Long Live the Federal Rules of Evidence!

Category: Print Issues

Daniel J. Capra & Liesa L. Richter

Volume 31

, Issue 1

31 GEO. MASON L. REV. 1 (2023)

Introduction

The Federal Rules of Evidence have been pronounced dead. Indeed, the Federal Rules of Evidence have recently been declared dormant, stagnant, frozen, lethargic, and yes, deceased. In The Living Rules of Evidence, Professor Alexander Nunn claims that the Rules are lifeless, incapable of any meaningful change, and littered with anachronistic, and even dangerous, standards and provisions.¹ To blame for the moribund state of the Federal Rules of Evidence is the bureaucratic and complex federal rulemaking process that requires amendments to the Rules to traverse multiple constituencies in a multi-year process before taking effect. As a result of this cumbersome structure, Professor Nunn declares meaningful evidentiary progress through rulemaking an impossibility and claims that the Evidence Advisory Committee charged with initiating reform proposals has failed to achieve any significant reform in a half century.² The antidote to this sorry state of affairs is to be found in “Living Evidence” theory that returns to the glory days of common law development of evidentiary reforms and empowers federal judges to create evidence standards fit for the twenty-first century through flexible interpretation of the Federal Rules of Evidence. By emphasizing the normative justifiability of evidentiary standards—and even by elevating considerations of justifiability over fidelity to Rule text—federal judges can purportedly accomplish the sweeping and dynamic change that the Federal Rules of Evidence so desperately need.

To borrow the legendary words apocryphally coined by Mark Twain, reports of the death of the Federal Rules of Evidence have been greatly exaggerated.³ The Federal Rules of Evidence are the most successful codification of the law of evidence in history.⁴ They have been adopted by the vast majority of state jurisdictions and have even been used as a model for foreign jurisdictions seeking to improve upon or establish rational evidentiary standards.⁵ The rulemaking process has not had the “half century” to pursue reform that Professor Nunn suggests because the Evidence Advisory Committee was disbanded for almost two decades following the enactment of the Rules.⁶ Since its reconstitution, however, the Evidence Advisory Committee has been constantly active, monitoring the federal cases for problematic trends and proposing updates to account for contemporary norms and shifts.⁷ The rulemaking process has successfully restyled the entire body of Rules and has ushered in significant reforms. These reforms have improved the rights of the criminally accused, protected the interests of victims of sexual assault, clarified the standards for admitting expert opinion evidence, and transformed the doctrine of privilege waiver to account for the modern realities of electronic discovery. With eight proposed amendments to the Federal Rules of Evidence currently in the rulemaking pipeline, progress continues.⁸ Thus, the death of the Federal Rules of Evidence is fake news.

Based upon provocative declarations that the Federal Rules of Evidence are “dead,” and that the rulemaking process is unequal to the task of resurrecting them, Professor Nunn claims that “living evidentiary theory”—also known as “Living Evidence” theory—is the antidote that will breathe life back into the Rules.⁹ According to this theory, the federal judiciary should call upon its historical prerogative in the evidence arena to interpret the Rules to achieve “justifiable” outcomes—those that align with what Professor Nunn refers to as “modern cultural sentiments,” “evolving standards of decency,” and “best empirical understandings.”¹⁰ “Living Evidence” theory contemplates “holistic” judging in which federal judges “coupl[e] adherence to the [Federal Rules of Evidence] with a deep appreciation for modern realities.”¹¹ Although the “theory” instructs judges to bear in mind fidelity to the Federal Rules of Evidence, as well as the normative justifiability of the outcome achieved, it openly advocates elevating perceived justifiability over fidelity in appropriate circumstances where the two values clash.¹² Using this avant-garde approach to interpretation, the federal judiciary can purportedly achieve the type of revolutionary change that rulemaking has failed to produce to provisions like: the excited utterance and dying declaration hearsay exceptions, the “laughing stock” of the Federal Rules of Evidence; Rule 606(b) governing juror testimony about jury deliberations; and, of course to Rule 609 that regulates impeachment of testifying witnesses based upon their prior convictions.¹³ Finally, Professor Nunn suggests that rulemakers will play an important feedback role in this interpretive process, offering the “final word” by “endorsing, abrogating, or systematizing . . . judicial innovations.”¹⁴

“Living Evidence” theory, which is simply old wine poured into a verbose new glass, suffers from very serious analytical defects, however.¹⁵ First and foremost is the threat to important separation of powers interests posed by judicial rejection or alteration of the Federal Rules of Evidence in pursuit of outcomes perceived to be more “justifiable.” In addition, “Living Evidence” theory openly calls for a return to the past where individual judges innovate evidentiary standards according to developing cultural norms.¹⁶ But this ignores the complexity, inconsistency, and inefficiency that characterized the common law era of evidence and that led to the adoption of the Federal Rules of Evidence in the first place.¹⁷ By calling upon federal judges to remake the Federal Rules of Evidence to achieve normatively justifiable outcomes based upon “modern” cultural sentiments, “Living Evidence” also opens the door to a dangerous new world order where the individual sentiments of particular judges determine which outcomes are dictated by “modern realities.”¹⁸ In addition, the mechanics of a “Living Evidence” paradigm remain unclear. Professor Nunn fails to explain how federal judges tasked with bold innovation are to wrestle with time-honored concepts like stare decisis in achieving their aims. The concept of rulemaker as regulator at the end of the “Living Evidence” road, through which rulemakers later endorse or abrogate judicial innovations, also poses a logical conundrum. If federal courts are empowered to adopt “justifiable” outcomes that are not faithful to the text of the Rules in the first instance, by what authority may the rulemaking process ever rein them in? A catch-22 if ever there was one. Lastly, the defects of “Living Evidence” are fully displayed by the hodgepodge of often internally inconsistent, and sometimes dangerous, reforms it promises to deliver.

In essence, “Living Evidence” theory depends upon two critical assumptions: that the Federal Rules of Evidence are irretrievably stagnant and that federal judges can breathe them back to life by elevating the perceived modern justifiability of evidentiary outcomes over fidelity to rule text. This Article dismantles both assumptions in three parts. Part I offers a history of the Federal Rules of Evidence and a careful look at the statutorily prescribed rulemaking process by which the Rules are reformed under the Rules Enabling Act.¹⁹ Part II traces many of the significant reforms to the Federal Rules of Evidence achieved through the rulemaking process since the Evidence Advisory Committee was reconstituted in the 1990s. It explores updates made to account for modern expert opinion testimony, as well as innovations designed to respond to the rapid technological advancement of the twenty-first century.²⁰ Although Professor Nunn accuses the rulemaking process of ignoring the rights of the criminally accused and the victims whose stories were revealed by the #MeToo movement, Part II demonstrates that the rulemaking process has consistently focused on fairness for both groups.

Having shown that the Federal Rules of Evidence are very much alive, Part III then deconstructs “Living Evidence” theory.²¹ It first elaborates upon the threat that “Living Evidence” interpretation poses to the proper separation of powers between Congress and the federal courts when it sacrifices fidelity to the text of the Federal Rules of Evidence in the name of normative justifiability. It then demonstrates that evidentiary standards are the product of complex policy determinations best left to a democratic rulemaking process and not empirically derived scientific truths to be divined by individual judges. Part III illustrates the variability that is sure to characterize judicial determinations of normative justifiability in the evidence space and that will allow “Living Evidence” theory to be mobilized in service of multifarious aims. Part III also demonstrates the faulty mechanics of “Living Evidence” in action that doom the theory as unrealistic and unworkable. It reveals the fallacy of rulemakers as the regulators of “Living Evidence” interpretive theory. If the federal judiciary possesses the power to elevate the perceived normative justifiability of outcomes over fidelity to the text of the Federal Rules of Evidence, the Federal Rules of Evidence become a paper tiger and rulemakers are powerless to stop any eventual onslaught of ill-conceived reforms. Finally, Part III explores some of the specific reforms that “Living Evidence” theory promises to deliver, revealing the incoherent and systemically bankrupt patchwork of advances it will produce. The Article then briefly concludes.

I. History of the Federal Rules of Evidence and the Rulemaking Process

A. Pre-Rules Common Law: Inequities, Inefficiencies, and the Need for Rules

Prior to the enactment of the Federal Rules of Evidence, evidentiary standards were littered throughout voluminous cases, statutes, and court rules. Common law development was the principal means of formulating rules for admitting evidence at trial.²² Professor Nunn emphasizes the rapid evolution of evidentiary standards as the method of adjudication transformed from an inquisitorial process to an adversarial one in which jurors were selected for their neutrality and lack of familiarity with the dispute.²³ But this transformation to an adversarial form of adjudication was complete by the time the Judicial Conference, the policymaking body for the federal courts, began studying the viability of uniform evidence rules in 1961.²⁴ Although Professor Nunn claims that the Federal Rules of Evidence were swept in on the positivist wave of the twentieth century, evidence law evaded codification and was left to common law development far longer than other areas of federal practice.²⁵ The Federal Rules of Civil Procedure took effect in 1938 and the Federal Rules of Criminal Procedure took effect in 1946.²⁶ By the time serious consideration of a federal evidence code began in the 1960s, the common law of evidence was characterized by certain stable foundational precepts.²⁷ A general prohibition on hearsay evidence was widespread.²⁸ Evidence of a person’s character or propensity to behave in predictable ways was generally forbidden.²⁹ Evidence had to be authenticated by its proponent in order to be admitted.³⁰ Codification came at a time when the adversarial system as we know it was well-formed and after the common law had coalesced around a shared set of evidentiary standards.

Still the common law era of evidentiary development was not the heyday that Professor Nunn conjures. In its preliminary report, the Judicial Conference’s Committee on Rules of Practice and Procedure, which was convened to study the feasibility of a uniform code of evidence, collected commentary on the existing law of evidence from experts and scholars.³¹ This esteemed group described the common law of evidence as characterized by “spotted and often accidental growth”; as “an old-fashioned crazy quilt made of patches cut from a group of paintings by cubists, futurists and surrealists”; as “a mass not capable of being perfectly mastered and used by everyday judges and practitioners”; as “too extensive, too complex, and too uncertain to apply accurately on the spur of the moment”; and as a “spawning mass of rulings and statutes which tend increasingly to clog trial machinery.”³²

Indeed, the shortcomings in the common law approach to evidence were significant. First, evidence standards were voluminous and difficult to ascertain. One federal judge noted that a treatise entitled Texas Law of Evidence covered 1,650 pages that a litigant needed to absorb to litigate in a Texas court.³³ Unlike other rules of procedure that may be applied from the comfort of an office prior to trial, evidence standards must frequently be identified, interpreted, and applied in the heat of the moment during trial proceedings. Trial judges and lawyers were hard-pressed to locate and apply controlling standards efficiently in the maze of the common law.³⁴ Furthermore, standards described at length in a series of cases tended toward the complex and archaic and demanded significant study.³⁵ The absence of an evidence code meant costly disruptions to find answers in a tangle of caselaw without the benefit of a single authoritative source of answers.³⁶ In addition, common law evidence standards lacked the permanence crucial to a predictable trial process. They could be changed as easily as they were created with the stroke of a jurist’s pen.³⁷ Even more troubling was the inconsistency in applicable standards across federal courts. A witness competent to testify in one federal jurisdiction might be barred from testifying in another.³⁸ Thus, the much-vaunted common law approach to evidentiary development threatened unequal access to justice across jurisdictions, a particularly problematic feature in criminal prosecutions.

Due to concerns regarding the complex, confounding, and erratic common law of evidence, the Committee unanimously recommended pursuit of the project.³⁹ The Committee highlighted the many advantages of a uniform code of evidence:

The principles, precedents, and procedures can be organized, clarified, simplified, and abbreviated. These are things that cannot be accomplished through decisions of the courts and cannot be adequately maintained over the years through the use of statutes. Rules of court are made by those who are familiar with the use of evidence in court and the questions which arise in connection therewith. They are interpreted by those who made them and are in sympathy with them. Rules may be tested in actual practice and then shaped to the needs of litigation. The bench and bar take part through their representation on advisory committees and by other means.⁴⁰

B. Rulemaking: An Inherently Democratic Process

The Federal Rules of Evidence were enacted through a federal rulemaking process that remains largely intact today. Professor Nunn’s assumptions and accusations about the rulemaking process are critical to his call for a “living” approach to judicial interpretation of the Federal Rules of Evidence. Yet, in his indictment of rulemaking, Professor Nunn glosses over the detailed system of checks and balances embedded in the process and even mischaracterizes it as one “that vests ultimate decision-making authority over evidence law with rulemakers.”⁴¹ This critique calls to mind a star chamber of powerful rulemakers holding the levers of evidentiary progress. Contrary to this troubling vision, the federal rulemaking process is an inherently democratic approach to evidentiary policy that safeguards the opportunity for public notice and comment and that appropriately shares authority between the legislative and judicial branches of government.

