Introduction
In contrast to most codification efforts under the Rules Enabling Act of 1934 and its progeny, the Federal Rules of Evidence (FRE) had a rather tumultuous birth. Whereas Congress accepted the rules of civil, criminal, and appellate procedure between 1938 and 1967 without making significant revisions, the FRE were subject to substantial alterations in both houses of Congress and gave rise to considerable debate among scholars, politicians, and the bar. Some members of Congress rejected the notion that the Supreme Court had the authority to promulgate rules of evidence under either the Rules Enabling Act or the U.S. Constitution, arguing that the FRE reflected substantive policy choices that could only be enacted by statute. Congress ultimately passed the revised FRE as a statute, thereby removing any ambiguity as to their constitutionality or the Supreme Court’s authority. The rules that resulted out of this process were initially somewhat divisive among practitioners and policymakers, but have since become widely accepted and have influenced the evidence rules of many states.
Federal Evidence Law before the FRE
Prior to the adoption of the FRE, the federal law of evidence was based on a blend of general common-law principles, state law, federal statutes and—in a handful of areas—the Constitution. The common law of evidence proved difficult to distill into readily comprehensible maxims, as it was built on a series of rules with many technical exceptions, which often varied considerably from jurisdiction to jurisdiction. Beginning in the late nineteenth century, a group of leading lawyers and evidence scholars attempted to more clearly define the common law of evidence. Perhaps the leading authority was John Henry Wigmore’s multivolume Treatise on the System of Evidence in Trials at Common Law, originally published in 1904. This work compiled and attempted to make sense of concepts and rulings on the subject from multiple state and federal decisions on the admissibility of evidence. Nevertheless, individual jurisdictions continued to differ on the best approaches to fundamental issues like the availability of evidentiary privileges and the manifold exceptions to the inadmissibility of hearsay (out-of-court statements offered to prove the truth of the matter asserted).
Wigmore and other eminent law professors and leaders of the bar lamented that evidence standards were so variable. Indeed, in the early 1930s, the influential American Law Institute (ALI) claimed that a restatement of evidentiary rules “would be a waste of time or worse,” arguing instead that “what was needed was a thorough revision of existing law.” In 1938, an American Bar Association (ABA) committee called for “a short code which shall contain only the[] wise essentials [of the rules of evidence], but shall still be practicable.” Led by professor Edmund Morgan, another major scholar in the field, the ALI drafted a Model Code of Evidence in 1940. Though not especially short (the first edition ran to approximately 300 pages), the Model Code was designed to deal in general principles, which judges would have discretion to apply in practice, obviating the need to reconcile many of the more technical details of the law of evidence. The Model Code did not attempt to capture all the existing common-law evidence rules. According to Morgan, this labyrinthine body of judge-made law reflected judges’ struggle to both respect precedent and “to avoid the absurdities which the simple application of these pronouncements would produce.” The result of this tension, he claimed, was that judges had “engrafted qualifications, refinements and exceptions upon earlier rules, so that the law of evidence ha[d] grown irregularly and in haphazard fashion, one rule seeming to have no relation in reason to another.”
The Model Code’s collection of general principles agitated less radical reformers like Wigmore, however, who felt that any code should provide judges with concrete guidance in specific cases. The Model Code’s drafters also devoted considerable energy to defending some of its more sweeping reforms of a legal field in which many experienced practitioners prized stability. Nebraska was the only state to adopt the Model Code, and even there it proved contentious (the state supreme court’s decision to adopt the ALI’s standards prompted the legislature to revoke the court’s rulemaking authority). Yet Wigmore’s alternative to the Model Code, a hefty tome of more than 500 pages, seemed to confirm some of Morgan’s criticisms of the byzantine state of the field. This conflict over the proper scope of evidentiary rules and the range of judicial discretion in admitting or excluding evidence continued to inform many of the debates over the FRE after World War II. While the Model Code’s defense of trial judges’ “role as master of the trial” disturbed many conservative lawyers, its advocacy of simplification and deference to judicial discretion ultimately won out in a different form.
