The Advisory Committee on the Federal Rules of Evidence met
at the United States Courthouse at Foley Square on May 9 and 10,
1994. The meeting commenced on May 9 at 8:30 a.m. A copy of the
agenda is attached.
Hon. Ralph K. Winter, Jr.
Hon. Wayne D. Brazil
Hon. Jerry E. Smith
Hon. Fern M. Smith
Hon. Milton I. Shadur
Hon. James T. Turner
Professor Margaret A. Berger, Reporter
Professor Kenneth S. Broun
Gregory P. Joseph, Esq.
John M. Kobayashi, Esq.
Roger Pauley, Esq., Justice Department
Dean James K. Robinson
Professor Stephen A. Saltzburg
Joe Cecil, Federal Judicial Center
Professor Daniel Coquillette, Reporter to
the Standing Committee on Rules and Practice
Mary Harkenrider, Esq., Justice Department
Peter McCabe, Administrative Offices
John Rabiej, Administrative Offices
Professor Leon Whinery
Judge Winter started the meeting by discussing the Supreme
Court's action with regard to Rule 412 -- it promulgated the
criminal rule but rejected the civil rule. A copy of the Chief
Justice's letter explaining the Court's action is attached to
these Minutes. Judge Winter expressed concern about the ability
of the Evidence Committee to carry on its work if the Supreme
Court will reject any amendment of a rule with which it has
hitherto dealt. In addition, Judge Winter explained to the
Committee that the House of Representatives wants guidance since
the Senate version of the crime bill contains a different version
of Rule 412 than that submitted to the Supreme Court.
The Committee discussed the problem for a considerable time.
Comments were made about the fact that there had been no inquiry
by the Court as to the reasoning of the Committee, and, indeed
there seems to be no mechanism for such inquiries. The Committee
had been aware of the Court's Meritor opinion and had indicated
in the proposed Note that the balancing test would be responsive
to developments with regard to sexual harassment.
Mr. Rabiej suggested that the Committee could send the rule
back to the Standing Committee and submit a memo explaining its
position -- that the proposed rule is not beyond the Committee's
power under the Rules Enabling Act. A number of members also
suggested that the Committee might approach the conferees on the
crime bill. A further suggestion was to recast the balancing
test for civil cases as a Rule 403 test, as at least part of the
problem seems to be that some members of the Court do not like
the proposed rule. Judge Winter thought, however, that adopting
a rule 403 approach would amount to no rule for civil cases.
Ultimately, the Committee agreed that the proposed rule did
not overrule Meritor since it was a fact specific rule that would
require taking that opinion into account, and that it did not
exceed the bounds of the Rules Enabling Act. Dean Coquillette
proposed that a concrete communication should be made to the
Standing Committee commenting on Meritor and advising the
Committee about what the Advisory Committee thinks should be
done. Dean Coquillette also noted that the Rules Enabling Act
amendments of 1988 specifically included evidentiary rules within
the ambit of rulemaking.
The Committee agreed to resubmit Rule 412 to the Standing
Committee with some modifications to the Note explaining why
there is no Rules Enabling Action problem. If Rule 412 is mooted
by congressional action, the Standing Committee should be asked
if it could inquire into the Supreme Court's position through
other channels and advise us about the implications for the work
of the Evidence Committee.
Rule 1102 Amendment.
Wayne Brazil reported that the Civil Rules Committee thought
the amendment in subdivision (b) a good idea but ultra vires.
The Civil Committee agreed that the Judicial Conference should
recommend such a change to Congress for action. Stephen
Saltzburg reported that the Criminal Rules Committee had found
that the amendment was technically all right, and that it would
be a waste of time to proceed other than as proposed in the
amendment. After some discussion the Committee voted to approve
Rule 1102(b). Jim Turner pointed out that the proposed title for
Rule 1102 was misleading and that it should refer only to
amendments. His suggestion was approved by the Committee.
The Committee discussed Rule 404 and the various solutions
that had been suggested in the Reporter's memorandum: 1) a
rejection of the Huddleston opinion, 2) deferring the
prosecution's other crimes evidence when offered to proved intent
until it is clear that the defense intends to controvert this
issue, and 3) making the rule subject to a more stringent
balancing test. Reasons advanced by members of the Committee for
not changing the rule ranged from "political suicide," a feeling
that there was nothing to be fixed, and that this was a
problematic area that could not be improved. Although there were
a number of votes for considering some of the proposed solutions
further, none of the proposed solutions commanded a majority and
consequently it was agreed that the rule should not be amended
for the time being.