The starting point for determining proper authority over evidence law in the federal court system is, of course, the U.S. Constitution. Congress possesses the constitutional authority to create the lower federal courts and to make any rules that are necessary to their proper function.⁴² Exercising this authority, Congress passed the Rules Enabling Act in 1934.⁴³ The Rules Enabling Act delegates congressional authority to make rules regulating practice and procedure in the federal courts to the U.S. Supreme Court—a body with expertise in the needs of the federal court system.⁴⁴ The Judicial Conference is responsible for the process by which rules of practice and procedure are formulated.⁴⁵ The Judicial Conference has authorized a Standing Committee on Rules of Practice and Procedure to vet rule proposals made by advisory committees responsible for each specialized area of federal rulemaking.⁴⁶

Thus, a federal Evidence Advisory Committee is responsible in the first instance for proposing reforms to the Federal Rules of Evidence.⁴⁷ A federal judge chairs this Committee that is made up of experienced state and federal judges at the trial and appellate levels, as well as esteemed lawyers well-versed in trial practice.⁴⁸ The Department of Justice enjoys a permanent position on the Advisory Committee and the Federal Defender’s Office correspondingly holds a seat.⁴⁹ Liaisons from advisory committees responsible for the Federal Rules of Criminal and Civil Procedure and from the Standing Committee provide routine and significant input.⁵⁰ The work of the Evidence Advisory Committee is supported by a reporter, an academic who provides comprehensive research support to facilitate the Committee’s work.⁵¹ Contrary to Professor Nunn’s characterization, however, there is no seat (or vote) on the Evidence Advisory Committee for an academic.⁵²

The rulemaking process typically (though not exclusively) begins with the Advisory Committee.⁵³ Reform proposals may emanate from concerned legislators, experienced trial judges, practitioners, academics, and pro se litigants, as well as from the independent research of the reporter.⁵⁴ The reporter briefs Committee members on conflicts among the circuits in the interpretation of evidentiary provisions, on misapplications of rules, on gaps in the coverage of the rules, and on provisions that need updating for contemporary developments.⁵⁵ Importantly, the agenda materials relied upon by the Advisory Committee are published on the U.S. courts website for all to see.⁵⁶ The Committee’s meetings are open to the public.⁵⁷ Lawyers, students, and journalists often attend. Finally, the Advisory Committee’s deliberations are captured in detailed minutes that are also publicly available.⁵⁸ After a full opportunity to deliberate, the Committee members vote on whether to publish a proposed rule change for public notice and comment.⁵⁹ If Committee members approve publication, the proposal heads to the Standing Committee for approval.⁶⁰ An amendment proposal may be published for public notice and comment only if the Standing Committee approves.⁶¹ An approved proposal is published in mid-August and the comment period remains open for six months.⁶² Comments are filed electronically through the U.S. courts website.⁶³ The comment period provides an all-important opportunity for input from affected constituencies; individuals, lawyers, judges, and associations offer critical insight into the costs and benefits of a particular rule change.⁶⁴

The comment period is instrumental in ensuring that an amendment does not create unforeseen consequences. To offer a recent example, the Advisory Committee proposed abolition of the hearsay exception for ancient documents in 2015 to adapt the Rules to contemporary technological norms.⁶⁵ The amendment was a response to the ubiquitous retention of electronically stored documents approaching the “ancient” designation under the exception.⁶⁶ All of this electronically stored information would become automatically admissible for its truth under the exception as it existed.⁶⁷ Although retention of a document for twenty or more years may have offered some evidence of innate reliability in the twentieth century, the same could not be said for automatically retained electronic information. Notwithstanding the remedial intent behind the proposal to abolish the exception, public comment revealed steady use of the ancient documents exception in latent toxic tort and child abuse cases that was not reflected in published federal opinions.⁶⁸ The Advisory Committee responded to the outpouring of concern regarding complete abolition of the exception by modifying the amendment proposal to allow continued admissibility of documents prepared before January 1, 1998—the general advent of electronically stored information (“ESI”).⁶⁹ Thus, public comment allowed the amendment to be refined to achieve its goal of modernizing the Rules, while preserving the important role of the ancient documents exception in righting latent wrongs.

After the public comment period closes, the Advisory Committee may vote to propose an amendment to the rule with an accompanying Advisory Committee note describing the rationale and import of the amendment.⁷⁰ An amendment proposal must be approved by the Standing Committee and the Judicial Conference.⁷¹ If an amendment proposal clears these hurdles, it moves to the Supreme Court, the body charged with rulemaking by the Rules Enabling Act.⁷² If the Supreme Court approves a proposed amendment, it transmits the proposal to Congress—the body with ultimate constitutional authority over the operation of the federal courts—by May 1.⁷³ Congress possesses the ultimate authority to reject or alter a proposed amendment.⁷⁴ Under current standards, a proposed amendment automatically takes effect on December 1 if Congress takes no action.⁷⁵

Careful examination of the statutorily mandated rulemaking process demonstrates that rulemaking is not autocratic. There is no star chamber with closely held power able to modify the Federal Rules of Evidence. Rulemaking is an inherently democratic process. It preserves a voice for all affected constituencies. It allows for input by pro se prisoner litigants, members of the general public, and powerful interest groups alike.⁷⁶ The materials, proceedings, and proposals from the entire process are publicly available.⁷⁷ The rulemaking process replaces the decision of any one judge about optimal admissibility rules with the collective wisdom of the federal judiciary as a whole. Advisory Committee members are stewards and shepherds of amendment proposals to be sure. But ultimate decision-making authority regarding the Federal Rules of Evidence rests with the Supreme Court and Congress.⁷⁸ Both entities enjoy veto power and Congress retains the constitutional power to directly modify the Rules of Evidence.⁷⁹ Professor Nunn is correct that the rulemaking process is time-intensive and cumbersome.⁸⁰ But “[t]he separation of powers that is part of the structure of the Constitution is not designed for efficiency.”⁸¹

The story of the original enactment of the Federal Rules of Evidence illustrates the important democratic and separation of powers interests served by the orderly operation of the rulemaking process.

C. A Delicate Dance: Enactment of the Original Federal Rules of Evidence

The evidence rules were late to the positivist party that Professor Nunn decries. The Federal Rules of Civil Procedure took effect in 1938—almost forty years before the enactment of the Federal Rules of Evidence.⁸² The move to codify the law of evidence didn’t even begin in earnest until 1961, when the Judicial Conference approved the formation of an ad hoc group to study the feasibility of a uniform code of evidence.⁸³ That committee concluded that the Supreme Court had the authority under the Rules Enabling Act to promulgate rules of evidence.⁸⁴ Further, citing the many complexities and inefficiencies inherent in the common law approach to evidence in existence at the time, the committee declared the formulation of uniform rules of evidence for the federal courts “both feasible and desirable.”⁸⁵

As a result, in 1965, Chief Justice Earl Warren appointed a 15-member Advisory Committee to undertake the process of drafting a federal code of evidence.⁸⁶ Professor Edward Cleary was the reporter to the original Advisory Committee.⁸⁷ The Committee worked over a three-and-a-half-year period.⁸⁸ A draft of the proposed rules was released for extensive public comment in 1969, and the Advisory Committee made revisions in light of those comments.⁸⁹ The revised draft was sent to the Judicial Conference, which approved the draft and sent it to the Supreme Court.⁹⁰ But the Supreme Court returned the draft to the Judicial Conference in 1971 for another round of public comment.⁹¹ By this time, both the Justice Department and Senator John McClellan, then-Chair of the Senate Judiciary Committee, had submitted numerous objections to the rules.⁹² Many requested changes were made by the Advisory Committee.⁹³ A revised draft was again submitted to the Supreme Court.⁹⁴ The Justice Department requested that the Court make more changes to the rules, which it did before submitting the proposed rules to Congress for approval on November 20, 1972.⁹⁵

Previously, when the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure were transmitted to Congress, Congress took no action and allowed the Court’s proposed rules to take effect.⁹⁶ But concern over the proper separation of powers and congressional authority over evidence law surfaced in the evidence rulemaking process. Indeed, Justice William Douglas dissented from the Supreme Court’s order passing the proposed rules on to Congress, citing such concerns.⁹⁷ As it turned out, many members of Congress were also concerned that wholesale adoption of an entire code of evidence, without congressional enactment, was problematic.⁹⁸ For one thing, the draft rules arrived in Congress in the midst of the Watergate scandal during which Congress was deeply concerned about executive privilege.⁹⁹ Many were concerned that the proposed rules of privilege in the draft evidence code were “substantive” and thus beyond the scope of rulemaking.¹⁰⁰ Thus Congress acted affirmatively to prevent the original Federal Rules of Evidence from taking effect through the Rules Enabling Act process that had spawned the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure.¹⁰¹ On February 7, 1973, Congress passed Public Law 93-12, which provided that the evidence rules would not be effective until expressly approved by Congress.¹⁰² Congress further amended the Rules Enabling Act to require any rule “creating, abolishing or modifying an evidentiary privilege” to be “approved by Act of Congress.”¹⁰³

There were extensive hearings in Congress on the proposed evidence rules.¹⁰⁴ Congress ultimately rejected the draft privilege rules approved by the Supreme Court in favor of Rule 501—a provision that leaves the development of privilege to the common law.¹⁰⁵ But Congress was not solely concerned about privilege, and it took aim at many other provisions. The draft rules would have made all prior inconsistent statements made by testifying witnesses admissible for their truth at trial.¹⁰⁶ Concerned about the reliability of such prior inconsistent statements, Congress significantly narrowed Rule 801(d)(1)(A) to admit only prior inconsistent statements made under oath and at a trial, hearing, deposition, or other proceeding.¹⁰⁷ In addition, Congress made significant changes to Rule 609 concerning impeachment of testifying witnesses with criminal convictions.¹⁰⁸ The Supreme Court’s draft allowed impeachment of any testifying witness with a prior felony conviction or a conviction that directly involved dishonesty.¹⁰⁹ It contained no special protections for criminal defendants.¹¹⁰ Both the House and Senate expressed concerns about prejudice to a testifying criminal defendant when prior convictions are introduced.¹¹¹ Congress ultimately limited felony conviction impeachment with a balancing test not included in the original draft rule.¹¹² It narrowed the admissibility of former testimony in civil cases, allowing admissibility only when the party-opponent or that party’s “predecessor in interest” had previously cross-examined the testimony.¹¹³ It tinkered with draft rules governing the admissibility of habit evidence, the admissibility of compromise offers and negotiations, the competency of testifying witnesses, and juror testimony impeaching a verdict.¹¹⁴ Congress restored traditional limitations on the scope of cross-examination, which had been eliminated from the draft of Rule 611.¹¹⁵ In addition to making changes to draft rules, Congress also added commentary on the appropriate interpretation of rules included in the Court’s version.¹¹⁶ In sum, Congress took an active role in revising and reforming the Federal Rules of Evidence.

A final version was ultimately approved and signed by President Gerald Ford on January 2, 1975.¹¹⁷ Following this enactment process, Professor Cleary noted that “[t]he most basic and fundamental assumption underlying the Rules is that of congressional supremacy.”¹¹⁸

As enacted, the Federal Rules of Evidence differed dramatically from other federal rules of practice and procedure.¹¹⁹ Although Professor Nunn emphasizes that the Rules were ushered in during an era of positivist reform, the Evidence Rules were not designed to place a prescriptive straight jacket on the trial process. Instead, they were (and are) characterized largely by broad, flexible provisions that encourage truth-seeking through maximal admissibility. The relevance standards found in Rules 401 and 402, which provide the bedrock for admissibility, demand only that evidence possess any tendency, however small, to make material facts more or less probable.¹²⁰ It leaves to the trial judge the decision whether such a tendency exists.¹²¹ Other foundational provisions, such as Rules 403, 404(b), 609(a)(1), and 703, are driven by balancing tests that explicitly leave significant discretion to trial judges to determine proper outcomes for concrete factual contexts.¹²² Even provisions that purport to operate as exclusionary rules, such as Rules 404(a), 407, 408, and 412, contain exceptions and escape clauses that may be utilized to permit admissibility under certain circumstances.¹²³ Although Rule 802 states a general prohibition on hearsay evidence, the residual exception preserves flexibility for the trial judge to admit otherwise inadmissible, trustworthy hearsay evidence.¹²⁴ And Rule 611(a) provides vast discretion for the trial judge to address problems in the presentation of evidence creatively during the trial.¹²⁵ Any evaluation of the state of the Federal Rules of Evidence and of the need for reform must be made with this reality in mind.

D. The Ice Age for the Federal Rules of Evidence

The Federal Rules of Evidence did indeed experience an ice age following their enactment in 1975. After the Federal Rules became law, the Supreme Court disbanded the Advisory Committee on Evidence Rules.¹²⁶ During this period, any rule administration was left to the Advisory Committees on Civil and Criminal Rules.¹²⁷ Given the specialized focus and extensive workloads of the criminal and civil rules committees, the Federal Rules of Evidence suffered from a lack of detailed and consistent oversight.¹²⁸

Truly frozen Federal Rules of Evidence are highly problematic. Predictably, courts became divided on the meaning of many rules.¹²⁹ Federal courts disagreed about the applicability of the common law Frye¹³⁰293 F. 1013 (D.C. Cir. 1923). standard for admitting expert opinion testimony under Rule 702.¹³¹ They struggled with the predicate for admitting co-conspirator hearsay under Rule 801(d)(2)(E).¹³² Federal courts disagreed about the existence of a “pre-motive” requirement for prior consistent statements admitted under Rule 801(d)(1)(B).¹³³ During this period, the Rules, indeed, stagnated and confusion surrounded several key provisions. In 1992, Judge Edward Becker and Professor Aviva Orenstein decried this state of affairs in an influential law review article and called for the Evidence Advisory Committee to be reinstated.¹³⁴ Shortly thereafter, Chief Justice William Rehnquist reconstituted the Advisory Committee on Evidence Rules.¹³⁵

In The Living Rules of Evidence, Professor Nunn repeatedly criticizes a “half century” of rulemaking stagnation since the 1975 enactment of the Federal Rules of Evidence.¹³⁶ But rulemaking achievements cannot be fairly evaluated without an accurate picture of history. Any lack of progress in the twenty years following the 1975 enactment of the Federal Rules of Evidence is not an indictment of the current rulemaking scheme simply because there was no structured rulemaking oversight of the Federal Rules of Evidence during this period. Instead, the success of the rulemaking process in advancing the Federal Rules of Evidence must be measured from the reinstatement of the Evidence Advisory Committee in the mid-1990s. As detailed below, within this timeframe, the rulemaking process has yielded many significant amendments resolving conflicts plaguing the federal courts and reforming the Rules to keep pace with contemporary advancement.

II. The Federal Rules of Evidence Are Very Much Alive

A. Poetry in Motion

Since the reinstatement of the Evidence Advisory Committee in 1993, the rulemaking process has generated forty amendments to the Federal Rules of Evidence.¹³⁷ This includes three which became effective on December 1, 2023 and five more scheduled to become effective on December 1, 2024.¹³⁸ This number does not include the massive project to amend every single Federal Rule of Evidence as part of a restyling effort, completed in 2011.¹³⁹ In addition, Congress has continued to flex its constitutional muscle by directly enacting four evidence rules without any Advisory Committee input.¹⁴⁰ Congress has also directly enacted two evidence rules in collaboration with the Evidence Advisory Committee.¹⁴¹ This is not to say that the Federal Rules of Evidence have achieved perfection. To be sure, work remains to be done and progress must continue.¹⁴² Still, a review of the rulemaking process under an active Evidence Advisory Committee reveals a healthy pattern of consistent updating and refinement of the Rules. Reports of their demise are greatly exaggerated.

Professor Nunn dismisses this record of steady improvement, characterizing every one of the numerous amendments to the Federal Rules of Evidence as modest and inconsequential.¹⁴³ Even more damning, he accuses rulemaking of turning a blind eye to the problems of wrongful conviction revealed by modern DNA testing and the Innocence Project, as well as to the plight of sexual assault victims revealed by the #MeToo movement.¹⁴⁴ This sweeping and surface critique overlooks the significance of many of the very amendments it dismisses.