Federalism also posed challenges for would-be rule makers. Because diversity jurisdiction cases arose under state law, for example, it was not always clear whether state or federal evidence rules should apply. The Conformity Act of 1872 required federal courts to conform “as near as may be” to state-court “practice and procedure,” though it was unclear how much of the law of evidence fit those categories. In Nudd v. Burrows (1875), the Supreme Court permitted a federal court to admit evidence that would have been inadmissible under state law and upheld the judge’s decision to comment on the evidence at the conclusion of the trial in a manner state judges could not. Federal courts were not free to reject all state evidence standards, however. In 1884, for example, the Supreme Court permitted the use of a state physician-patient privilege in an insurance case even though the Court acknowledged this result was likely contrary to the interests of “truth and justice.” Federal courts were often more leery of applying state judge-made rules than they were of enforcing state statutes. An 1897 opinion by the U.S. Court of Appeals for the Eighth Circuit, for instance, stated that “the decisions of the courts of a state construing common-law rules of evidence are not obligatory on the federal courts” but should be used “merely [as] persuasive authority.”
The fine balance between state and federal evidentiary rules was arguably complicated even further by the Supreme Court’s landmark decision in Erie Railroad v. Tompkins (1938). In Erie, the Supreme Court held that federal trial courts should apply state substantive law and federal procedural law in diversity cases. This decision overturned a nineteenth-century opinion that had drawn a firm distinction between state statutes (which federal courts had to apply in diversity cases) and state common-law rules (which they did not). Since some state common-law rules of evidence were unambiguously procedural, federal courts often disregarded those and relied instead on federal common-law principles. However, the status of other important evidence rules—such as the parol evidence rule (which governs oral statements about written contracts), the availability of judicially recognized privileges, or the burden of proof—remained unclear.
The Federal Rules of Civil Procedure (FRCP), promulgated the same year as the Supreme Court decided the Erie decision, attempted to address the potential conflict between state and federal rules. FRCP 43(a) (since significantly revised) broadly favored admissibility, stating that evidence admissible under state law, federal statutes, or federal common-law principles should be admitted. Where those bodies of law differed as to the admissibility of evidence, FRCP 43(a) stated that “the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any [applicable bodies of law].” In the aftermath of the FRCP’s adoption, several commentators and a few lower federal courts continued to lament the absence of a clear and uniform set of evidentiary rules. Some observers believed that the FRCP’s drafters had shirked the issue by placing the onus back on federal trial judges to determine the best of several applicable evidence standards.
The Federal Rules of Criminal Procedure (FRCrP), adopted in 1946, provided a loose analogue to FRCP 43(a), minus some of that rule’s federalism concerns, in the form of FRCrP 26. That rule stated that in criminal cases, the admissibility of evidence should be decided using the “principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” The rule’s “reason and experience” language appears to have reflected changes made in response to the Supreme Court’s concern that, by codifying the use of common-law principles, the criminal rules could lead judges to freeze judge-made evidence principles in place, rather than allowing them to evolve.
These broad rules remained the primary governing standards on federal evidence for decades, a situation one contemporary commentator put down to the disruptive effects of World War II and a lack of initiative from leaders of the bar, many of whom saw advantages to preserving local evidentiary rules they had mastered. However, FRCP 43(a) arguably failed to ensure uniformity across the federal system because federal courts in states with more liberal evidence rules might be more likely to admit evidence than others. And neither rule addressed evidentiary issues that did not directly pertain to admissibility, such as the availability of judicial notice (the court’s power to deem certain empirical facts conclusively proven).
Beginning in 1948, the ABA’s National Conference of Commissioners on Uniform State Laws attempted to craft a new set of model rules that would help to bring state standards into uniformity with each other. This drive, had it been successful, would have had a significant effect on federal evidence standards under FRCP 43(a). In 1953, the commissioners released a first edition of the Uniform Rules of Evidence (Uniform Rules). Though the commissioners had worked in conjunction with the ALI at times, they attempted to avoid many of the negative responses to the Model Code by framing the Uniform Rules as a less revolutionary proposal for uniformity. The Uniform Rules were also significantly simpler than the Model Code, distilled as they were into just seventy-two rules. While only a few states adopted the Uniform Rules, their brevity proved an important template for the FRE’s drafters.
