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

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


   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


   “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


   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


Consequently, it was

decided to have Capra

prepare a report on the


   “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.’”



   Case Law Divergence

from the Federal

Rules of Evidence,

197 Federal

Rules Decisions 531