B. Meaningful Progress

The rulemaker’s role is to monitor the Federal Rules of Evidence and to ensure their fair and efficient operation. As noted in the influential article by Judge Becker and Professor Orenstein, rulemaking oversight is critical to resolve costly interpretive ambiguities, to eliminate circuit splits that threaten the uniform operation of the Rules across jurisdictions, and to ensure the contemporary viability of the Rules.¹⁴⁵ Time and again, the rulemaking process has yielded significant amendments to the Federal Rules of Evidence that have advanced these lofty goals.

1. Expert Opinion Testimony

The rulemaking process delivered a blockbuster with its amendments to Rules 701 and 702 in 2000, which updated, clarified, and illuminated the standards and processes for admitting expert opinion testimony in federal court.¹⁴⁶ Of course, expert opinion testimony plays a key role in both criminal and civil cases, and the admissibility requirements for such testimony are often outcome determinative.¹⁴⁷ In their article lamenting the dangers of a frozen body of evidence law, Judge Becker and Professor Orenstein highlighted the circuit split that had evolved regarding the admissibility of expert opinion testimony and the continued viability of the Frye standard requiring “general acceptance” in the scientific community.¹⁴⁸ Thereafter, the Supreme Court interpreted the spartan, then-existing version of Rule 702 to reject Frye and to require a threshold finding of reliability to support admission of scientific expert opinion testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc.¹⁴⁹ But the Court did not apply the new Daubert standard, leaving lower courts to struggle with the mechanics in the first instance. In addition, the Court left open questions about the application of the standard to non-scientific opinion testimony.¹⁵⁰ As the Court developed the new Daubert standard through a famous trilogy of opinions, the lower federal courts scrambled to comprehend and apply newly announced Daubert factors.¹⁵¹

The rulemaking process intervened to ensure that the Rules reflected a clear and accurate roadmap for admissibility. First, Rule 702 was amended to enumerate that an expert must rely on sufficient facts or data, employ a reliable methodology, and apply that methodology reliably to the facts of the case to have her opinion admitted in federal court.¹⁵² In so doing, the rulemaking process broke down the amorphous Daubert reliability standard into identifiable component parts. The amendment also provided that the trial judge, as gatekeeper, must find these threshold requirements satisfied by a preponderance of the evidence before admitting expert opinion testimony.¹⁵³ Thus, the 2000 amendment to Rule 702 codified, structured, and amplified the standards for gatekeeping expert testimony, set forth by the Supreme Court. Recognizing the significant confusion plaguing the lower courts in connection with the admissibility of expert opinion testimony, the Evidence Advisory Committee included an in-depth analytical note to the 2000 amendment, which offered detailed guidance on Rule 702’s application in a variety of contexts.¹⁵⁴ The significance of the guidance offered by the rulemaking process cannot be overstated. That Committee note has been cited by more federal courts than any other Committee note under any of the federal rules of procedure.¹⁵⁵

After elucidating the standard for admitting expert opinion testimony, the rulemaking process closed a dangerous loophole that threatened to undermine this important work. Rule 701 permits lay witnesses to offer opinion testimony if it is “rationally based” upon their first-hand perceptions and “helpful.”¹⁵⁶ Litigants may call lay witnesses not disclosed as experts and elicit opinion testimony under this far more flexible standard.¹⁵⁷ Parties were prone to using this mechanism to call undisclosed experts in lay clothing—proffering them as lay witnesses, only to offer “expert” opinions without satisfying the strictures of Rule 702.¹⁵⁸ After updating the Rule 702 admissibility requirements, the rulemaking process addressed this problem with a companion amendment to Rule 701.¹⁵⁹ This amendment foreclosed use of Rule 701 as a backdoor to evade the more stringent requirements of Rule 702, providing that opinion testimony by lay witnesses may not be “based on scientific, technical, or other specialized knowledge.”¹⁶⁰ The rulemaking process, with its structured stages, shared authority, and opportunity for public comment, is uniquely suited to address this type of interplay between provisions. Careful study of Rule 702 not only resulted in an overhaul of that core provision, but it also addressed consequential pressure applied to another rule.

As will be discussed below, rulemaking efforts have again focused on Rule 702 with additional amendments forthcoming in 2023.¹⁶¹ It is difficult to see how major structural amendments to Rule 702, the provision governing the admission of all-important expert opinion testimony in criminal and civil cases, can be dismissed as modest and inconsequential. It is clear from the hundreds of public comments submitted in connection with amendments to Rule 702 that the bench and bar, which rely upon Rule 702 to litigate cases every day, do not consider its amendment insignificant.¹⁶²

2. Twenty-First Century Protection Against Waiver of the Attorney-Client Privilege

Rule 502 was a paradigm-altering provision designed in collaboration with Congress to respond to outcry about escalating costs of electronic discovery in the early 2000s.¹⁶³ The longstanding tradition of page-by-page attorney review of materials disclosed to an adversary during discovery failed to translate efficiently to an era of exploding ESI. Litigants involved in complex commercial litigation were forced to expend wasteful millions to comply with preliminary discovery obligations.¹⁶⁴ The practice of performing time-consuming “eyes-on” privilege review was driven by common law privilege and waiver doctrine. Traditional waiver doctrine imposed broad subject matter waiver as a potential penalty for inadvertent disclosures, threatening damaging disclosures well beyond a privilege holder’s initial inadvertent production.¹⁶⁵ “The specter of such damaging privilege waivers . . . led to the [costly] tradition of expensive page-by-page pre-production review.”¹⁶⁶ The Advisory Committee for the Federal Rules of Evidence invested years in constructing a waiver rule fit for the twenty-first century reality of electronic discovery.¹⁶⁷ The result was Rule 502.¹⁶⁸

Rule 502(a) quashed concerns about damaging subject matter waiver by restricting such broad waivers to instances of intentional, strategic, privileged disclosures that result in unfairness to an opponent.¹⁶⁹ Drawing upon its expertise regarding the evidence rules as a whole, the Advisory Committee modeled Rule 502(a) upon the fairness standard found in the Rule 106 completeness provision.¹⁷⁰ Rule 502(b) prevented a waiver even in the case of inadvertent disclosure so long as a privilege holder had utilized reasonable pre-production measures to avoid accidental disclosures and reasonable and prompt post-production measures to assert and preserve privilege.¹⁷¹ Further, the Advisory Committee’s note to Rule 502(b) endorsed cost-efficient technology-assisted review methodologies as reasonable.¹⁷² Importantly, Rule 502 prevents waiver in both federal and state proceedings.¹⁷³

Rules “502(a) and (b) represent the default waiver rules that apply to discovery disclosures when parties have not planned . . . for waiver issues during production of ESI.”¹⁷⁴ Rules 502(d) and (e) added “self-help” provisions tailor-made to give litigants ex ante control during discovery.¹⁷⁵ These provisions permit litigants to enter agreements to disclose privileged and protected information without a waiver and to request court orders providing waiver protection vis a vis third parties.¹⁷⁶ Such federal court orders are binding in all other federal and state proceedings.¹⁷⁷ Rule 502 is now referenced in the discovery provisions of the Federal Rules of Civil Procedure to aid litigants in navigating discovery of ESI.¹⁷⁸ Thus, evidence rulemaking was instrumental in revamping privilege doctrine to keep pace with technological advancement.

Other amendments have modernized the Federal Rules of Evidence to account for shifts in technology since their original enactment. As discussed above, the ancient documents hearsay exception was modified to exclude documents created after January 1, 1998.¹⁷⁹ This update, too, was designed to account for the proliferation of ESI.¹⁸⁰ Rule 902(13) and (14) were added for similar reasons.¹⁸¹ Rule 902(13) permits electronically generated records to be self-authenticating through a qualified person’s certification.¹⁸² Similarly, Rule 902(14) provides for the self-authentication of data copied from an electronic device or storage medium through certification of a qualified person.¹⁸³ Both provisions were designed to reduce the costs of authenticating ESI, hard drives, and computer files.¹⁸⁴ Finally, Rule 101(b)(6) was added to the “Definitions” applicable to the Federal Rules of Evidence during the 2011 restyling to specify that “a reference to any kind of written material or any other medium includes electronically stored information.”¹⁸⁵

To be sure, none of these amendments make for sexy sound bites in the academic arena. Making the world safe for e-discovery is unlikely to excite any save die-hard civil litigation warriors. So, it is easy to undervalue their significance. But these amendments have proved crucial to ensuring that the Federal Rules of Evidence keep pace with rapidly evolving technological advancement. And collaborating with Congress, as well as the Civil Rules Committee, to overhaul the longstanding common law of privilege waiver was no small feat. Dismissing these recent updates as inconsequential due to some perceived lack of surface appeal fails to take stock of the crucial policy objectives they serve.

3. Modernizing the Residual Exception to the Hearsay Rule

Professor Nunn makes much of the criticism of hearsay doctrine by Judge Richard Posner in 2014 and suggests that the rulemaking process has buried its head in the sand and ignored such important critiques.¹⁸⁶ But the Evidence Advisory Committee re-examined hearsay doctrine and the issues raised by Judge Posner in 2015, holding a symposium on potential reforms to the hearsay rules at which Judge Posner spoke.¹⁸⁷ Judge Posner and other panelists opined about the viability of eliminating the existing approach to hearsay evidence altogether, exploring the possibility of allowing discretionary admission of hearsay on a case-by-case basis.¹⁸⁸ After much study and exchange, including hearing from litigators who preferred predictability over individualized decisions of judges, rulemakers concluded that a purely discretionary approach to all hearsay would damage the predictability and uniformity essential to the Federal Rules of Evidence.¹⁸⁹ Still, they found many conflicts and controversies undermining the use of the residual exception to the hearsay rule—the only exception that provides for discretionary admissibility on a case-by-case basis.¹⁹⁰ The Evidence Advisory Committee thus targeted the residual exception for reform.¹⁹¹

The residual or “catchall” exception to the hearsay rule has long been the object of academic obloquy.¹⁹² The residual exception offers a trial judge discretion to admit “trustworthy” hearsay statements that are otherwise inadmissible under the categorical exceptions to the hearsay rule.¹⁹³ The drafters of the original Rules determined that enumerated hearsay exceptions with retained flexibility under a residual exception would best address the concerns over admitting uncross-examined hearsay statements.¹⁹⁴

But the residual exception has long suffered from Goldilocks syndrome. According to the commentary, it has been used too frequently and liberally—admitting hearsay that should be kept out of the trial process.¹⁹⁵ Or it is too restrictive, closing the door to important and reliable hearsay evidence with admonitions that it should be utilized only sparingly.¹⁹⁶ And the exception was characterized by confusion and conflict in the federal courts. Some judges declined to apply the exception where they could not find guarantees of trustworthiness for a hearsay statement “equivalent” to the multifarious guarantees found in the categorical exceptions.¹⁹⁷ Others were stymied in applying the exception by the “near miss” doctrine, which could be manipulated to support or undercut the admissibility of hearsay statements that nearly missed satisfying the requirements of a categorical hearsay exception.¹⁹⁸ Others grappled with the relevance of independent evidence corroborating the accuracy of a hearsay statement proffered under the exception.¹⁹⁹

The rulemaking process tackled the longstanding dissatisfaction with the residual exception and overhauled Rule 807 in several significant ways in 2019. First, the amendment scuttled the antiquated “‘equivalent’ . . . guarantees of trustworthiness” language that had caused so much difficulty for courts and directed trial judges simply to find “sufficient guarantees of trustworthiness.”²⁰⁰ In addition, the amendment eliminated hand-wringing over statements that “nearly miss” satisfying the requirements of categorical hearsay exceptions by providing that Rule 807 does not bar statements that fail to satisfy certain requirements of the hearsay exceptions in Rules 803 or 804.²⁰¹ The amendment also ended conflict over consideration of corroborating evidence, providing that the trial judge should consider “the totality of circumstances” under which a statement was made “and evidence, if any, corroborating the statement.”²⁰²

The rulemaking process also addressed seemingly superfluous limitations added to the residual exception by Congress when the Rules were enacted that undermined its utility. Initially, Congress required that hearsay statements admitted through the residual exception provide evidence “of a material fact” and serve “the interests of justice.”²⁰³ These requirements offered no workable standard for judging residual hearsay, and the ominous litany of limitations on the exception caused reluctance to utilize it.²⁰⁴ The 2019 amendment eliminated these longstanding, meaningless barriers to the admissibility of residual hearsay and created a stream-lined, user-friendly provision.²⁰⁵ Mindful of congressional rulemaking authority and concerns about overreliance on the residual exception, rulemakers retained the congressionally added requirement that residual hearsay be “more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.”²⁰⁶ Finally, the 2019 amendment overhauled the antiquated notice requirement.²⁰⁷

Admittedly, rulemakers ultimately declined to radically alter the well-accepted adversarial paradigm, such as by eliminating any prohibition on hearsay or by allowing discretionary admissibility of all hearsay evidence. But they acknowledged and studied broad critiques of hearsay doctrine, ultimately identifying serious impediments to the effective operation of the only purely discretionary exception. Rather than shying away from change, rulemakers reconstructed a time-honored provision. The result was a straightforward and accessible residual exception designed for the twenty-first century.

C. Safeguarding the Rights of Criminal Defendants

Contrary to Professor Nunn’s incendiary claim that the rulemaking process has ignored the role that the evidence rules may have played in the spate of wrongful convictions revealed by the Innocence Project and others, numerous proposals to amend the Federal Rules of Evidence have sought to advance the just treatment of criminal defendants. An educated and thoughtful analysis of the amendments adopted since the Advisory Committee’s reconstitution refutes any claim that the rulemaking process has turned a blind eye to these important interests.