Drafting the FRE
Beginning in 1958, the ABA advocated that the Judicial Conference of the United States (the national policy-making body for the federal courts) create a special committee to determine whether to adopt the Uniform Rules for federal trial courts. In 1961, the Conference approved the creation of an Advisory Committee on Rules of Evidence. Before the Advisory Committee formed, however, Chief Justice Earl Warren decided to appoint a separate special committee to determine the feasibility and wisdom of adopting a new body of federal evidence rules. It is not entirely clear why Warren decided on this intermediary step, though some scholars have speculated that he was concerned by the resistance to prior attempts at standardization. As the committee’s preliminary report suggested, there was also at least some question whether the Judicial Conference and the Supreme Court had the power to promulgate evidence rules in the absence of explicit statutory authorization. The special committee, led by law professors James Moore and Thomas Green and featuring a group of federal judges and former Secretary of State Dean Acheson, reported favorably in 1961 on both the need for, and feasibility of, federal rules. The special committee published a preliminary draft of its report with a call for comments and sent a revised final report to the Judicial Conference’s Standing Committee on Rules of Practice and Procedure in 1963.
In March of that year, the Judicial Conference authorized the appointment of an Advisory Committee to draft new federal rules. Chief Justice Warren appointed the Advisory Committee members in 1965, with prominent Chicago lawyer Albert Jenner chairing the Committee and Edward Cleary, a professor at the University of Illinois College of Law, serving as its Reporter. The Advisory Committee worked for nearly four years on drafting a new set of rules. Though members of the Advisory Committee stressed that their main aim was uniformity, rather than reform, and several noted that they intended to use the Uniform Rules as a guide, any positions on hot-button topics were likely to elicit substantial resistance and comment from members of the bar and other professions with a stake in federal litigation. So it was when the Advisory Committee released a preliminary draft of the rules in 1969 for public comment. After two rounds of revision designed to respond to the many comments the Advisory Committee received in response to the preliminary draft, it sent a revised draft to the Judicial Conference, which in turn submitted the rules to the Supreme Court without further revisions or publication.
Even this move proved contentious, however. Chief Judge Henry Friendly of the Court of Appeals for the Second Circuit wrote to the Supreme Court complaining that the Judicial Conference had not subjected the rules to sufficient scrutiny or allowed for public comment on the rules in their revised form. In 1971, he also noted his criticisms in a judicial opinion. It is not clear whether Friendly’s intervention was the cause, but the justices opted to return the revised rules to the Judicial Conference to be disseminated for further public comment and possible revision.
Coinciding as it did with the fallout from the Pentagon Papers controversy over the publication of stolen government documents, the Judicial Conference’s reconsideration of the revised rules was subject to pressure from conservative politicians and leading figures in the Justice Department who were concerned that the rules did not appropriately shield government secrets from disclosure in federal court. The concern about this issue was heightened when Senator John McClellan introduced legislation designed to increase congressional oversight over the rule-making process, stressing that reform was necessary to ensure the forthcoming evidence rules would adequately protect government secrecy. After a series of revisions by the Advisory and Standing Committees, including several dozen responding to the Justice Department’s concerns, the Supreme Court approved the FRE on November 20, 1972.
Justice William O. Douglas dissented from the Court’s order. Douglas reasoned that the Court’s authority to promulgate rules governing “practice and procedure” in the federal courts did not include the formulation of rules of evidence. He also objected that the Court was not actively involved in the formulation of the rules, but instead acted as a mere “conduit” between the Advisory Committee and Congress. The result was that the rules appeared to bear the Court’s “imprimatur” even though the Court did not “appraise them on their merits, weighing the pros and cons.”
Congressional Revisions to the Proposed Rules
Justice Douglas’s concerns were amplified in the political arena. Despite the various drafting committees’ efforts to respond to criticisms, several of the proposed rules remained contentious. Among the most debated were those granting judges substantial discretion over the admissibility of relevant but potentially inflammatory evidence, those permitting judges to comment on the evidence when summing up a case to the jury, and those regarding evidentiary privileges.
