§ 1.07 THEMES IN THE FEDERAL RULES

• Jurisdiction: United States

§ 1.07. THEMES IN THE FEDERAL RULES

One of the purposes listed in Federal Rule 102, the "purpose and construction" provision, is the ascertainment of truth.⁸⁴ Although the truth-seeking (accurate fact-finding) function of the trial can be considered its main goal, it is not the only one. The law of privileges, for example, precludes the admissibility of evidence that may be both relevant and reliable.⁸⁵ Practical considerations, such as the consumption of time, are also a counterweight.⁸⁶

Admissibility favored. Even when the ascertainment of truth is the goal, how to achieve that goal is often a matter about which reasonable people may disagree. Here, the federal drafters adopted several guiding principles. First, the Federal Rules are biased in favor of admissibility.⁸⁷ When the drafters came to a split in the common law doctrine, they typically adopted the more permissive approach in terms of admissibility, even if it was the minority view.⁸⁸ At other times, the drafters adopted both a majority and minority position.⁸⁹ This theme is most pronounced in the rules on hearsay and expert testimony and is based on a view that juries are capable of dealing with most types of evidence and would reach better decisions with more, rather than less, information.⁹⁰

Trial judge discretion. Another theme is judicial discretion.⁹¹ Although many trial lawyers want fixed rules, which they argue make evidence law more predictable, the drafters believed that too many unforeseen contingencies can arise at trial, and therefore the judge must be given some leeway to address admissibility issues in the context of a particular trial. Rule 807, which recognizes a residual hearsay exception, is perhaps the best example.

Jury-control. Another theory worth considering is the conventional wisdom that much of the law of evidence is designed to keep information from the jury, a position that can be traced to Professor Thayer, who wrote his classic text at the turn of the 20th century.⁹² Professor Nance has challenged this view, arguing that many evidence rules are designed to force attorneys to introduce the "best evidence." In short, attorney-control, not jury-control, is the central principle underlying the rules of evidence.⁹³ For example, is hearsay excluded because the jury cannot evaluate its reliability, or because lawyers should be compelled to introduce live witnesses.

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^[84] See also Fed. R. Evid. 611(a) ("court should exercise reasonable control over the mode...