Thursday, December 1, 2011
Restyled FRE 611: Maybe a Passive Court Isn’t a Bad Thing
To render the Federal Rules of Evidence more easily understandable, the Advisory Committee on Evidence Rules, at the suggestion of style consultant Joseph Kimble, sought to eliminate the passive voice from the rules throughout the restyling project. Nonetheless, two examples of the passive voice remain in revised Rule 611(b) and (c). This was no oversight.
Professor Kimble suggested that the Advisory Committee replace the passive with the active voice in Rule 611(b) and (c), as well as throughout the entirety of the rules. The Advisory Committee, however, chose to maintain the passive language in Rule 611(b) (“Cross-examination should not go beyond the subject matter of the direct examination . . . .”) and 611(c) (“Leading questions should not be used on direct examination . . . .”). It deemed the change proposed by Professor Kimble to be substantive and, thus, unrevisable under the restyling protocol.
Its reason for opting to maintain the passive voice was that the changes suggested by Professor Kimble would “shift the focus” of the rule. Specifically, the Committee viewed Rule 611(b) and (c) as advice to practitioners on how not to formulate their questions. By activating the passive voice, the Committee feared that these subsections would instead encourage courts to take more action in regulating the form of questions. Inviting courts to take action where they had not been expressly encouraged to do so in the past was, thus, deemed a substantive change.
In my view, such a change of focus is nearly imperceptible. But the decision to maintain the passive voice in Rule 611(b) and (c) is an excellent example of the scrutiny to which the Advisory Committee subjected each proposed amendment to the Federal Rules of Evidence. Through the restyling project, the Committee so enhanced the readability and consistency of the rules while striking a balance to maintain such subtleties that they have certainly made my job as an Evidence prof. easier.