The proposed privilege rules elicited comments from professionals, such as medical doctors, whose relationships had been privileged in many jurisdictions, but were not protected by the new rules. In the aftermath of a 1972 Supreme Court decision narrowly rejecting a journalist’s claim of a First Amendment privilege against compelled testimony before a grand jury, many reporters advocated the inclusion of a journalist’s privilege to preserve the confidentiality of anonymous sources. Perhaps ironically, the proposed rules’ protection of state secrets and the prosecutorial informant privilege proved the most politically provocative. Even some of the politicians who had argued for such protections before the rules came before Congress changed course as the Watergate scandal came to engulf the Nixon Administration in 1973 and ’74.
Finally, some members of both houses echoed Douglas’s argument that the Rules Enabling Act did not empower the Court to craft rules of evidence. A handful of critics suggested the FRE might also pose constitutional issues. Some members of Congress, for example, suggested that the proposed rules standards for judicial notice in criminal cases might deprive defendants of their Sixth Amendment right to a jury trial. Others offered broader constitutional critiques, arguing that so many of the rules touched on substantive policy choices that they should be the subject of congressional legislation rather than judicial rule making.
The Supreme Court did not formally transmit the FRE to Congress until February 1973, such that they were to take effect on July 1, 1973. In March 1973, however, Congress passed legislation postponing the promulgation of the rules to allow it to hold hearings and debate their substance. Federal judges divided on the effect of this intervention. Some began applying the rules to cases on the grounds that they had received the approval of the Judicial Conference and eight Supreme Court justices, while others treated Congress’s action as the functional equivalent of a legislative rejection of the rules. A small number of states also adopted the FRE prior to Congress’s revisions (though the extent to which those states reconciled their rules with those that eventually emerged in the federal system varied).
Despite the forceful reactions against elements of the FRE from members of Congress and external stakeholders, as a practical matter, congressional investigations into the Watergate scandal dominated much of the attention when the House Judiciary Committee began consideration of amendments to the FRE. Nonetheless, the Committee continued its work at a measured pace, hearing testimony on the advisability of individual rules and debating several of the more vexed questions about judicial discretion and privileges. On February 6, 1974, the House passed a much-revised version of the FRE. The Senate Judiciary Committee then held its own hearings and made substantial revisions to the House bill. In general, the version of the rules the Senate passed on November 22, 1974, more closely resembled the rules the Court had transmitted to Congress. A bicameral conference committee then attempted to reconcile the two bills. In the main, the reconciled version of the FRE more closely resembled the House bill. However, on some critical issues, the reconciled bill was silent. For example, the reconciled bill did not include a rule authorizing judges to comment on evidence and left the scope of privileges to the “common law—as interpreted by the United States courts in the light of reason and experience” (though state law was to govern privileges in diversity cases due to concerns about the constitutionality of federal-law privileges under Erie). Both houses passed the reconciled bill in late December 1974, and President Gerald Ford signed it into law on January 2, 1975. The FRE went into effect on July 1 of that year.
The FRE as Adopted
As finally promulgated, the FRE comprised sixty-two rules organized into eleven articles. Article I contained general provisions such as the purpose and construction of the rules, the effect of errors, and the use of evidence for limited purposes. Article II dealt with the concept of judicial notice, a power somewhat curtailed in the criminal context by Congress’s modifications. Article III concerned presumptions and the applicability of state law in civil cases. Article IV governed relevance, the most debated and important aspect of which was Rule 403, giving judges discretion to exclude otherwise relevant evidence to avoid undue prejudice, confusion, or time wasting. Article V, initially limited to a single rule, defined privileges as judges interpreted them under the common law. The Article eliminated all nine of the specific privileges outlined in the version of the FRE the Court had transmitted to Congress. Article VI governed the procedural rules dealing with witnesses. Article VII laid out the rules for accepting or excluding opinion and expert testimony. Article VIII defined the federal law of hearsay. While these rules included many of the common-law exceptions to the hearsay exclusion, such as those for “excited utterances” or statements made for the purposes of medical diagnosis, the FRE also granted judges latitude to admit other hearsay statements that did not fit a defined exception but had other indications of reliability. Article IX dealt with the authentication and identification of documents. Article X defined other rules for documents, such as the admissibility of copies. Article XI contained a small group of miscellaneous rules governing issues like the scope of the rules’ applicability and the process for subsequent amendments.