1. Forensic Feature-Comparison Testimony and Expert Overstatement

In the last two decades, many amendments to the Federal Rules of Evidence have been driven by the fair treatment of criminal defendants. Indeed, a recent amendment to Rule 702 that governs the admissibility of expert opinion testimony originated largely out of concern over the admission of expert forensic opinion evidence in criminal cases.²⁰⁸ A 2016 report by the President’s Advisory Committee on Science and Technology (“PCAST Report”) revealed that many forensic disciplines routinely utilized in criminal prosecutions lack the underlying testing and data to be characterized as “science.”²⁰⁹ The PCAST Report thus recommended additional validation of long-accepted forms of forensic feature comparison, such as fingerprint examination, to support their admission against criminal defendants.²¹⁰

Following the PCAST Report, the Evidence Advisory Committee undertook a comprehensive, years-long study of expert forensic opinion evidence in criminal cases.²¹¹ The Committee’s study of Rule 702 focused on its potential to allow dangerous and unsupportable forensic evidence in criminal cases—examining the admission of the very bite mark and toolmark experts that have caused concerns in cases of wrongful conviction.²¹² The Committee held a symposium, inviting scientists (including the co-chair of the PCAST report) to provide insight on the reliability problems presented by forensic evidence.²¹³ Although the Committee found that properly supported forensic feature comparison testimony could be admitted through Rule 702 based upon technical or specialized knowledge (even if it could not, as PCAST noted, be characterized as “science”), it found a troubling pattern of overstatement by forensic experts in criminal cases.²¹⁴ Fingerprint and ballistics experts testified that a fingerprint or a weapon was a “match” for those of the defendant, or that the error rate of their techniques was “zero,” even though the methodology they employ cannot support such conclusions.²¹⁵

Due to the demonstrated risk of wrongful conviction from overstatement of results by forensic experts, the Advisory Committee explored numerous possible amendments to curtail this dangerous practice. It considered a new evidence rule specifically targeting “forensic” evidence but discarded that option due to the difficulty in defining and isolating the evidence to which it would apply.²¹⁶ Ultimately, the Advisory Committee proposed an amendment to Rule 702, effective December 1, 2023, which limits “overstatement” by testifying experts.²¹⁷ This amendment directs trial judges to examine an expert’s opinions offered on the stand to ensure that the expert’s methodology supports the degree of confidence expressed.²¹⁸ Although it serves to limit the “overstatement” of all expert testimony, the Advisory Committee note emphasizes that the amendment has special application to forensic feature comparison experts, cautioning judges to disallow promises of a “match,” a “zero error rate,” or a “reasonable degree of scientific certainty” and stating that rates of error in forensic methodologies should be disclosed to the jury.²¹⁹ This amendment seeks to ensure that criminal defendants are not railroaded by overzealous and unsupported forensic expert testimony. The proposed amendment was supported by a lengthy statement of the Innocence Project, which emphasized “the importance of amending Federal Rule of Evidence 702 to bring . . . scientific integrity to proceedings in which life and liberty are at stake” and stated that “because indigent people and people of color are disproportionately prosecuted in criminal courts, we also consider the proposed amendment to Rule 702 to be a critical economic and racial justice issue.”²²⁰

The rulemaking process carries benefits beyond changes to governing rule language as well. The PCAST Report and the Evidence Advisory Committee’s push to root out problematic forensic expert testimony brought sunlight to the issue of unsupported forensic testimony in criminal cases. It forced the Department of Justice to take a hard look at its use of forensic feature comparison testimony. Several years of dialogue and debate between the Department of Justice and the Evidence Advisory Committee during the rulemaking process resulted in new and improved studies of feature comparison methods, which both validated their use and exposed their limits.²²¹ The Department of Justice created testimonial guidelines for forensic experts that prohibit promises of a “zero error rate” or a “match.”²²² In addition to proposing a rule change and including an Advisory Committee note to address problematic forensic expert opinion testimony in criminal cases, the rulemaking process facilitated operational changes within the Department of Justice, which improved the quality of forensic testimony offered against criminal defendants throughout the federal system.²²³

2. The Rule of Completeness and a Fair Presentation of Statements Made by Criminal Defendants

The recent amendment to the rule of completeness found in Rule 106, which allows completing statements to be admitted over a hearsay objection, might appear at first glance to be unrelated to the rights of criminal defendants.²²⁴ But this significant change to the completeness rule remedies unfairness to criminal defendants in its most common application.²²⁵

Rule 106 provides that if one party admits a part of a statement in a manner that distorts its meaning, the opponent has a right to “complete” the presentation by admitting the remainder of the statement.²²⁶ Prosecutors routinely admit confessions and statements by criminal defendants at trial and scholars have posited that the admission of these confessions can lead to wrongful conviction under certain circumstances.²²⁷ The right to complete offers defendants an important check on misleading presentation of those statements.

Following the adoption of the original Federal Rules of Evidence, a circuit split arose with respect to the operation of Rule 106.²²⁸ Some circuits held that the Rule permitted completion even if the remainder of the statement would ordinarily be excluded by the hearsay rule.²²⁹ In these circuits, a right to complete trumped any hearsay objection to the completing statement.²³⁰ Other circuits, however, held that Rule 106 was simply a timing provision that allowed the opponent to admit an independently admissible statement earlier than she otherwise might.²³¹ Under the latter view, an opponent’s effort to complete could be defeated by a hearsay objection when the completing statement failed to fit within a hearsay exception.²³²

Before the recent amendment, interpreting Rule 106 as a timing provision most often undermined the ability of criminal defendants to correct a misimpression created by the prosecution’s partial presentation of the defendant’s own statements. For example, assume that a criminal defendant was questioned by authorities about a firearm used in a murder.²³³ In this interrogation, the defendant readily admitted: “Yes, that was my gun, but I sold it at a swap meet a month ago.” This defendant is ultimately tried for the murder and during its case-in-chief, the prosecution admits evidence that the defendant told authorities “Yes, that was my gun” but fails to include the qualifying portion in which the defendant denied owning the gun at the critical time. The prosecution can and commonly does admit a criminal defendant’s own statements against him at trial as a statement of a party opponent under Rule 801(d)(2)(A).²³⁴ Of course, this hearsay exception is a one-way street that permits a party’s own statements to be admitted against him but forbids a party from offering his own statement.²³⁵ In our hypothetical murder case, the prosecution presented the defendant’s partial statement in a manner that distorts the true meaning of his full statement. The partial presentation suggests that the defendant admitted owning the murder weapon at the pivotal time of the murder—when he did no such thing. Under Rule 106, therefore, this criminal defendant is entitled to present the remainder of his statement that disavowed ownership at the critical time. But there is no hearsay exception that allows a defendant in this circumstance to offer his own out-of-court statement. In jurisdictions that view Rule 106 as a timing provision only, therefore, the prosecution may lodge a hearsay objection when the defendant seeks to exercise his right to complete, foreclosing admission of the remainder of his statement and allowing the jury to have the distorted impression that he made a damning admission about owning the murder weapon.²³⁶

After many years of research, discussion, and collaboration with the Department of Justice to overcome prosecutorial concerns about allowing completion to trump hearsay objections, the Advisory Committee proposed an amendment to Rule 106 allowing completion of a misleading partial statement even over a hearsay objection.²³⁷ No longer may a prosecutor carve up a criminal defendant’s statements to take them out of context and leave the defendant without remedy. As a result of this amendment, the defendant in our hypothetical will be able to prove that he told authorities that he had sold the gun in every federal jurisdiction. To the uninitiated, the Rule 106 amendment may appear to remedy only a somewhat esoteric circuit split. But its impact will largely be felt by criminal defendants, giving them the crucial ability to correct the record should federal prosecutors present their partial statements in a manner that distorts their true meaning.²³⁸

3. Impeachment of Testifying Criminal Defendants

Rule 609 permits the impeachment of testifying witnesses, including testifying criminal defendants, with evidence of past convictions.²³⁹ Professor Nunn takes aim at Rule 609 as a problematic feature of the Federal Rules of Evidence, as have many others.²⁴⁰ Although the application of the Rule in the federal courts is cause for concern, and though it has not been abolished, it has been amended through rulemaking to better protect the rights of the criminally accused.

Rule 609(a)(2) admits convictions for crimes of “dishonest act[s] or false statement[s]” against testifying witnesses, including testifying criminal defendants.²⁴¹ In contrast to Rule 609(a)(1) that admits felony convictions subject to a balancing test, Rule 609(a)(2) automatically admits all dishonesty convictions without any balancing discretion reserved for the trial judge.²⁴² Following enactment of the Federal Rules, courts broadly construed the category of “dishonesty” convictions to include crimes like robbery and murder, which do not require an element of dishonesty.²⁴³ Broadly construing this category allowed for the automatic admission of a wide variety of criminal convictions without any weighing of prejudicial impact.²⁴⁴

To ensure that Rule 609(a)(2) was not used as a back door to automatically admit a whole host of convictions for crimes that trial judges considered to be “dishonest,” the Evidence Advisory Committee proposed an amendment to restrict the meaning of “dishonesty.”²⁴⁵ In 2006, Rule 609(a)(2) was amended such that it may be utilized only to automatically admit convictions for crimes with an element requiring proof of a false statement or dishonest act.²⁴⁶ This limits the impeachment provision to true crimen falsi like perjury, forgery, and false statements.²⁴⁷ This amendment thus drastically narrowed the universe of convictions available for automatic admission against testifying criminal defendants.²⁴⁸

4. Declarations Against Interest and Corroborating Circumstances

Rule 804(b)(3), the hearsay exception for statements against interest, requires criminal defendants to show corroborating circumstances clearly indicating the trustworthiness of any third-party statements that help to exculpate them.²⁴⁹ But the original provision did not require the prosecution to provide any additional support when it used the exception to admit evidence against a criminal defendant.²⁵⁰ Thus, the original version of Rule 804(b)(3) placed a heavier burden on criminal defendants seeking to use the declarations against interest hearsay exception to provide exculpatory evidence than it did on prosecutors seeking to use the exception to incriminate.

As prosecutorial use of third-party statements incriminating the defendant grew, so did dissatisfaction with the inequitable state of affairs created by this misguided and one-sided protection in favor of the prosecution.²⁵¹ Recognizing the fundamental unfairness of placing a disproportionate burden on a criminal defendant, the Evidence Advisory Committee successfully proposed an amendment to Rule 804(b)(3) to level the playing field.²⁵² Since 2010, Rule 804(b)(3) has required the prosecution and defense alike to show corroborating circumstances supporting the trustworthiness of declarations against interest.²⁵³

5. Evidence of a Criminal Defendant’s Other “Crimes, Wrongs, or Acts”

Professor Nunn also calls out Rule 404(b) as a problematic provision in criminal cases that could be rescued by “Living Evidence” theory.²⁵⁴ He asserts that “[t]here has been no effort—nor even a suggestion—to fundamentally reshape important aspects of evidence law [such as this one] to account for modern understandings.”²⁵⁵ In 2016, however, the Evidence Advisory Committee launched a study of Rule 404(b), which allows other crimes, wrongs, or acts to be admitted for non-character purposes, such as proving “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”²⁵⁶ Because our system of justice seeks to determine innocence or guilt based upon a person’s conduct and not his character, evidence of a defendant’s prior acts should not be used to demonstrate his propensity to behave in certain ways.²⁵⁷ The precise concern that Rule 404(b) was being applied too expansively to admit the past wrongs of criminal defendants prompted the Advisory Committee to launch a detailed study of the provision and to explore amendments designed to ensure the fairness of the provision in the criminal context.²⁵⁸

The Advisory Committee entertained numerous proposals that would have altered the admissibility standards for Rule 404(b) in criminal cases.²⁵⁹ At the heart of the problem was a failure to require the prosecution to show precisely how a particular prior bad act of a criminal defendant showed intent or knowledge, for example, without relying upon an inference about the defendant’s propensity to behave in certain ways.²⁶⁰ Federal courts allowed prosecutors to rattle off the list of proper purposes found in Rule 404(b) without requiring them to demonstrate how a defendant’s act proved a specific proper purpose (such as knowledge) and not simply the defendant’s character.²⁶¹

Following study and debate, the notice provision of Rule 404(b) was amended in 2021 to require the prosecution in a criminal case to articulate in its pretrial notice precisely how the defendant’s bad act may be used for a proper purpose, such as to show knowledge, without depending upon an inference about the defendant’s propensity to behave in certain ways.²⁶² It forbids admission of a prior bad act for any purpose not identified in pre-trial notice (except for good cause).²⁶³ Criminal defendants thus get more precise information that they may use to challenge admissibility. Trial judges get a clearer picture of the prosecution’s Rule 404(b) purpose that may justify preliminary exclusion of bad acts. Even if their prior acts are admitted, defendants will benefit from a clearer picture of the evidence that they will face to mount opposition.²⁶⁴ It is true that more drastic proposals to alter Rule 404(b) failed in Committee after discussion and study.²⁶⁵ But the amended notice provision ultimately enacted offers more significant protection for criminal defendants than Professor Nunn acknowledges, and the Advisory Committee’s diligent study of many amendment alternatives demonstrates that there have been “effort[s]” and “suggestion[s]” to reconsider and alter bedrock provisions.²⁶⁶ Again, this more muscular notice provision was principally motivated by concern over injustice to criminal defendants caused by improper admission of their prior bad acts.²⁶⁷

In sum, much of the focus of rulemaking efforts since the Evidence Advisory Committee’s reconstitution in the mid-1990s has been on ensuring fair treatment of the criminally accused. To be sure, the rulemaking process has not yielded every reform benefitting criminal defendants that some advocates may include on their wish lists. But the rulemaking process has produced numerous amendments to the Federal Rules of Evidence designed to secure fair criminal trials and accurate outcomes.

D. The Federal Rules of Evidence and the #MeToo Movement

Although he declines to offer specifics, Professor Nunn also accuses the rulemaking process of neglecting the interests of victims brought to light by the #MeToo movement.²⁶⁸ This charge is particularly perplexing considering the many amendments designed to protect sexual assault victims.

