The Advisory Committee on the Federal Rules of Evidence met on October 17 and 18, 1994 in the Thurgood Marshall Judiciary Building in Washington, D.C. The following members of the
Committee were present:
Circuit Judge Ralph K. Winter, Jr., Chairman
Circuit Judge Jerry E. Smith
District Judge Fern M. Smith
District Judge Milton I. Shadur
Federal Claims Judge James T. Turner
Chief Justice Harold G. Clarke
District Judge David S. Doty
Professor Kenneth S. Broun
Gregory P. Joseph, Esq.
James K. Robinson, Esq.
Professor Stephen A. Saltzburg
Peter G. McCabe, Esq.
Mary F. Harkenrider, Roger Pauley and David Karp, representing the Department of Justice
Professor Margaret A. Berger, Reporter
Hon. Alicemarie H. Stotler, Chair, Standing Committee on Rules and Practice
John K. Rabiej, Administrative Office
Peter McCabe, Administrative Office
Joe S. Cecil, Federal Judicial Center
Professor Leon Whinery
Judge Winter called the meeting to order at 8:30 a.m. He
reported on the June 1994 meeting of the Standing Committee on
Rules of Practice and Procedure. At that meeting, the Standing
Committee responded as follows to actions taken by the Evidence
Committee at its May 1994 meeting:
Because of pending action on the Crime Bill, the Standing
The Standing Committee rejected the amendment the
Evidence Committee had proposed to Rule 1102(b).
The Standing Committee adopted the Evidence Committee's
recommendation that our tentative decision not to amend
certain rules be made public, and that comment on these
rules should be solicited. An announcement to that effect
has been circulated, and a hearing will be held in New York
on January 5, 1995 if persons wish to comment.
Judge Winter further reported that the Evidence Committee
will meet next in San Diego on January 9 and 10, 1995, and will
perhaps meet again on May 4-6, 1995. The Committee approved the
minutes of the previous meeting held on May 9 and 10, 1994.
The Committee then turned to the provisions in the Violent
Crime Control and Law Enforcement Act of 1994 (Crime Bill) that
affect the Rules of Evidence.
Rules 413-415. The Committee first turned to Rules 413-415
which were conditionally passed by Congress with the proviso that
if the Judicial Conference makes contrary recommendations within
150 days after the Act's effective date, the rules will not take
effect if both Houses of Congress enact changes within 150 days
thereafter. These rules make evidence that a person committed
prior acts of sexual assault or child molestation admissible in
specified criminal and civil proceedings.
Judge Winter made a number of preliminary comments about the
rules. He reminded the Committee that it had evinced no interest
in a prior version of these rules at the fall 1993 meeting. With
regard to legislative history, he noted that statements about
Rules 413-415 in this Congress were made after the Crime Bill had
passed. The proponents of the rules now state that Rule 403 and
the hearsay rules would continue to apply. Many of the comments
the Administrative Office received on the rules point out,
however, that the language seems to make other evidentiary rules
inapplicable although the defendant's rebuttal evidence would be
subject to the existing rules. Numerous comments were received;
those from non-politicians were overwhelmingly unfavorable.
Proponents of the Crime Bill provisions do not like the
propensity rule in general, and reject all time limits that might
restrict the admissibility of prior acts. Opponents argue that no
empirical evidence supports the proposition that prior sexual
offenders are more likely to repeat their acts than other
criminals; that the defendant is enormously prejudiced when such
evidence is admitted; and that the jury will be diverted and
confused by what will be mini-trials about disputed prior acts.
In the federal courts, 80-90% of the cases in which these rules
would apply involve Native Americans. Judge Winter also advised
the Committee that if it decided to rewrite the rules, any
accompanying Note would have to be drafted after the meeting and
circulated to Committee members via Fax.
Roger Pauley argued that even in the absence of legislative
history, it is clear from looking at the structure of other rules
using "is admissible" language that Rule 403 would apply to these
rules as well. He mentioned Rules 402, 410, 608(a)(2), 1004,
609(e) and 1003. Judge Winter replied that a reading of these
other rules persuaded him that their language did not make a case
for Rule 403 applying to the Crime Bill provisions.