Reception of the FRE
Unsurprisingly, given the plethora of policy concerns and revisions that had contributed to their drafting and adoption, the FRE did not please everyone with a stake in the law of evidence. Some seasoned trial lawyers grumbled in bar journal articles about individual changes or the cumulative disruption of having to learn a new set of rules. Nevertheless, several states adopted the FRE in part or whole relatively quickly. Sixteen states adopted part or all of the FRE before the end of the 1970s, and twenty-nine states had done the same within ten years of their adoption by the federal courts. These state adoption processes, however, were often contentious themselves, and many of the areas of conflict in the drafting and adoption of the FRE—particularly the law of privileges—became sore points again at the state level. Indeed, some states (including Massachusetts, New York, and Illinois) engaged in protracted debates over whether to adopt the FRE and ultimately declined to do so. Other states did not always track revisions to the rules, moreover, such that even in some jurisdictions that adopted the original federal rules, there remains a lack of total uniformity. Still, the FRE have increasingly become the most widely used and recognized guide to the general principles of evidence, forming the core of most law school courses on evidence and informing the law of evidence even in some states that have not yet formally adopted the rules.
Revisions to the FRE
The FRE have been subject to multiple other revisions since their promulgation. Perhaps the most significant were the adoption of specific rules governing sexual offense cases in 1978 and again in the mid-1990s; the protection of inadvertently disclosed privileged material in 2008; and the “restyling” of the rules in 2011.
An analogue to so-called “rape shield laws” passed by several states, FRE 412 (adopted in 1978) was designed to protect victims of sexual crimes from character attacks on the stand based on their own sexual pasts. This tactic had become notorious for “putting the victim on trial” and arguably contributed to structural barriers to victims seeking justice for sexual violence. However, members of the defense bar pointed to the need to preserve the rights of the accused and argued such evidence was relevant to essential elements of the case under the relevance standards articulated in FRE 401 and 402. FRE 412 attempted to balance these countervailing concerns by prohibiting most uses of a victim’s sexual past, but permitting its use to prove certain essential facts and to preserve the defendant’s constitutional rights. In 1994, Congress passed legislation extending a similar set of protections to witnesses in civil sexual tort cases.
Congress further modified the rules the next year by adding FRE 414, which permitted evidence of similar past offenses in child molestation prosecutions, and FRE 415, which permitted the use of evidence that a party had committed a similar act in civil cases seeking redress for a sexual assault or child molestation. These rule changes modified FRE 404(b)’s limitation of the use of prior crimes or wrongful acts as part of the political branches’ concerted effort to crack down on serial sexual offenders during the 1990s.
The proliferation of digital technologies beginning in that decade gave rise to concerns related to the discovery of electronic information during litigation. One of the major issues associated with the scale of “e-discovery” was the cost and difficulty of ensuring that documents disclosed during the discovery process did not contain confidential information protected by attorney-client privilege or the work-product doctrine (a rule protecting from disclosure materials prepared by lawyers on behalf of their clients). In 2006, the Advisory Committee took up this issue, eventually proposing a new rule designed to protect parties who inadvertently disclosed privileged materials despite taking reasonable precautions. As this rule potentially changed the law of privilege and touched on the effect in federal court of disclosures and judicial orders initially made in state court proceedings, the Judicial Conference sent the proposed rule to Congress to pass as a statute, rather than using the amendment process outlined in the Rules Enabling Act. Congress passed, and President George W. Bush signed, the rule into law in September 2008.
In the 2000s and early 2010s, the Judicial Conference’s Standing Committee on Rules of Practice and Procedure engaged in a sustained effort to restyle court rules to simplify and modernize their language without changing their underlying meaning. The restyling effort also aimed to make the style of each body of rules more consistent with the others. The Supreme Court approved the restyled FRE on April 26, 2011, and they became effective on December 1 of that year.