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A Brief Introduction to the Federal Rules of Evidence

June 1, 2012

July 1, 1975 was an important re-start for a trial lawyer’s study of the practice of evidence.  On that date the Federal Rules of Evidence became effective.  December 1, 2011 is another important date.  On that date the “restyled” Rules became effective.  Substantively, the 2011 amendments did not change the Rules.  Stylistically, they now read as though they were written to be understood by ordinary people.  The “Committee Notes” to the 2011 amendments tell us:

The language of [the Rules] has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

In 2012, it is no longer important that the original Rules unified and simplified a vastly complex and often contradictory body of common law into a cohesive system, and that the language of that system is now “restyled” to be more easily understood.  Among those things that remain important to the student and practitioner of evidence in 2012, however, these two principles stand out:

  1. The newly worded Rule 402 remains the bedrock we turn to every time we analyze an evidence problem: “Relevant Evidence is admissible unless …”
  2. The study and practice of evidence is based on the newly revised Rules

Let’s start with the first principle.  The original Rule 402 began with the words “All relevant evidence is admissible, except … .”  As the Federal Rules Advisory Committee stated in 1975,

The provisions that all relevant evidence is admissible, with certain exceptions, and that evidence which is not relevant is not admissible are “a presupposition involved in the very conception of a rational system of evidence.” Thayer, Preliminary Treatise on Evidence 264 (1898). They constitute the foundation upon which the structure of admission and exclusion rests.

This principle remains the starting point under the restyled Rules.  The simplified language of Rule 402 now states:

Rule 402. General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

  • the United States Constitution;
  • a federal statute;
  • these rules; or
  • other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.

Let’s get that principle down quickly, and move on to the real struggle of evidence:

When “the following provides otherwise” … and when it doesn’t!

The second principle that remains important to us is that the study and practice of evidence is based on the Rules.  So, let’s learn them.  Many of you laughed yesterday when I concluded class by saying:

This weekend, find yourself a comfortable place, in time and in space, and sit down with this little gift I have given you, the pocket Federal Rules of Evidence.  Get yourself situated and settled, and take out the rulebook, but DO NOT READ THE RULES.

I said it to get a laugh, and yet I could not have been more serious.

DO NOT READ THE RULES!

At least not now.  We’ll read each one repeatedly in time.  For now, we need context.  We need to know how the Rules are organized.  Remember that once we have answered the question of relevance, and if we have determined it is relevant and therefore admissible under Rule 402, we must then figure out if “the following provides otherwise.”  We start that inquiry by asking:

What is it?

To put yourself in the best position to get a judge to answer that question favorably for your client (not to mention to get this “Judge” to grade your exam favorably), you need to know what all the options are for “What it can be.”  It could be hearsay, opinion, character, other similar incident, habit, religious belief, or many other things.  For you to effectively argue on behalf of a client whether “the following provides otherwise,” you must first be able to argue what the evidence is in the first place.  So for now, learn what the options are by simply reading the subject headings of the Rules.

READ THE SUBJECT HEADINGS OF THE RULES

It would even be a good idea to flip your new pocket rulebook over and read the subject headings of the old Rules, since for years to come most of the cases we’ll be reading will be discussing the older version.

See you Tuesday!

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