In this arena, Congress has been jealous of its constitutional prerogative and has directly enacted provisions for the protection of victims.²⁶⁹ The Evidence Advisory Committee has marshaled the rulemaking process to expand upon and improve these congressionally enacted provisions supporting victims of sexual misconduct.²⁷⁰ These provisions were ahead of their time, predating the #MeToo movement by decades.²⁷¹ Ironically, some of the provisions directly enacted by Congress to serve the very interests advanced by the #MeToo movement were met with significant headwinds and academic criticism.²⁷²

First, Congress directly enacted Rule 412, known as the “rape-shield statute,” in the late 1970s shortly after the enactment of the Federal Rules of Evidence.²⁷³ All are sadly familiar with the sexist common law tradition that permitted victims of sexual violence to be discredited and shamed by evidence of their own sexual history or by demeaning characterizations of their behavior or dress.²⁷⁴ Rule 412 protects sexual assault victims by prohibiting evidence of their previous sexual acts or alleged sexual demeanor or predisposition.²⁷⁵ Congressional support for the protection was animated by “feminist concern for the fate of the victim in a male-dominated legal system and conservative ‘law-and-order’ arguments that the existing system permitted criminals to escape by discouraging their victims from reporting the crime.”²⁷⁶

In 1995, the Evidence Advisory Committee spearheaded an amendment to Rule 412 to clarify and “expand the protection afforded to victims of sexual misconduct.”²⁷⁷ The amendment extended the protections of Rule 412 to civil cases and to all criminal cases involving sexual misconduct, whether or not they are charged as cases of sexual assault.²⁷⁸ In addition, the amendment created specific procedures to further protect victims, requiring a pre-trial motion in limine and an in camera hearing offering a victim the right to be heard even in cases where he or she is not a party.²⁷⁹ The Advisory Committee’s Note to the 1995 amendments to Rule 412 explained their purpose:

The rule aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process. By affording victims protection in most instances, the rule also encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders.²⁸⁰

Congress acted again to combat sexual violence in the mid-1990s, directly enacting controversial Rules 413, 414, and 415.²⁸¹ As described above, the prosecution has long been prohibited from using an accused’s prior bad acts as circumstantial proof of his behavior on the charged occasion under Rule 404(b).²⁸² This prohibits a prosecutor from arguing that a defendant is likely guilty because he did something similar in the past. Rules 413–415 reverse this longstanding prohibition in the arena of sexual assault and child molestation cases.²⁸³ In such cases, the Rules expressly permit proof that the defendant committed “any other” sexual assault or act of child molestation to show the defendant’s propensity to commit such offenses.²⁸⁴ Congress explained its rationale for reversing the traditional character ban in sexual assault cases as follows:

[A]dult sexual assault cases are distinctive, and often turn on difficult credibility determinations. Alleged consent by the victim is rarely an issue in prosecutions for other violent crimes—the accused mugger does not claim that the victim freely handed over his wallet as a gift—but the defendant in a rape case often contends that the victim engaged in consensual sex and then falsely accused him. Knowledge that the defendant has committed rapes on other occasions is frequently critical in assessing the relative plausibility of these claims and accurately deciding cases that would otherwise become unresolvable swearing matches.²⁸⁵

Thus, Rules 413–415 were designed to prevent repeat sex offenders from hiding a pattern of sexual violence and from picking off victims one at a time with claims of consent and deceit. These congressionally enacted provisions were met with intense criticism.²⁸⁶ The academic vitriol for the Rule 413–415 package was overwhelming.²⁸⁷ Rulemakers opposed the provisions out of concern for a criminal defendant’s right to be protected from prejudicial character evidence.²⁸⁸ Congress ignored these objections; the provisions have been embodied in the Federal Rules of Evidence since 1995.²⁸⁹

Although its origins date back to the early 2000s, the #MeToo movement gained traction in 2017 after “sexual-abuse accusations against film mogul Harvey Weinstein triggered a tsunami of harassment and abuse allegations leveled at men from every corner of American society.”²⁹⁰ The movement can be defined as “a social movement originating among women, advocating for survivors of sexual harassment or violence to speak out about their experiences in order to expose and combat various forms of sexual misconduct.”²⁹¹ Thus, the #MeToo movement aims to encourage victims to speak publicly about sexual violence and to expose serial predators, like Weinstein, by revealing their continuing patterns of abusive conduct. Rules 412–415 are designed to advance these very interests and goals. By protecting victims who report sexual assault from an invasive and traumatizing campaign to question their own sexual behavior, Rule 412 encourages victims to come forward and protects those who speak openly about their experiences from punishing consequences. Love them or hate them, Rules 413–415 are drafted to prevent a Weinstein-esque character from discrediting his victims one at a time, because they allow past targets of similar abuse to echo and validate the victim’s experience. Given these protections in the Federal Rules of Evidence, which specifically target sexual assault cases, it is hard to see how the Rules have ignored the concerns of the #MeToo movement.

In sum, the Advisory Committee has completed a significant body of work in the last twenty-seven years. On the surface, it may be easy to simply reject all the advances as inadequate. But a deeper, more sophisticated examination of the many amendments to the Federal Rules of Evidence reveals consistent and tireless efforts to reform the Rules. Importantly, many of the enacted amendments were prompted by concerns about the rights of criminal defendants and sexual assault victims.

E. Roads Not Taken: Inaction Doesn’t Equal Failure

Notwithstanding the significant number of meaningful amendments to the Federal Rules of Evidence in the twenty-seven years since the reconstitution of the Advisory Committee, Professor Nunn makes sweeping accusations that transformative, paradigm-shifting change has been absent from the rulemaking process. For example, the hearsay doctrine remains intact despite claims that jurors may be more discerning with respect to out-of-court statements than previously believed.²⁹² Rule 609 permits the impeachment of testifying criminal defendants with past felony convictions.²⁹³ “Living Evidence” theory claims that the failure to alter these bedrock principles reveals the inadequacy of the rulemaking process and that “[m]issing is continual, persistent self-reflection as to whether our current regime is best serving the normative ideals.”²⁹⁴ But the Evidence Advisory Committee has continued to monitor, study, and question all aspects of the Rules, including the hearsay doctrine and Rule 609.²⁹⁵ The fact that drastic changes have not been proposed in these areas does not equate to a failure of progress.

First, Professor Nunn argues that revolutionary changes to the adjudicative process in the centuries prior to the enactment of the Federal Rules drove paradigm-shifting change to evidentiary standards.²⁹⁶ However, there has been no similar drastic alteration to the method of adjudication as it existed in 1975 when the Federal Rules of Evidence were enacted. The federal and state courts utilize essentially the same trial process protected by the same fundamental rights, which was the basis for the adoption of the original Rules. As illustrated above, many important amendments to the Federal Rules of Evidence have been passed since their original enactment. The Rules have been updated to account for modern technological and cultural shifts. But it is not surprising that the last fifty years have not seen the paradigm-shifting changes to evidence rules that characterized the eighteenth and nineteenth centuries. Where our method of adjudication remains stable, it is to be expected that the flexible, discretion-packed Federal Rules of Evidence will similarly enjoy relative stability.

Second, the rulemaking process has continued to examine the need for revision of even bedrock provisions. So long as the rulemaking process demonstrates willingness to reconsider longstanding provisions to ensure their continued contemporary viability, a decision to forego an amendment does not signal a failure of the rulemaking process. As noted above, the Evidence Advisory Committee undertook a comprehensive study of the hearsay doctrine in 2015.²⁹⁷ It examined Judge Posner’s critique of the present sense impression and excited utterance exceptions echoed in “Living Evidence,” as well as his proposed remedy to allow trial judges discretion to admit reliable hearsay.²⁹⁸ In 2018, the Committee also reviewed the admissibility of testifying witnesses’ hearsay statements with an eye toward greater admissibility.²⁹⁹ The Committee examined substantive alterations to Rule 404(b) to further limit the admissibility of a criminal defendant’s prior crimes.³⁰⁰ And in 2017, the Committee performed a detailed study of the application of Rule 609 and even considered a proposal to abrogate felony impeachment of testifying criminal defendants.³⁰¹ Thus, the rulemaking process has not ignored these fundamental features of the Rules, and instead has engaged in precisely the “systematic introspection” for which Professor Nunn calls.³⁰² The fact that the rulemaking process has not yielded the “broad structural changes” that Professor Nunn seeks is not an indicator of failure.³⁰³

For example, as noted above, the Evidence Advisory Committee studied the application of Rule 609 in 2017 and considered a proposal to eliminate felony impeachment of criminal defendants.³⁰⁴ Modern research clearly demonstrates the very significant prejudice that flows from broad felony impeachment of testifying criminal defendants under Rule 609.³⁰⁵ The “silence penalty” takes a well-documented toll in preventing defendants from testifying in their own defense.³⁰⁶ When faced with the prospect of felony conviction impeachment, criminal defendants largely exercise their constitutional right not to testify.³⁰⁷ Further, it is now recognized that jurors frequently misuse felony impeachment evidence.³⁰⁸ Although they are instructed to utilize a felony conviction admitted under Rule 609 only for its bearing on the credibility of the defendant’s trial testimony, jurors cannot help but use certain prior convictions, particularly those that bear a close resemblance to the charged crime, to engage in a propensity line of reasoning. Expecting jurors to build a mental wall between the appropriate and improper uses of a conviction under these circumstances presumes unrealistic cognitive discipline. For these reasons, the Evidence Advisory Committee re-examined the provision. The Advisory Committee ultimately declined to alter Rule 609(a) for two principal reasons: (1) a determination that the existing rule text appropriately disfavors felony impeachment of criminal defendants, and (2) a concern about disturbing the hard-fought congressional compromise that resulted in Rule 609(a).³⁰⁹

Notwithstanding the well-documented concerns regarding felony impeachment of the criminally accused, the Advisory Committee’s decision to refrain from amending Rule 609 does not demonstrate a failure of the rulemaking process. First, the existing language of Rule 609(a)(1) puts a thumb on the scale in favor of the exclusion of felony convictions.³¹⁰ When offered to impeach a testifying criminal defendant, a felony conviction may be admitted only if its probative value in discrediting the defendant’s trial testimony outweighs any prejudice to the defendant.³¹¹ This balancing test thus signals to trial judges that the impeaching value of a felony conviction must eclipse prejudicial impact to the testifying defendant.

This analysis is not to defend Rule 609(a)(1) felony impeachment per se or to deny the significant dangers it presents in application. Indeed, the federal reporters are littered with troubling opinions upholding the admission of impeaching felony convictions that possess little legitimate probative value and that present serious risks of unfair propensity prejudice for criminal defendants.³¹² But the language of the Rule may not be the source of the problem and an amendment may not be the solution. The text of Rule 609(a)(1) already offers trial judges the tools necessary to exclude problematic impeaching felonies in light of recent, loudly voiced concerns about felony impeachment of criminal defendants. A significant source of the problem regarding felony impeachment of criminal defendants stems from trial judges failing to adhere to the protective balancing test offered by Rule 609(a)(1).³¹³ Effective rulemaking to force wayward jurists to adhere to an existing provision is challenging to say the least. The Evidence Advisory Committee could have proposed an amendment enshrining the precise factors that must be considered in evaluating the admission of a felony conviction for impeachment purposes in the text of Rule 609(a)(1). Such an alternative would have added lengthy text more commonly found in the Advisory Committee’s notes to rule text and would be at odds with the concise provisions characteristic of the Federal Rules of Evidence. Furthermore, it is far from clear that a textual recitation of factors would reverse the troubling application of this provision by some courts. In essence, the problem with Rule 609(a)(1) is the very constituency that Professor Nunn places in the vanguard of fairness-based evidence development—federal judges.

Abolition of Rule 609(a)(1), at least as applicable to criminal defendants, was also an amendment alternative the Committee explored.³¹⁴ This is undoubtedly the type of structural reform Professor Nunn seeks. While abolition is certainly a plausible option, the Advisory Committee’s previous unwillingness to travel this route is not an indictment of the rulemaking process. The Federal Rules of Evidence are purposely designed to be flexible to achieve accurate outcomes through the admission of all relevant evidence.³¹⁵ Abolishing Rule 609(a) would reflect a judgment that felony impeachment is per se inappropriate regardless of the factual context. This would create a calcified standard and foreclose any case-by-case analysis of the propriety of felony conviction impeachment. Professor Nunn opines that it is “offensive” to suggest that a criminal history automatically makes a witness untrustworthy.³¹⁶ That is certainly true. But it may also be unrealistic to suggest that criminal history never reflects on the credibility of a testifying witness. The Evidence Advisory Committee could rationally conclude that the existing provision, with its reverse balancing test, is more consistent with the flexibility of the Rules as a whole and that hard and fast proscriptions that foreclose contextual judicial application are to be avoided. Finally, concerns about felony conviction impeachment of criminal defendants are not new; they played a significant role during the original debates over the enactment of the Federal Rules of Evidence.³¹⁷ Therefore, it is also rational—and not a sign of stagnation—for the Evidence Advisory Committee to be circumspect in substituting its judgment for that of Congress on a point directly considered and debated based upon identical concerns.

As demonstrated by the foregoing, news of the death of the Federal Rules of Evidence has been greatly exaggerated. A nuanced examination of the history of the Rules and of the rulemaking process reveals a strong heartbeat indeed. Following its reconstitution in the mid-1990s, the Evidence Advisory Committee has successfully shepherded the adoption of forty amendments to the Federal Rules of Evidence. That is an average of more than one amendment every year. And this total does not reflect the multi-year project to restyle the entire set of rules completed in 2011. Many amendments have significantly improved bedrock provisions, such as Rule 702, which governs the admissibility of expert opinion testimony. And rulemaking has maintained a steady focus on the rights of criminal defendants and sexual assault victims. The Evidence Advisory Committee has not shied away from exploring the possibility of altering foundational provisions; it has re-examined the hearsay rules, the admission of other crimes, wrongs, and acts, and even the impeachment of testifying criminal defendants with prior felony convictions. In sum, evidence rulemaking is healthy and thriving, with five more amendments scheduled to take effect in 2024.³¹⁸ Thus, Professor Nunn’s first premise upon which his “Living Evidence” theory depends—that rulemaking is broken—is belied by a knowledgeable examination of rulemaking achievements over the past three decades.

III. “Living Evidence” Deconstructed

Based upon the faulty premise that the Federal Rules of Evidence are “dead,” Professor Nunn proposes “Living Evidence” interpretive theory to resuscitate them.³¹⁹ This theory calls upon federal judges to interpret the Rules with an eye toward the well-recognized values of “fidelity” to rule text and the “justifiability” of evidentiary outcomes.³²⁰ When “fidelity” to rule text remains primary in judicial rule interpretation and “justifiability” is cabined by the policies informing the duly enacted provisions, a focus on these two values is entirely appropriate. Indeed, the federal judiciary plays a crucial role in interpreting the Federal Rules of Evidence to fill gaps and resolve ambiguities. But “Living Evidence” urges the federal judiciary to take the reins of reform and to elevate individualized assessments of normative justifiability over fidelity to the text of the duly enacted Rules. Federal judges are to draw on modern cultural norms and empirical realities to derive normatively justifiable solutions to admissibility questions. Professor Nunn posits that the rulemaking process can serve an important regulatory function on the back end of judicial experimentation, blessing the advances it deems appropriate and rejecting those it finds improper. Upon close examination, however, “Living Evidence” theory suffers from serious constitutional and analytical defects that render it a dangerous and unworkable approach to evidentiary reform.

