EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, March 17, 2011

Article Of Interest: Katharine Traylor Schaffzin's Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence

In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court decided not to overrule Miranda v. Arizona, 384 U.S. 436 (1966), concluding that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." After the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States Courts "restyled" the Federal Rules of Appellate Procedure, the Federal Rules of Criminal Procedure, and the Federal Rules of Civil Procedure, it tackled its latest project:  the Federal Rules of Evidence. The goal in all of these projects has been to makes the Rules more user friendly rather than to enact substantive changes.  But have certain phrases in the Federal Rules of Evidence become part of our courtroom culture such that they are off limits? According to the Advisory Committee on the Rules of Evidence, the answer is "yes." According to the recent article, Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence, 77 Tenn. L. Rev. 849 (2000), by Katharine Traylor Schaffzin of the University of Memphis Cecil C. Humphreys School of Law, the answer is also "yes," but to a lesser extent than posited by the Advisory Committee.

In its proposed Restyled Rules, the Advisory Committee made clear that it intended no substantive change to the existing Rules, issuing the following four-part disclaimer:

The Committee made special efforts to reject any purported style improvement that might result in a substantive change in the application of a rule. The Committee considered a change to be "substantive" if any ofthe following conditions were met:

a. Under the existing practice in any circuit, the change could lead to a different result on a question of admissibility (e.g., a change that requires a court to provide either a less or more stringent standard in evaluating the admissibility of particular evidence);

b. Under the existing practice in any circuit, it could lead to a change in the procedure by which an admissibility decision is made (e.g., a change in the time in which an objection must be made, or a change in whether a court must hold a hearing on an admissibility question);

c. It alters the structure of a rule in a way that may alter the approach that courts and litigants have used to think about, and argue about, questions of admissibility (e.g., merging Rules 104(a) and 104(b) into a single subdivision); or

d. It changes a "sacred phrase" - phrases that have become so familiar in practice that to alter them would be unduly disruptive. Examples in the Evidence Rules include "unfair prejudice" and "truth of the matter asserted." 

Professor Schaffzin's article focuses on the last part of this disclaimer. She begins by laying out four representative proposed phrase changes to existing Rules.  As she notes, to propose these changes, the "the Committee must have determined, first, that the language was not 'familiar in practice,' second, that such amendments would not be 'disruptive,' and, third, that any disruption would not be 'undue.'" I imagine that the phrase change that will be most popular among Evidence professors is the one to Federal Rule of Evidence 801(d)(2), which currently deems an "Admission by party-opponent" as "not hearsay."  Under the restyled Rule, an "Opposing party's statement" would now be deemed "not hearsay."

So, why would this change be a windfall to Evidence professors? Well, let's say that Dan is charged with murdering Vince outside a downtown restaurant, with the murder allegedly taking place on March 16, 2011 at 6:00 P.M. If Dan confesses to a police officer, "I killed Vince," it is clear that this is currently an "Admission" under Federal Rule of Evidence 801(d)(2), and students grasp this concept fairly quickly.  But let's say that Dan tells his friend on March 17th that he was visiting a friend downtown last night. Or let's say that Dan tells his friend on March 15th that Vince owes him some money.  Or let's say that Dan tells his wife on March 16th at 8:00 P.M. that he has some residue on his hands, and soap just isn't doing the trick. None of these latter three statements look like classic "admissions," but they are for purposes of Federal Rule of Evidence 801(d)(2), which merely requires that: (1) a party made a statement; (2) the other party is offering it against him; and (3) the statement is in some way relevant to trial. Students eventually get this concept, but it usually takes a while because they get tripped up by the word "admission." Under the restyled rule, which covers an "Opposing party's statement," I think that teaching this subject will now be considerably easier.