The Committee also decided that it did not have to amend
Rule 405 to refer to Rule 412 because the rule does not cause any
problems at this time despite the existence of Rule 412.
The Committee spent a good deal of time discussing numerous
fact patterns pursuant to Rule 408. Professor Saltzburg thought
that the rule worked well; other members of the Committee were
not sure that this was always the case but saw no way of amending
the rule to eliminate problem cases. Mr. Kobayashi thought that
taking out the third and fourth sentences of the rule might help,
and he agreed to try to work out a version for consideration at
the next meeting.
The Committee considered the advisability of amending Rule
611 so as to make it clearer that when a proponent of a witness
is permitted to examine by cross-examination because the witness
is hostile the opponent should not necessarily be allowed to
cross-examine the witness. Mr. Joseph felt that this was not a
problem and that most judges understood the issue. The Committee
agreed that there was no need to amend the rule.
The Reporter had suggested to the Committee either
abrogating the rule of United States v. Luce, or taking a broader
view of the rule and revising it so that a party who raised an
objection through an in limine motion would not in all
circumstances have to renew the objection at trial. The
Committee agreed that there might be some aberrant cases in which
parties did not realize that they would forfeit their right to
appeal. The Reporter was asked to look at this issue in greater
depth, and to collect the cases in each circuit that deal with
Reports from the Civil and Criminal Rules Committee.
Wayne Brazil Reported on the recent meeting of the Advisory
Committee on the Federal Rules of Civil Procedure. He reported
that class actions were under study, that it was agreed not to go
forward with amendments of Rule 68, and that the special master
rules were being considered. Mr. Saltzburg reported that the
Criminal Rules Committee had agreed to place video conferencing
on hold, and that it was pushing forward with its amendment to
Rule 16 requiring the prosecution to disclose the names and
statements of witnesses seven days prior to trial. The Justice
Department is opposed to this amendment.
Although at its last meeting the Committee approved by straw
vote the concept of extending Rule 407 to product liability
cases, after further discussion the Committee was undecided on
how to proceed. Some members thought the rule worked well and
that the courts were really following state practice. An issue
arose as to whether the rule should be amended so as to redefine
"event" so as to adopt the minority Third Circuit view that
repairs made after manufacture or sale but before the accident
being sued on would also be excluded. The Committee was still
undecided about how to treat recall evidence and expressed doubts
about whether all recalls should be treated the same way, or
whether a distinction should be made between a recall ordered by
a governmental agency, and a "voluntary" recall initiated by the
defendant in compliance with a statutory scheme. The Committee
decided that it wanted to see many more cases on Rule 407 before
it decided whether the rule should be amended.
The Committee discussed a number of Article VII problems,
such as the impact of Daubert, whether Daubert should be
codified, whether Daubert should be extended beyond the
scientific evidence area, whether Rule 702 should be amended to
require reliable evidence, and whether portions of Rule 703 that
seem to govern admissibility should be combined with Rule 702.
Professors Broun, Saltzburg and the reporter will all present
versions of amended Article VII rules at the next meeting of the
Judge Shadur wants a sentence added to the Article VII rules
to provide that the court should not qualify a witness as an
expert in the hearing of the jury.
The Committee discussed some of the general problems about
hearsay rules and some specific issues with regard to admissions.
It was suggested that a personal knowledge requirement should be
specifically added to the rules on authorized and vicarious
admissions. The Committee also considered whether it should
amend Rule 801(d) (2)(E) to reject the Supreme Court's ruling in
Bourjaily v. United States which eliminates the need for
independent evidence of a co-conspirators statement. The
Committee also discussed the recent declaration against penal
interest case currently pending in the Supreme Court.
Judge Winter suggested that we should ask the Standing
Committee for permission to advise the Bar that the Evidence
Committee has decided not to take action with certain rules, and
to treat this non-action as the equivalent of the draft of a
proposed amendment to a rule. The consequence might be public
hearings with regard to the rules that the Committee has decided
not to amend. Judge Winter thought that such an unusual way of
proceeding was warranted because no Evidence Committee exited for
the past twenty years; consequently, the Bar does not yet realize
that there is a body to which suggestions for amendments should
The Committee agreed to meet next on October 17 - 18, in Washington, D.C.