The Committee decided by straw vote that it did not wish to
leave Rules 413-415 in their present form. Members of the
Committee expressed concern about ambiguity, potential
constitutional infirmities, style, and inconsistency with
existing Federal Rules. The Committee discussed at length whether
it should rewrite the rules to make substantive changes or
whether it should instead redraft the rules so as to better
effectuate the stated aims of its principal sponsors. The
Committee adopted the latter view after members stated that they
feared that inserting restrictions, such as requiring proof of
the prior act by "clear and convincing" evidence, would not pass
Congress. The Committee also agreed, however, at the suggestion
of Professor Broun, that it would make a short, diplomatic
statement to the Standing Committee that the Evidence Committee
did not agree with the substance of Rules 413-415.
The Committee agreed that the contents of all three rules
belonged in present Rule 404 as an exception to the prohibition
against using evidence to show that a person had acted in
conformity with his or her character. The Committee thought it
essential to clarify the applicability of Rule 403 balancing, and
other evidentiary rules such as those governing hearsay. The
Committee further decided that the rule should specify the
factors that determine probative value in connection with Rule
403 balancing so as to makes the courts' task easier when
construing these rules. It was agreed that the Note to the rule
should point out that other Rule 403 factors apply as well.
After the Reporter submitted a redraft incorporating these
suggestions, other issues arose. The Committee realized that some
additional changes would have to be made in Rule 404, as well as
in Rule 405, so as to enable a party to respond to propensity
evidence about prior acts of sexual assault or child molestation.
In a civil case, for instance, a defendant who denies that he
ever committed the prior acts ought to be able to introduce
evidence opinion or reputation evidence. The Department of
Justice had no objection to these changes.
The Committee was also concerned that the reference to state
law might open the doors to evidence of conduct such as
consensual homosexual activity that is not criminal pursuant to
federal law. The formula selected by the Committee does expand
the scope of the rules in the Crime Bill slightly in that it
would potentially allow evidence of prior acts committed outside
the United States to be admitted. The Committee felt, however,
that the availability of Rule 403 balancing would provide the
trial court with adequate discretion to exclude evidence in those
instances in which a court concluded that the place in which the
prior act occurred had a major impact on the evidence's probative
The Committee also agreed to make the time limit on notice
in criminal proceedings consistent with the notice provision that
already exists in Rule 404(b), and to eliminate time limits with
regard to civil cases so as not to interfere with discovery and
disclosure provisions in the Federal Rules of Civil Procedure.
All voting members of the Committee were in favor of
adopting the proposed changes to Rules 404 and 405; the
Department of Justice abstained. The amended rules with an
accompanying Note will be forwarded to the Standing Committee.
Confidential Communications Between Sexual Assault Victims
and Their Counselors. The Crime Bill also contains a provision
requiring the Judicial Conference to study whether the Federal
Rules of Evidence should be amended to ensure that the
confidentiality of communications between sexual victims and
their counselors will be adequately protected in federal courts.
No time limit for completing this study is in the Crime Bill, but
the Attorney General has been directed to report to Congress
within one year on measures that the states have taken to protect
the confidentiality of these types of communications. Mary
Harkenrider suggested that the Committee might wait for the
Attorney General's study to be completed. Judge Winter appointed
a subcommittee consisting of Judge Fern M. Smith, Mary
Harkenrider, Gregory Joseph, Kenneth Broun and the Reporter to
consider the Committee's response.
Rule 407. The Committee discussed at length the advisability
of amending Rule 407 so as to impose a uniform rule throughout
the circuits with regard to the admissibility of evidence of
subsequent remedial measures in products liability cases.
Ultimately, the Committee agreed to forward to the Standing
Committee an amendment that extends Rules 407's ban to products
liability cases. The Committee rejected a special provision for
recall evidence. The amendment also clarifies when "the event"
occurs that triggers application of the rule. The Committee also
approved a Note to be forwarded to the Standing Committee.
Rule 103. The Committee spent considerable time debating
whether Rule 103 should be amended to clarify whether waiver of
appellate review occurs if the losing party fails to renew at
trial an issue that had been raised in limine. The Committee with
one negative vote agreed that there should be such a rule. It
developed a default rule (a new subdivision (e)) that alerts
counsel to the need to make clear that unless the record on the
in limine motion indicates that the court's determination is
final, counsel must raise the question anew at trial. The
amended rule with an accompanying Note will be forwarded to the
Article VII. The Committee discussed both the Reporter's
draft and Professor Broun's draft of possible revisions to
Article VII. The Committee decided to defer further action on
this Article in light of the recency of the Supreme Court's
decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. and the
case law that is beginning to develop in response to the opinion.
Other rules. The Committee agreed to add Rules 406, 605, and 606 to the list of rules that it has tentatively decided not to amend.