gigantic
problem.” The
answer is simply providing
the materials.
“The most important
thing is that people
know where they are,”
Joseph says.
Other sources have
always been available,
but annotations regarding
divergence generally
can be found in
multi-volume treatises.
The report “saves you
about 1,000 pages so
that’s why it’s handy
to have,” Joseph says.
The report covers
topics including relevancy,
probative versus
prejudicial value,
and hearsay exceptions.
The report first
divides the rulings into
two categories: examples
of cases in conflict
with the text of
the rule and examples
of case law where the
rule and commentary
are silent. Each category
is then ordered
by rule number.
Judicial decisions
on evidence are difficult
to report because
most are not appealed,
says Joseph. In reporting
the decisions,
Capra did not observe
a pattern in the federal
circuits or one circuit
that diverges more
than others.
“Where a rule
would not achieve its
intent or desired result,
the courts may apply
the rule beyond the
rule’s language,” Capra
says. Divergence is
common but not pervasive,
he adds.
In most cases,
a judge will admit
important evidence,
Joseph advises. “If
you have an important
point, you might want
to look at that judge’s
decisions,” he suggests.
While evidentiary
rulings may not be
idiosyncratic, rulings
may differ from judge
to judge, Joseph warns.
“Just like the number
one rule they taught
you in law school,
‘Know your judge.’”
Citation:
Case Law Divergence
from the Federal
Rules of Evidence,
197 Federal
Rules Decisions 531
(2000).