A. The Federal Courts’ Prerogative to Interpret the Federal Rules of Evidence

The federal courts play a unique and critical role in applying and interpreting the Federal Rules of Evidence. It is necessary and completely appropriate for the federal courts to place their stamp on the Rules in a manner that remains faithful to the text.

Many evidence rules expressly reserve broad discretion for judges to decide the most appropriate course. While the Rules offer a predictable and uniform set of principles, they also give trial judges significant discretion to make admissibility decisions based upon unique factual contexts. Rule 403 is the quintessential example. It recognizes that some evidence simply is not worth the risks that it injects into the trial process, but leaves it to the trial judge to determine whether the probative value of a particular item of evidence is substantially outweighed by the danger of unfair prejudice.³²¹ Indeed, the Federal Rules of Evidence are littered with discretion, and numerous provisions contain balancing tests and exceptions that permit trial judges to choose appropriate outcomes in a particular factual context completely within the confines of the Rules.³²² Professor Nunn makes much of the “positivist movement” that swept the evidence rules into existence and of the emphasis on plain language interpretation of the Rules.³²³ But the broad discretionary standards in the evidence rules purposely leave ample room for trial judges to make admissibility decisions on a case-by-case basis—unlike other codes that are characterized by rigid provisions that dictate outcomes ex ante. Thus, federal trial judges enjoy significant flexibility in applying the Federal Rules of Evidence faithfully, as written.

Even Rules that do not set a discretionary standard may contain gaps or interpretive ambiguities. The federal courts play a vital role in identifying and clarifying such ambiguities and in filling gaps. The Supreme Court has provided critical insight into the proper operation of evidence rules on several occasions. In Williamson v. United States,³²⁴ the question arose whether all hearsay statements admitted through the declarations against interest hearsay exception found in Rule 804(b)(3) must be against the speaker’s interest, or whether “collateral” statements that are part of the same narrative but that are not, themselves, contrary to the speaker’s interest may also be admitted.³²⁵ The text of Rule 804(b)(3) does not speak to this precise issue.³²⁶ In determining a normatively justifiable answer to this ambiguity, the Court drew upon the well-recognized rationale for the exception—that against-interest statements are reliable because a speaker is unlikely to make a statement that damages her own interest unless true.³²⁷ Because collateral statements, which are not themselves contrary to the speaker’s interest, do not enjoy the same guarantee of reliability, the Court concluded that they may not be admitted through the exception.³²⁸ Although the text of Rule 804(b)(3) remains unchanged, it is now clear that every hearsay statement admitted through it must be against the speaker’s interest. The Court made similar interpretations that altered the Rules’ application in Tome v. United States,³²⁹ Bourjaily v. United States,³³⁰ and Daubert v. Merrell Dow Pharmaceuticals, Inc.³³¹ The courts of appeals similarly have offered important interpretations of the Rules to guide trial courts and litigants in their application.³³²

To be sure, these decisions marry considerations of fidelity to rule text with the justifiability of a given construction. Where rule text fails to answer a question or resolve an ambiguity, federal courts must divine the most appropriate construction and outcome. Importantly, however, the justifiability of a particular interpretation is not a wide-open inquiry that questions whether the rule at issue should exist at all based upon a judge’s personal finding that it no longer accords with modern normative realities. Considerations of justifiability are cabined by a particular provision’s underlying purpose, as articulated in legislative or Advisory Committee notes, rather than by normative justifiability writ large or an individual trial judge’s sense of appropriate outcomes.

In sum, the federal courts play a critical role in ensuring the health and vitality of the Federal Rules of Evidence. To fulfill this role, they must exercise discretion, resolve ambiguities, and fill gaps. Such judicial amplification of the Rules is wholly appropriate and, indeed, necessary. In performing this function, however, the federal courts are first and foremost faithful to the text of the Federal Rules of Evidence, looking to the history and policies behind particular provisions to derive justifiable interpretations. The call to action for the federal courts embodied in “Living Evidence” theory extends dangerously beyond this proper role of the federal judiciary.

B. Separation of Powers and the Clash Between Fidelity and Justifiability

“Living Evidence” encourages federal judges to make admissibility determinations under the Rules with two aims in mind: (1) fidelity to rule text and purpose, and (2) normative justifiability in light of empirical evidence, modern reality, and cultural understanding.³³³ It proposes no hierarchy between the two values, however, suggesting that trial judges take a blended approach that incorporates both.³³⁴ This model functions well when the text and purpose of a rule can be interpreted consistently with modern understandings of appropriate outcomes. Where it works, however, “Living Rules” theory is nothing new or ground-breaking, but instead is the approach already adopted by the federal judiciary in interpreting the evidence rules described above.

But a “Living Rules” philosophy becomes dangerous and unworkable in the only context in which it is novel—where fidelity to the text and purpose of a rule must be sacrificed to achieve perceived justifiability or modern normative validity. Congress enjoys the constitutional authority to create rules of practice and procedure for the federal courts, a power that it has exercised directly and guarded jealously in the context of the Federal Rules of Evidence.³³⁵ As outlined above, federal rulemaking occurs only through an express delegation of Congress’s constitutional powers in the Rules Enabling Act.³³⁶ And the Federal Rules of Evidence take effect only if Congress fails to exercise its veto power during the rulemaking process.³³⁷ Federal judges, therefore, lack the authority to disregard, rewrite, or reject duly enacted Federal Rules of Evidence. Professor Nunn agrees that “it makes sense for judges to defer to those rulemakers in their appointed roles” if rulemakers are “proactive” and align evidence law with our “best normative and empirical understandings of the world around us.”³³⁸ But “Living Evidence” claims that “the game has changed” in a way that merits migration away from textual fidelity to the Rules and urges federal judges to depart from the Rules in circumstances where they find them anachronistic, obsolete, or simply incorrect.³³⁹ Encouraging the federal judiciary to go rogue and to reform the Federal Rules of Evidence outside the rulemaking process poses a grave threat to the delicate separation of powers reflected in that process.

A prime example of a provision that permits a trial judge to pursue the normative justifiability Professor Nunn seeks, while remaining faithful to the text and purpose of a rule, can be found in Rule 609(a)(1). As explored above, this provision permits a prosecutor to admit a testifying criminal defendant’s prior felony conviction to impeach his trial testimony.³⁴⁰ The provision, however, offers a balancing test that is weighted in favor of exclusion.³⁴¹ A trial judge may faithfully take the modern understanding of felony conviction impeachment into consideration in conducting this balancing. A judge may first find the impeachment value of a particular felony conviction marginal where the accused comes to the stand as the most interested witness at any trial, already impeached for bias. A trial judge who finds that a defendant’s own testimony is crucial to his defense and who recognizes that the likely consequence of a decision to admit a prior felony conviction is the loss of that crucial testimony may faithfully weigh that prejudice. Similarly, a trial judge can add the likely improper propensity use of the felony conviction to the prejudice side of the equation. In this way, a trial judge may exclude the felony conviction in light of modern, mutually shared realities while faithfully applying the text of Rule 609(a)(1).

But “Living Rules” flounders when fidelity and justifiability are in direct conflict. This risk is illustrated by Rule 609(a)(2), which requires the court to admit crimes of dishonesty against any testifying witness, including a criminal defendant—leaving the trial judge without discretion to exclude qualifying convictions.³⁴² The philosophy behind the provision posits that crimes involving actual deceit are so probative of a witness’s dishonesty that the jury is entitled to have access to such information in evaluating the witness’s credibility.³⁴³ Importantly, Rule 609 was not solely the result of the traditional rulemaking process by which a rule takes effect due to congressional inaction. Congress debated Rule 609 extensively, modified its provisions affirmatively, and adopted the resulting provision.³⁴⁴ In all iterations of the rule, both houses of Congress agreed that dishonesty convictions should be automatically admissible for impeachment—even against criminal defendants.³⁴⁵

Suppose a case in which a defendant, who helps businesses secure health insurance for their employees, is prosecuted for allegedly defrauding insurance companies by intentionally misrepresenting the health status of the covered employees. The defendant seeks to testify in his own defense that he did not intentionally misrepresent employee health status and that his representations were consistent with his understanding of health status reporting obligations. Suppose this same defendant has a prior conviction for fraud that is to be admitted automatically under Rule 609(a)(2) if the defendant takes the stand. The trial judge recognizes that the defendant’s best defense is his own testimonial account of the transactions at issue, and that the defendant is likely to remain off the stand and forfeit that defense if the prior fraud conviction is introduced. Furthermore, the trial judge recognizes that jurors are likely unable to perform the mental gymnastics necessary to distinguish between an impeaching use of the prior fraud conviction and its propensity use to prove the defendant’s culpability in connection with the charged offense.

Fidelity to the language and purpose of Rule 609(a)(2) demands admission of the prior conviction. But the trial judge’s perception of normative justifiability may call for exclusion due to the recognized consequences of admitting the criminal defendant’s prior convictions. When fidelity and justifiability clash, how is a trial judge applying a “Living Rules” jurisprudential philosophy to respond? If she must admit the evidence, the jurisprudential approach is inadequate to the task of improving normative outcomes even in contexts where modern reality and empirical research reveal significant drawbacks to admissibility. For that reason, “Living Evidence” theory taken to its logical conclusion encourages the trial judge to exclude the conviction to serve enlightened modern empirical understandings regarding the impeachment of testifying criminal defendants.³⁴⁶

Excluding the fraud conviction under these circumstances, however, sacrifices fidelity to the Rules entirely. Such a sacrifice is not worth the price.³⁴⁷ A trial judge who disregards her obligation to apply and interpret the rules faithfully oversteps her constitutional prerogative and invades the province of Congress. This is all the more troubling with respect to a provision like Rule 609(a)(2), where Congress has directly exercised its constitutional power to draft the rules of practice and procedure. In the only contexts in which it might counsel an outcome impossible under current interpretive approaches, therefore, “Living Rules” jurisprudential philosophy threatens to undermine congressional authority over rulemaking.

This debate over the limits of judicial interpretation of the Federal Rules of Evidence is not new. Noted evidence scholar Professor Edward Imwinkelried has identified no fewer than five interpretive theories espoused for interpreting the Federal Rules of Evidence.³⁴⁸ He asserts that scholars have long minimized separation of powers concerns in urging more flexible interpretation of the Federal Rules of Evidence.³⁴⁹ Professor Nunn argues that scholars outside the evidence arena have also advocated for pragmatic and normatively justifiable interpretive approaches to statutory construction.³⁵⁰ Regardless of the optimal approach to statutory construction beyond the evidentiary arena, interpretation of the Federal Rules of Evidence must respect Congress’s inherent constitutional authority over federal rulemaking and its active exercise of that authority in the evidence sphere. Where Congress has researched, debated, modified, and written Federal Rules of Evidence, a disregard for the text of the Rules in favor of contemporary normative justifiability is simply improper. Indeed, the U.S. courts describe the Rules Enabling Act as “a treaty between Congress and the judiciary” that “represents a manifestation of the traditional doctrine of separation of powers.”³⁵¹ Professor Imwinkelried also opined that disregard for separation of powers is “at odds with the peculiar facts surrounding the creation of the Federal Rules of Evidence” and that “separation of powers considerations should be close to the surface of any approach to interpreting the Federal Rules.”³⁵²

C. Justifiability Is in the Eye of the Beholder

“Living Evidence” theory encourages federal judges to craft bold, new evidentiary standards based upon the normative “justifiability” of those standards. This theory presumes some defined and shared set of “justifiable” and empirically derived evidentiary standards. The justifiability that Professor Nunn seeks is not something that can be scientifically derived, however. There is no compendium of normatively appropriate choices for the evidence rules, and the Federal Rules of Evidence are not all capable of empirical derivation.³⁵³ Indeed, many rules reflect policy choices based upon competing interests and concerns.³⁵⁴

For example, Rule 404(b)(1), which prohibits the use of a person’s past crimes, wrongs, or acts to prove her conduct on a particular occasion, represents a significant policy choice.³⁵⁵ This important protection that prevents a prosecutor from parading a criminal defendant’s entire past before a jury is not based upon empirical evidence that a person’s past acts have no predictive value in determining likely future conduct. Rather, it reflects a determination that our adversarial system should judge a person based upon what she did on the occasion in dispute and should not convict her for “who” she is or for past debts already repaid.³⁵⁶ Suggesting that all Federal Rules of Evidence should be empirically derived misunderstands their nature and threatens important policy protections that may or may not prove empirically supportable.

Furthermore, a “justifiable” outcome that accords with modern cultural realities may mean very different things to individual federal judges. Personal inclinations about the most justifiable evidentiary standard are certain to vary from circuit to circuit—and even from courtroom to courtroom. Only the truly naïve could ignore the vast differences in visions of normative justifiability across our society. In a “Living Evidence” dystopia, individualized and polarized versions of evidentiary justifiability are certain to surface.

Even more troubling, “Living Evidence” theory could turn on itself and upend the crucial contemporary reforms it purports to embolden. For example, the theory is conceived to facilitate evidentiary reforms that will treat criminal defendants more fairly. It promises exciting improvements such as the elimination of the impeachment of criminal defendants with their criminal convictions that Rule 609 currently endorses. “Living Evidence” could achieve this if a federal judge simply declined to allow such impeachment even when supported by a proper application of Rule 609. But “Living Evidence” could similarly be used to undermine the rights of criminal defendants by a trial judge who views routine felony conviction impeachment as normatively justifiable. This judge would be empowered to admit such convictions to impeach a testifying criminal defendant even when their prejudicial impact undoubtedly exceeds any legitimate impeachment value. Indeed, the fact that federal judges currently admit felony convictions that should be excluded under the Rule 609(a)(1)(B) balancing test reveals the very real risk that judges could use “Living Evidence” construction to undermine the rights of the criminally accused. Permitting federal judges to elevate the justifiability of a particular provision over fidelity to the text of the rule opens a Pandora’s box that may be used in service of any variety of viewpoints. “Living Evidence” would create the potential for injustice against vulnerable groups as easily as it could afford ad hoc protections that favor them.

