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1981

The Federal Rules of Evidence: Six Years After The Federal Rules of Evidence: Six Years After

Paul F. Rothstein Georgetown University Law Center, rothstei@law.georgetown.edu

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Fed. B. News & J., Dec. 1981, at 282, 283

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Part of the Civil Procedure Commons, Criminal Law Commons, Criminal Procedure Commons, and the Evidence Commons

The Federal Rules of Evidence: Six Years After

by Paul F. Rothstein

Paul F. Rothstein is Pro fssor ofLaw, Georgetown University, and isa former Chairman of the FBA Con-tinuing Legal Education Board. Pro-fssor Rothstein is the author of anumber of books and articles onEvidence.

The Federal Rules of Evidencehave been in effect since 1975. Sixyears of experience is not much timein which to assess such a complexand important body of law. Never-theless, there is now some "evi-dence" of the impact of the FederalRules on the various states and cir-cuits.

The Rules do seem to have provedsuccessful enough to stimulatewidespread imitation. Approxi-mately half the states in the UnitedStates have or will very shortlyhave evidence codes patternedsubstantially on the Rules, evendown to their numbers. Many of theremaining states (e.g., Iowa, Illinois,and Pennsylvania) have alreadyadopted individual Federal Rules bydecision, and have indicated awillingness to adopt more in thefuture. At a series of evidence codifi-cation meetings in both New Yorkand Canada, it became apparentthat the Federal Rules will also exertconsiderable influence on new codeseven in those important and usuallyvery independent jurisdictions. Inaddition, the Uniform Law Commis-sioners have amended their UniformRules of Evidence to conform almostprecisely to the Federal Rules, andadministrative agencies are relyingon the Federal Rules more and more.

The meaning of "success" for abody of rules such as these is some-what problematical. The new Ruleswere expected to reduce appeals onevidence questions, but they have notyet fulfilled this expectation. On thecontrary, since promulgation of theFederal Rules there have been nearly500 appellate decisions each year inFederal courts involving evidencequestions most observers would

probably consider important. In con-trast, there were approximately halfthat many appeals in the years im-mediately prior to the Federal Rules.Appeals may begin to decrease asmore questions are settled. For ex-ample, although at this point there isno real uniformity among the cir-cuits and states, the new Rules doseem to have contributed to agrowing consistency among thevarious circuits, and among statesunder similar rules, on significantquestions such as what derelictionscan be used to impeach.

"Approximately half the statesIn the United States have orwill very shortly have evidencecodes patterned substantiallyon the Rules, even down totheir numbers."

Another apparent effect of theFederal Rules is a tremendous in-crease in admissibility, with a conse-quent increased emphasis on lawyerskills to show defects in evidence as amatter of weight to the fact-finder,particularly in the area of experttestimony.

Some lawyers feared that the newRules' emphasis on judicial discre-tion would increase the difficulty ofplanning and predicting the course,outcome, and expense of litigation.These results do not seem to have oc-curred to nearly the extent that wasfeared. In many areas in the past, thecommon law and the multiplesources of evidence law that could bedrawn on by the judge gave himmore options than the Federal Rulesdo. However, expert testimony andthe "catch all" exception to the hear-say rule, which allows the judge tocreate new exceptions to the hearsay

rule on essentially discretionarystandards, have both proved to begreater problems in this regard thansome may have anticipated.

The Rules have had perhaps thegreatest unforeseen effect on pretrialpreparation and discovery. For ex-ample, the extent to which the experttestimony rules are predicated onfull discovery was only dimly appre-ciated. Full discovery is indispens-able under the Rules because expertsare allowed to testify based on hear-say and other inadmissible evidence;they need not mention in the directexamination the basis for their testi-mony (i.e., their assumed hypo-thetical facts; whether they haveexamined the patient or thing in con-troversy; what they have used, look-ed at, studied, read, or considered, ifanything, etc.). Even if the FederalRules of Civil Procedure provided foradequate discovery of experts (whichthey do not), requiring extensive dis-covery in every case does not seem tomake economic sense. The new hear-say, authentication, and best evi-dence rules also place a highpremium on discovery, since theirformer coverage is considerably cutback under the Federal Rules. Thus,an attorney may no longer be pre-sented with the maker of a statementto be used against him, or an authen-ticating witness to cross examine, oran original document to study. In-stead, the attorney must obtain themaker, authenticating witness, ororiginal document through discoveryif that is necessary to "debunk" theevidence.

Perhaps the biggest shock to triallawyers has been a brace of recentcases interpreting an ostensiblyharmless rule (612) in a way thatthreatens a time-honored method ofpreparing lay or expert witnesses:giving the witness some of the casefile before a trial or deposition sothat he may prepare himself. Rule612 provides that the judge mayorder any documents so used to be

Continued on page 290

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Federal Rules of Evidence - Six Years After Continuedfrom page 282

FBA Publications

turned over to the other side for in- spection, and recent cases seem to apply this Rule even to privileged documents. Rule 612 may even be logica11y extended to require dis- closure of anything a witness has looked at during any indefinite period prior to testifying in a deposi· tion or trial, if there is any possibility that it might have influenced his testimony. Thus, lawyers should be very careful if they represent a gov· ernment agency or company that has employees or investigators who, as part of their jobs, have wide-ranging access to agency or company files, and who also can be expected to be witnesses in litigation. Under the new Rules, confidentiality of the files may be waived.

There is not space in this article to

examine fu11y the questions which have been briefly noted. Indeed, an in-depth empirical study would be required. But at least some of the more apparent directions are now beginning to be discernible, and some of the questions that should be asked are beginning to present them· selves. 0

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