The same can't, however, be said about other Rules, which the Committee determined contained "sacred phrases." Professor Schaffzin lays out four examples:

(1) The phrase "unfair prejudice" in Federal Rule of Evidence 403;

(2) The phrase "to prove the truth of the matter asserted in Federal Rule of Evidence 801(c);

(3) The phrase "substantially outweighs it prejudicial effect" in Federal Rule of Evidence 609(b); and

(4) The phrase "whether any outside influence was improperly brought to bear upon any juror" in Federal Rule of Evidence 606(b)

So what distinguishes the sacred phrases from the cursed phrases, soon to be excommunicated from the Rules? Well, according to Professor Schaffzin,

The Advisory Committee defined a "sacred phrase" as any phrase that has "become so familiar in practice that to alter [it] would be unduly disruptive." Unfortunately, the Advisory Committee provided no specific protocol for determining when a phrase is "familiar in practice," when a change to a phrase would be "disruptive," or when such a disruption would be "undue." The categorization of any phrase as “sacred,” thus requires the Committee to make three arbitrary determinations.
First, the Advisory Committee must have determined that a phrase was "familiar in practice." The Advisory Committee, however, provided no working definition of this concept. It cited no empirical studies of the bench or bar regarding either group's past or present familiarity with any given phrase....
The next inquiry the Advisory Committee must have conducted, at least implicitly, is whether a change to the language of the Rules would be "disruptive." In answering this question, the best the Committee could hope to do was to predict the answer; again, there were no empirical studies conducted of the bench or bar. Unfortunately, this query is not helpful in narrowing the list of sacred phrases in the Federal Rules of Evidence, because a change to any phrase in the Rules will necessarily cause a disruption among those applying them on a regular basis. Moreover, any change to the Rules will present an inconsistency, at least for a time, between the state and federal rules. Such inconsistency will undoubtedly create some level of disruption.
Finally, the Advisory Committee must have determined whether the alteration of any phrase would cause a disruption that is "undue." Again, the Advisory Committee presented no standard by which it would judge the level of any anticipated disruption. To make such a determination, the Advisory Committee would have to predict that changes to one phrase would disrupt practice more or less than changes to another. Therefore, any such determination would be arbitrary.

Professor Schaffzin then asserts that while some phrases in the existing Rules indeed cannot be amended (e.g., "undue prejudice" in Rule 403), others can and should be restyled. She gives three examples:

-In Federal Rule of Evidence 801(c), "to prove the truth of the matter asserted" could be amended to read "to prove the truth of the statement made by the declarant" or "to prove the truth of the declarant's statement." (My note: This is another one that often trips up Evidence students, and I think that the suggested change makes the concept of hearsay much easier for students to understand);

-In Federal Rule of Evidence 609(b), "substantially outweighs it prejudicial effect" could be amended to read "substantially outweighs its unfair prejudice (My note: This corrects the inconsistency between Rule 403 and Rule 609 that often trips up students, lawyers, and judges.  It seems clear that all convictions admitted under Rule 609 are prejudicial, but it is only the unfair prejudice created by these convictions that is concerning);

-In Federal Rule of Evidence 606(b), "whether any outside influence was improperly brought to bear upon any juror" could be amended to read "whether any outside influence was improperly imposed upon any juror (My note: I agree with this as well. What does "brought to bear" mean? Apparently, it means "to bring into operation or effect." Let's assume that a bailiff makes an improper comment to the jury (see my post tomorrow). Clearly, the bailiff improperly imposed an influence on the jury. But was this influence "brought to bear" on the jury? I guess so, but obviously the analysis is more confusing).

I think that Professor Schaffzin strikes the right tone in her article, praising the Committee for some obvious improvements to the Federal Rules of Evidence while at the same time asking if we might even be able to push a bit farther. I asked Professor Schaffzin about what led her to write the article, and she responded:

I decided to write the piece to expand on a comment I submitted to the Advisory Committee on Evidence Rules when the restyled rules were released for public comment.  Needless to say, the Committee did not further amend its draft based on my comments, but it has invited me to address it as a panelist at its Symposium on the restyled rules next fall at its Annual Meeting.  I'm currently working on an empirical study of how the restyled rules will be received and applied.

Obviously, the article is a must read for anyone teaching Evidence or anyone who will be practicing under the new Rules starting (presumably) at the end of the year. Also, Professor Schaffzin will be guest blogging here as the restyled Rules come closer to fruition and I'm sure will have many interesting insights into what effects the restyling might have.



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