Given our undeniably polarized society, a “Living Evidence” approach that empowers federal judges to modify evidentiary standards to suit their perceptions of modern realities and contemporary norms can be expected to lead to varied approaches to the same rule and to different outcomes for similarly situated litigants. The chaos, complexity, and inconsistency of a purely common law approach to evidence led to the enactment of the Federal Rules of Evidence in the first place.³⁵⁷ A “back to the future” common law rebellion operating in the shadow of the Rules will result in the erosion of credibility for evidentiary standards and an increase in gamesmanship. Litigants, including federal prosecutors, can be expected to race to jurisdictions where they may benefit from the friendliest “living rules.”

Complex determinations regarding normatively justifiable evidentiary outcomes are best left to the rulemaking process with its many levels of input from all constituencies. Rather than enshrining the vision of justifiability of any one individual or interest group, the rulemaking process gathers information regarding the justifiability of various policy choices from all affected constituencies. The Department of Justice has an important voice on the Evidence Advisory Committee, ensuring that federal law enforcement perspectives are aired. So too does the Federal Defenders’ office, which advances the concerns of the criminally accused. Practitioners with significant trial experience on the civil side articulate the interests of the plaintiffs’ and defense bars. Finally, the Advisory Committee is populated by experienced judges at the trial and appellate levels in state and federal court who bring substantial expertise to bear in crafting fair and workable courtroom rules. After thoughtful vetting and deliberation by this carefully constructed group, amendment proposals are published for notice and comment. The Advisory Committee not only painstakingly peruses the many submitted public comments, it holds public hearings at which affected groups may testify. This collective decision-making process imposes a critical check on individual actors with imperfect peripheral vision or even biased viewpoints. Amendment proposals must clear the Standing Committee, the Judicial Conference, and the U.S. Supreme Court thereafter. And Congress stands guard at the end of the line to protect its constitutional authority over the federal courts.³⁵⁸

The rulemaking process thus ascertains justifiability in the only manner possible in a democratic society—through collective debate and consideration with notice and an opportunity to be heard for all affected and appropriate checks and balances firmly in place. Professor Nunn laments the time-consuming nature of this democratic process. But some ideals are worth the hassle. As Judge Irving Lehman of the New York Court of Appeals wrote, “We secure greater speed, economy, and convenience in the administration of the law at the price of fundamental principles of constitutional liberty. That price is too high.”³⁵⁹

D. The Devil Is in the Details: The Mechanics of “Living Evidence”

“Living Evidence” makes a broad, sweeping call to action, urging the federal judiciary to push dynamic reforms to the Federal Rules of Evidence. Absent, however, is any detailed description as to how this transformation of the Rules will be effectuated. As varied as their views may be regarding normatively justifiable evidentiary outcomes, trial judges share one, arguably universal, perspective. Trial judges are notoriously reversal-averse and adhere to statutory and rule text, as well as to precedent, where it dictates a clear result.³⁶⁰

But it appears that trial judges are to be the infantry on the “Living Rules” beachhead. For the theory to gain traction, trial judges must push the Rules forward with rulings on the admissibility of evidence they deem to be modernly justifiable. To be sure, there are discretionary calls and interpretive ambiguities within the Rules that afford trial judges great latitude in reaching outcomes they deem appropriate within the confines of the current regime. But “Living Evidence” theory calls upon judges to do more than exercise the full complement of discretion vested in them by the Federal Rules of Evidence. It pursues revolutionary changes that push beyond the boundaries of the existing Rules. Yet it is difficult to imagine federal trial judges initiating such transformative changes knowing that appellate review awaits.

Well-established and time-honored rules of appellate practice present a serious obstacle to the “Living Rules” theory once the avant-garde decisions by district court judges land at the doorstep of the circuit courts. Circuit precedent regarding the proper application of the Federal Rules will constrain the allowable scope of experimentation. Although occasionally discarded in landmark constitutional cases in which the courts are vested with the primary authority for determining first principles, stare decisis is unlikely to be trampled in a quest to rewrite Evidence Rules duly enacted pursuant to the Rules Enabling Act. Thus, progressive admissibility decisions made by trial judges that compromise fidelity to the Rules are likely to be rejected at the next level.

Perhaps it is the job of the circuit courts to transform the Federal Rules of Evidence in the first instance. Again, stabilizing standards of appellate review make this avenue equally unlikely. First, appellate courts reverse evidentiary rulings only for error—often evaluated on an abuse of discretion standard.³⁶¹ It is difficult to imagine a reversal in the name of justifiability when a trial judge applies the Federal Rules of Evidence correctly. For example, Professor Nunn argues that the excited utterance hearsay exception is unsupported and that federal judges should not admit hearsay statements solely because they satisfy the three requirements articulated by the exception.³⁶² He suggests that it would be an improvement if judges required an additional showing of “reliability”—over and above the requirements articulated in the exception—to support the admission of an excited utterance.³⁶³ Suppose a trial judge admits a hearsay statement through the exception because all three requirements stated in rule text are satisfied and the defendant appeals the admission of the statement. Even an appellate court that supports an added reliability requirement would be hard-pressed to reverse the admission decision of the trial judge who properly admitted the statement according to the requirements of Rule 803(2). Assuming this obstacle could be overcome, it would take an en banc decision to create new transformative evidentiary standards not supported by past circuit precedent.³⁶⁴

Although it is possible for federal judges to pursue normatively justifiable outcomes while maintaining fidelity to the Federal Rules of Evidence, it is inconceivable that the federal judiciary will launch the reform effort suggested by a “Living Rules” theory. This renders the theory not only problematic, but implausible as a solution to the perceived lack of progress in the evidentiary arena.

E. The Fallacy of Rulemakers as Regulators in a “Living Evidence” Paradigm

Graciously, Professor Nunn suggests that the rulemaking process that has failed so egregiously over the past few decades would not become irrelevant or obsolete in a “Living Evidence” universe. He argues that the rulemaking process can operate as part of a feedback loop as federal judges innovate.³⁶⁵ The rulemaking process would act as a governor on the “Living Evidence” push forward, blessing the pioneering judicial transformations it supports and reining in or rejecting those it does not.³⁶⁶

But if federal courts possess the authority to reform evidence standards by elevating justifiability over fidelity to the text of the Federal Rules of Evidence in the first place, the Federal Rules of Evidence do not and cannot cabin judicial decision-making. Accepting the fundamental premise of “Living Evidence”—that federal judges possess the power to innovate—renders the rulemaking process impotent to curb their dynamic reforms. In a world where federal courts are free to eschew fidelity to rule text in favor of perceived normative justifiability, the Federal Rules of Evidence become a paper tiger. Amendments to rule text that judges are free to ignore would offer no check on this judicial power.

Of course, so long as the rulemaking process approved of all judicial innovations, the text of the Federal Rules of Evidence could be updated to adopt those reforms and to remove any tension between fidelity and justifiability—at least until another judge makes another innovation that pushes the standard beyond the text once again. Setting aside the powerlessness of the Rules to restrict judicial transformation in a “Living Evidence” world, through what technique would the rulemaking process reject an innovation deemed improvident and insist upon the existing rule? If the text of the particular provision is already clear, it is nearly impossible to “amend” it to state identical requirements. Drawing upon the excited utterance exception to the hearsay rule again to illustrate, suppose some federal courts expressly adopt the additional “reliability” requirement for admitting statements through the exception that Professor Nunn suggests.³⁶⁷ Should the rulemaking process reject this discretionary limitation on the exception that eliminates its ex ante predictability, it could not simply amend Rule 803(2) to restate its original requirements. That would be no amendment at all. Professor Nunn suggests the addition of a new committee note to dial back any ill-advised innovations.³⁶⁸ But this again reflects a misapprehension of the rulemaking process. Rulemakers are statutorily forbidden from adding committee notes without amending the text of the rule itself.³⁶⁹ Perhaps all bets are off and rulemakers are free to ignore this congressional limit if they deem it normatively inconsistent with modern realities.

In sum, it is impossible to have it both ways. Once “Living Evidence” theory wrests authority from the rulemaking process and empowers the federal judiciary to experiment outside the text of the Federal Rules of Evidence, rulemaking cannot come to the rescue.

F. The Empty Promise of Living Evidence

The true failure of “Living Evidence” theory is revealed by the “dynamic,” “transformative” reforms that it promises to deliver when it pushes past the cumbersome democratic rulemaking process that has frozen the Federal Rules of Evidence in place. Professor Nunn disregards the consequences of many of these alleged improvements and overlooks the impact of the current provisions they will replace. Many of the suggested reforms suffer from inconsistent rationales that would damage the coherent operation of evidentiary standards.

“Living Evidence” cries out for analytically problematic modifications to the Rules. For example, Professor Nunn denounces the standard of relevance found in Rule 401 as too restrictive.³⁷⁰ He argues that our concept of relevance, which permits evidence with any logical tendency to support a point that is material under the substantive law, must be expanded to permit parties to demonstrate that “systematic racism infused, infected, and influenced the factual background of a particular case.”³⁷¹ Such evidence would “provide factfinders a robust explanatory model for the events in a case.”³⁷² At the same time, he argues for excluding evidence of a defendant’s flight from authorities in connection with the charges at issue.³⁷³

First and foremost, the existing rules of relevance clearly permit evidence of unlawful, race-based misconduct in appropriate cases.³⁷⁴ And altering the bar for what constitutes relevant evidence is a dangerous proposition. The test of relevance in Rule 401 is famously forgiving.³⁷⁵ It provides that evidence is relevant if it possesses “any tendency,” however small, to make some fact that counts under the substantive law more or less likely than it would be without the evidence.³⁷⁶ Moreover, as recognized by the Advisory Committee Note, “[t]he fact to which the evidence is directed need not be in dispute” and evidence that is “background in nature” may be offered to assist the factfinder.³⁷⁷ Professor Nunn refers to “background” information and certainly there are cases in which a trial court could allow evidence of systemic racism as background under the current rule.

Of course, the concept of relevance does demand a logical tendency to make facts that are of consequence under the law more or less likely. There are only two ways to broaden this already forgiving standard further. One would be to eliminate logic as a grounding for relevance determinations. It should go without saying that the system would suffer from untethering relevance from logic. The other would be to allow parties to prove facts that are admittedly not “of consequence” under the applicable law. Either of these “reforms” would spell the end of any true minimum standard for what may be presented at trial.

An anything-goes approach to relevance can assuredly be weaponized against vulnerable groups by powerful litigants as easily as it can allow for more context that aids them. Freed from the strictures of relevance, prosecutors could seek to parade sympathetic, historical, and tangential information unrelated to the events at issue before a jury. A defendant could object under Rule 403, but on what basis following the loss of the limits of relevance? What’s good for the goose is notoriously good for the gander in the courtroom. Furthermore, it is difficult to envision a system that freely admits information unrelated to guilt or innocence, but that effectively shuts out evidence of a defendant’s flight from authorities or prejudicial information regarding a defendant’s criminal history. Of course, under a “Living Evidence” framework, federal judges could simply allow contextual appeals by the defendant while foreclosing similar attempts by the prosecution. But such an approach would abandon a coherent and analytically sound system of evidentiary standards in favor of one that allows trial judges simply to choose winners and losers.

The hearsay reforms to be generated by “Living Evidence” theory appear similarly incompatible. In one breath, Professor Nunn pillories the dying declarations and excited utterance hearsay exceptions, suggesting that they should be abolished or severely restricted.³⁷⁸ Such reforms would reduce the amount of hearsay that can be considered by a jury, eliminating hearsay statements admitted through both exceptions.³⁷⁹ But in another breath, Professor Nunn chastises the rulemaking process for ignoring research suggesting that juries are more capable of discerning evaluation of hearsay evidence than previously thought.³⁸⁰ This critique implies that “Living Evidence” theory might expand upon the hearsay available to a federal jury. One federal judge might share concerns about the dying declarations and excited utterance exceptions and might respond to a “Living Evidence” paradigm by restricting the admissibility of hearsay, while another might be persuaded that jurors are fully capable of weighing hearsay evidence and might open the door to more hearsay evidence. Both would be relying upon supposed “empirical” evidence to justify opposite evidentiary outcomes.

The excited utterance hearsay exception falls prey to the familiar refrain that it is based upon unsupportable folk psychology.³⁸¹ The exception admits hearsay statements that relate to a “startling event” so long as the statements are made “while” the declarant remains “under the stress” caused by the startling event on the theory that such statements enjoy greater reliability than other hearsay statements.³⁸² Many noted scholars, including Judge Richard Posner, have criticized the excited utterance exception for lacking empirical support and entire articles have been devoted to scholarly critique of this exception.³⁸³ A detailed analysis of the exception is beyond the scope of this Article. Suffice it to say, however, that science undoubtedly cannot prove that all hearsay statements satisfying the requirements of the excited utterance exception are unimpeachably reliable.

But Rule 803(2) reflects a policy judgment that statements made in the heat of the moment before ample opportunity for reflection are more likely to be reliable than hearsay statements made after the passage of time when motivations have crystallized and should be available to the trial process.³⁸⁴ Nowhere is this more apparent than in the domestic violence context when tearful victims tell 9-1-1 operators about the abuse they are suffering in real-time.³⁸⁵ As time passes and the event recedes, financial and safety concerns become paramount. Victims fear reprisal if they testify in support of criminal charges and often rely upon their abuser for support. Thus, domestic violence victims refuse to appear at trial to repeat their accusations or testify to a very different, innocuous version of events.³⁸⁶ The excited utterance exception permits admission of the real-time statements of these victims (assuming compliance with confrontation rights) based upon the notion that statements made by distraught victims in the immediate aftermath of a traumatic event are more likely to be reliable than those made after biases have set in.³⁸⁷ Even if critics of the excited utterance exception doubt the ability of excitement to create reliability, surely they do not question the ability of bias to create unreliability.

None of this is to say that the excited utterance exception or hearsay doctrine has reached peak optimization.³⁸⁸ Surely, there may be room for improvement in the future. Professor Nunn does not propose abolition of the excited utterance exception, however. The only reform identified that might be achieved through a “Living Rules” theory of interpretation is the addition of a case-by-case determination of “reliability” by the trial judge based upon an assessment of the “scientific consensus” regarding excited utterances at trial.³⁸⁹ Not only would this proposal deprive the categorical hearsay exceptions of the predictability litigants prize, but it is also difficult to see how it resolves the concern over “folk psychology.” How are individual trial judges to assess the reliability of human declarants? Perhaps they are to perform detailed research on the empirical data available regarding the reliability of particular statements during trial. When such data is inconclusive or conflicting, trial judges cannot await more definitive scientific examination. They are likely to fall back on their own common-sense notions of reliability, thus replacing the standardized “folk psychology” in the excited utterance exception with an individualized version that is itself empirically bankrupt.³⁹⁰

“Living Evidence” also promises exciting changes to Rule 606(b). Rule 606(b) precludes jurors from testifying about their internal deliberations after a verdict is reached, with limited exceptions.³⁹¹ This general proscription is designed to protect the finality of jury verdicts and the free exchange of ideas during deliberations.³⁹² Professor Nunn laments this “staunch protection of the deliberation room” and argues for sunshine in the jury room to bring our jury system into line with contemporary norms.³⁹³ He implies that jurors should be able to testify that a jury ignored instructions or spent much of a trial intoxicated.³⁹⁴ While Professor Nunn correctly notes the “invidious ills of structural and systematic discrimination” in the jury room, he incorrectly suggests that Rule 606(b) would foreclose even juror testimony about the use of racial animus to convict a criminal defendant.³⁹⁵

In Peña-Rodriguez v. Colorado,³⁹⁶ the Supreme Court held that juror testimony revealing racial animus in the deliberation process must be allowed to impeach a criminal conviction due to the tragic history of racial discrimination in this country and the constitutional promise of a fair and impartial jury.³⁹⁷ Thus, Rule 606(b) cannot prohibit juror testimony about such egregious racial or ethnic discriminatory animus used to convict a defendant. Outside of this critical context, however, all members of the Supreme Court (who would be the ultimate “Living Evidence” enforcers) reaffirmed the importance of prohibiting juror testimony about internal deliberations, in order to protect the free exchange of information crucial to our jury system and to safeguard the finality of verdicts.³⁹⁸ One can only imagine the consequences if jurors are free to testify about all the perceived failings, misunderstandings, and shortcomings of fellow jurors during the deliberation process after a verdict is entered. “Living Evidence” theory promises to throw open the door to the jury room.³⁹⁹ Such a proposal is bold to be sure. It is also plainly inconsistent with the most recent Supreme Court precedent on this policy issue and fails to account for the chilling effects and threats to finality posed by more widespread access to post-verdict juror testimony.⁴⁰⁰

Finally, “Living Evidence” takes aim at Rules 602 and 701, which “allow eyewitnesses to testify liberally regarding what took place in a particular case.”⁴⁰¹ Notwithstanding grave concerns about the reliability of certain eyewitness identifications, it is difficult to imagine that elimination or modification of Rules 602 and 701 will improve the search for truth. These bedrock provisions pave the way for witnesses to testify live at trial subject to cross-examination based upon first-hand personal knowledge of underlying events.⁴⁰² Perhaps “Living Evidence” theory would allow trial judges to pick and choose among witnesses based upon the perceived reliability of their accounts. Ignoring admissibility standards in this context would invade not only the province of Congress, but the foundational role of the jury as the ultimate arbiter of credibility.

In sum, “Living Evidence” threatens to bring a set of internally inconsistent and problematic reforms to the Federal Rules of Evidence. An incoherent and rationally bankrupt set of changes hardly reflects improvement. Furthermore, many of the specific updates promised offer little constructive advancement in the evidence admitted at trial.

Conclusion

“Living Evidence” is premised upon two critical assumptions: (1) that the Federal Rules of Evidence are “dead”; and (2) that judicial emphasis on justifiable outcomes in keeping with modern norms and empirical realities will transform the Rules for the better. Both are fatally flawed. The Federal Rules of Evidence are the most successful codification of evidentiary standards ever achieved and have been utilized as models for evidence codes at the state level, as well as in foreign jurisdictions. Evidence rulemaking is alive and well. Since its reconstitution in 1993, the Evidence Advisory Committee has worked steadily to update the rules in accord with modern technological and cultural realties. The statutorily prescribed rulemaking process has yielded many significant amendments to the Federal Rules of Evidence. And five more proposed amendments are in the rulemaking pipeline right now.⁴⁰³ Furthermore, a “Living Evidence” approach to Rules’ reform is constitutionally problematic, unworkable, and dangerous to the fair and efficient operation of the federal trial process. It promises variable, internally inconsistent reforms that offer little in the way of constructive improvement. Long live the Federal Rules of Evidence!

Appendix

Rule Amendments to the Federal Rules of Evidence, since the Advisory Committee Was Reconstituted in 1993⁴⁰⁴

1993

Rule 705:⁴⁰⁵ The rule was amended to avoid a conflict with discovery provisions in the civil and criminal Rules, which require advance disclosure of the basis of an expert’s opinion. The rule as amended focuses on the expert’s testimony at trial, rather than disclosure before trial.

1994

Rule 412:⁴⁰⁶ Extending the protections of Rule 412 to civil cases and to all criminal cases involving sexual misconduct, and setting forth specific procedures when the rule is invoked.

1997

Rule 407:⁴⁰⁷ Clarifying that the rule is applicable in product liability actions, and also providing that the rule is not applicable if the remedial measure precedes the plaintiff’s injury.

Rule 801(d)(2): ⁴⁰⁸ In determining whether a declarant is an agent or coconspirator, the trial court must consider the hearsay statement itself, but the statement itself is never sufficient to prove agency or conspiracy. The amendment provides a protective rule in response to a question left open by the Supreme Court in Bourjaily v. United States.

803(24) and 804(b)(5) consolidated and transferred to Rule 807:⁴⁰⁹ The contents of Rules 803(24) and 804(b)(5) were combined and transferred to a new Rule 807. This was done for purposes of convenience and to allow for the possibility of future hearsay exceptions under Rules 803 and 804.

Rule 804(b)(6):⁴¹⁰ This new rule provides that if a party acts wrongfully to create the unavailability of a hearsay declarant, with the intent to prevent the witness from testifying, the party forfeits the right to object on hearsay grounds. The amendment resolved a dispute in the case law about the standard of proof required for a finding of forfeiture.

1998

Rule 615:⁴¹¹ A witness may not be sequestered if the witness is authorized by statute to be present. The amendment is in response to statutes barring the exclusion of victims who will testify at trial.

2000

Rule 103:⁴¹² A party does not need to renew an in limine objection at trial if the in limine ruling is definitive. The amendment resolves a circuit split and eliminates the need to make a pro forma objection.

Rule 404(a)(1):⁴¹³ If the defendant in a self-defense case attacks a pertinent character trait of the victim, the prosecution can offer evidence of the defendant’s same trait. The rule was suggested by Congress, to promote victims’ rights.

Rule 701:⁴¹⁴ A witness offered as a lay witness must satisfy the strictures of Rule 702 to the extent that the witness’s opinion is based on scientific, technical, or other specialized knowledge. The intent of the amendment is to prevent parties from avoiding the requirements of Rule 702 (and corresponding disclosure obligations) simply by designating their witness as a lay witness.

Rule 702:⁴¹⁵ The proponent of an expert’s testimony must prove to the court by a preponderance of the evidence that the expert has relied on sufficient facts or data, employed a reliable methodology, and applied that methodology reliably to the facts of the case. The amendment codifies, structures, and amplifies the standards for the gatekeeping of expert testimony, set forth in the Supreme Court cases of Daubert, Joiner, and Kumho Tire. It is accompanied by a lengthy committee note on how to apply Daubert and its progeny. That note has more case citations than any other committee note under any of the federal rules of procedure.

Rule 703:⁴¹⁶ An expert relying on inadmissible information may not disclose that information to the jury unless its probative value in helping the jury understand the expert’s opinion substantially outweighs its prejudicial effect. The amendment prohibits parties from using experts as a conduit for introducing information that is relied upon by the expert but is not independently admissible.

Rule 803(6):⁴¹⁷ The foundation requirements for the business records exception can be established through a certification by a qualified witness. The amendment is designed to limit expense and inconvenience when offering business records.

902(11):⁴¹⁸ A domestic business record is self-authenticating when it meets the requirements of the business records exception and is accompanied by a certificate of a custodian or other qualified person.

902(12):⁴¹⁹ A foreign business record offered in a civil case is self-authenticating when it meets the requirements of Rule 803(6) and is accompanied by a certificate of a custodian or other qualified person that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed.

2003

Rule 608(b):⁴²⁰ Clarifying that the absolute prohibition on extrinsic evidence applies only when the sole reason for proffering it is to attack the witness’s character for untruthfulness. The amendment corrected case law which read the original term “credibility” to bar extrinsic evidence offered to prove bias and contradiction.

2006

Rule 404(a):⁴²¹ Clarifying that circumstantial use of character evidence is limited to criminal cases. The amendment rejected case law that allowed proof of character in certain civil cases.

Rule 408:⁴²² The amendment (1) protects against admission of compromise evidence in subsequent criminal litigation; (2) applies even when the proponent wants to admit its own statements and offers; and (3) bars admission of compromise statements when offered to impeach by way of prior inconsistent statement or contradiction. These changes resolve three separate circuit splits, with each resolution promoting the policy of Rule 408.

Rule 606(b):⁴²³ Jurors are allowed to testify to clear up a clerical error in the verdict form—as that clarification does not require testimony about deliberations. This amendment resolves a dispute among the circuits.

Rule 609(a)(2):⁴²⁴ A conviction is automatically admissible to impeach a witness only when the conviction required proof of a dishonest act or false statement. The amendment rejects case law that found convictions automatically admissible whenever the court reviewing the record could find that the witness lied in the course of committing the crime.

2008

Rule 502:⁴²⁵ Protects against findings of waiver due to mistaken disclosures; precludes a finding of subject matter waiver if the disclosure is unintentional; and authorizes court orders to protect against waiver of privilege and work product. These changes reduce the costs of discovery.

2010

Rule 804(b)(3):⁴²⁶ The prosecution, when offering a declaration against penal interest, must establish corroborating circumstances that clearly indicate the trustworthiness of the statement. The amendment resolves a conflict in the circuits, and also provides parity between the prosecution and the accused.

2013

Rule 803(10):⁴²⁷ Before an absence of a public record can be proved by a certificate, the prosecution must provide pretrial notice, and if the defendant makes a timely demand, the official who searched the public records and prepared the certificate must testify at trial. The amendment remedies a constitutional problem in proof of the absence of a public record through a certificate, as raised by the Supreme Court in Melendez-Diaz v. Massachusetts.

2014

Rule 801(d)(1)(B):⁴²⁸ If a prior consistent statement is admissible to rehabilitate a witness’s credibility, it is also admissible over a hearsay objection. The amendment is designed to eliminate the unnecessary complications that occur when a distinction is made between substantive and impeachment use when a prior consistent statement is offered.

Rules 803(6), (7), and (8):⁴²⁹ Each of these rules was amended to clarify that the opponent of the proffered record has the burden of showing untrustworthiness. The amendment resolves a dispute among the courts as to the allocation of the burden on the question of trustworthiness.

2017

Rule 803(16):⁴³⁰ The hearsay exception for ancient documents is not available for any document prepared after January 1, 1998. The intent of the amendment is to prevent electronically stored information from being introduced under the ancient documents exception, without any showing of reliability.

902(13):⁴³¹ A record generated by an electronic process or system that produces an accurate result is self-authenticating when it is shown by a certification of a qualified person. The amendment is designed to reduce the costs of authenticating electronically stored information.

902(14):⁴³² Data copied from an electronic device or storage medium is self-authenticating if authenticated by a process of digital identification (such as a hashtag), when that is shown by a certification of a qualified person. The amendment is designed to reduce the costs of authenticating harddrives and computer files.

2019

Rule 807:⁴³³ The amendment made several changes to the residual exception: (1) it abolishes the requirement that the court search for guarantees of trustworthiness “equivalent” to the other exceptions, because the language was difficult to apply and did not meet its stated goal of limiting judicial discretion; (2) it requires the court, in assessing trustworthiness, to consider the presence or absence of corroborating evidence, thus resolving a conflict among the circuits; and (3) it provides a good cause exception for the notice requirement, resolving a conflict among the circuits.

2020

Rule 404(b):⁴³⁴ Amends the notice requirement so that it is self-executing, and most importantly, it requires the government in its notice to articulate the permissible purpose for the other act evidence and to explain how it is probative for that purpose without relying on a propensity inference. The amendment tracks the case law that is providing more protection against an overbroad use of Rule 404(b) against the accused.

2023

Rule 106:⁴³⁵ Unrecorded statements can be used to complete, and a completing statement may be admitted over a hearsay objection. The amendment resolves two circuit splits and avoids an unfair result when a misleading statement is admitted.

Rule 615:⁴³⁶ The amendment clarifies that the rule authorizes only exclusion from the courtroom. But the rule now specifies that the court has the discretion to prohibit trial testimony from being disclosed to or accessed by witnesses outside the courtroom. The amendment resolves a dispute in the courts about the meaning of a Rule 615 order.

Rule 702:⁴³⁷ The amendment reiterates that the proponent of an expert’s opinion must show by a preponderance of the evidence that the expert has a sufficient basis, a reliable methodology, and reliable application. It also directs the court to look more closely at the expert’s conclusion to determine whether the expert overstates what the methodology can reliably provide.

2024

Rule 107:⁴³⁸ Adding a new provision setting forth a distinction between demonstrative evidence (offered to prove a fact) and illustrative aids (which are not evidence); imposing standards for allowing the use of illustrative aids.

Rule 613(b):⁴³⁹ Unless the court orders otherwise, a witness must have an opportunity to explain or deny a prior inconsistent statement before extrinsic evidence of the statement is offered. The amendment promotes efficiency and resolves a dispute among the courts.

Rule 801(d)(2):⁴⁴⁰ If a statement of a declarant would be admissible against that declarant as a party-opponent statement, it is admissible against a successor to the interests of the declarant or the declarant’s principal. The amendment resolves a dispute among the courts.

Rule 804(b)(3):⁴⁴¹ In assessing corroborating circumstances clearly indicating trustworthiness for a declaration against interest in a criminal case, the court must consider the presence or absence of corroborating evidence. The amendment resolves a dispute in the courts and provides consistency with Rule 807.

Rule 1006:⁴⁴² The amendment makes the following changes to Rule 1006: (1) it clarifies that a summary of voluminous evidence is itself admissible as evidence, without a limiting instruction; (2) it distinguishes summaries of voluminous admissible evidence from summaries offered as illustrative aids, which are not evidence and which are governed by Rule 611(d); (3) it clarifies that while the underlying evidence must be admissible, it need not be admitted.

Category: Print Issues

Long Live the Federal Rules of Evidence!

Share this article