Evidence myopia: the failure to see the Federal Rules of Evidence as a codification of the common law.

AuthorWeissenberger, Glen


We interpret the legislatively enacted Federal Rules of Evidence as we would any statute.(1) We live in an "age of statutes."(2) Consequently, when a court encounters a body of rules resulting from a process that concluded with legislation, the court may find it hard to resist the conclusion that the rules are subject to the principles used to interpret statutes. The Supreme Court of the United States is no exception. Describing the Federal Rules of Evidence ("Federal Rules" or "Rules") as a "legislative enactment,"(3) the United States Supreme Court has stated that a court should use "traditional tools of statutory construction" in interpreting the Federal Rules.(4) With minor variation, the same analysis appears in virtually every case rendered by the Supreme Court interpreting the Federal Rules of Evidence.(5) Although the Supreme Court has not metaphorically joined the terms "tool" and "construction" in every pertinent case, it has been consistent in treating the text of the Rules as the text of a statute.(6) As a result, the Supreme Court has interpreted the Federal Rules of Evidence with principles drawn from the extensive and elusive body of law applicable to statutory construction. Despite the Court's consistency in commencing with the premise that the Federal Rules of Evidence are a statute, evidence scholars have noted a remarkable inconsistency in the way in which the Court actually interprets the Federal Rules of Evidence.(7) Indeed, the Supreme Court has failed to advance a manageable set of guiding interpretational principles for the Federal Rules of Evidence despite numerous efforts at construction.(8) The Court's difficulty in articulating a coherent hermeneutic for construing the Federal Rules of Evidence may be traceable to the inherent incompatibility of the text of the Rules and customary principles of statutory construction.(9)

When the United States Supreme Court claims that the Federal Rules of Evidence must be interpreted by use of the "traditional tools of statutory construction," its statement is likely to be treated as inviolable.(10) Taking the Supreme Court's "tool" metaphor seriously has led many evidence scholars to the ineluctable next step of sorting through and selecting which "tools" of statutory construction should apply.(11) This exercise inevitably results in an examination of the various schools of thought regarding the construction of statutes, extracting the most attractive or pertinent features from those schools, and then forging a unique theory for interpreting the Federal Rules of Evidence.

Participants in the recent scholarly debate concerning the interpretation of the Federal Rules of Evidence are evidence professors who appear to have an irresistible compulsion to revisit the issue.(12) Although several scholars have published more than one article on the subject, the most recent and most orchestrated synthesis of earlier scholarship on the interpretation of the Federal Rules is the product of Professors Imwinkelried, Scallen, and Taslitz, each of whom is a major participant in the debate focusing on the proper interpretational approach to construing the Rules.(13) In what might be described as a debate struggling to find a conflict, Professors Imwinkelried, Scallen, and Taslitz have each advocated an interpretive scheme that draws upon established theories for construing statutes. In his latest contribution to the debate, Professor Imwinkelried summarily cites five schools of thought that he derived from literature applicable to statutory' construction: plain meaning, legal process, textualism, practical reasoning, and politically realistic hermeneutics.(14) Sifting through common ground and seeking to find harmony with Professors Scallen and Taslitz, Professor Imwinkelried has endeavored to embrace certain aspects of the practical reasoning model endorsed by Professor Scallen as well as certain elements of the politically-realistic hermeneutics model supported by Professor Taslitz.(15) Professor Imwinkelried nevertheless ultimately concludes that "Professors Scallen and Taslitz undervalue the importance of the text of the Federal Rules."(16) In response, Professors Scallen and Taslitz express "frustration" with Professor Imwinkelried's position and argue that his conclusion that the text of the Federal Rules of Evidence deserves primary importance simply begs the question.(17) Their inquiry, rather , is to find guidance in principles pertaining to statutory construction when the text fails to supply an answer.(18)

Distilled to its essence, this recent exchange on the interpretation of the Federal Rules of Evidence among Professors Scallen, Taslitz, and Imwinkelried appears to focus on the appropriate balance between text and extrinsic sources in interpretening a particular statute.(19) Although interesting, this debate, like most other treatments of the subject, faces a fate of unsatisfactory conclusions from the start because it proceeds from the wrongminded premise that the Federal Rules of Evidence are a statute.(20) Professors Imwinkelried, Taslitz, and Scallen each unquestioningly embrace the premise established for them by the Supreme Court, and each is led into a maze of literature on the interpretation of statutes.(21)

Admittedly, one must disavow hierarchical thinking and challenge pronouncements by the United States Supreme Court in order to approach the subject of the interpretation of the Federal Rules of Evidence from a more defensible intellectual point of departure. As this Article seeks to demonstrate, however, some iconoclasm may well foster a better way of thinking about a body of evidence rules. Ultimately, the purpose of this Article is to challenge the Rules-as-statute premise on historical and policy bases, and then to redirect the discussion in a more constructive fashion. In challenging the Rules-as-statute premise, this Article first examines the consequences of treating the Federal Rules of Evidence as a statute, canvassing the existing scholarly debate on the issue. It then turns to the historical and analytical reasons for concluding that the Federal Rules of Evidence possess a unique identity that is distinct from that of a typical statute. This Article then focuses on the developmental history of the Federal Rules of Evidence and examines this creation of the Rules as a process of codifying the common law. The remainder of the Article seeks to illuminate the hermeneutical consequences of treating the Federal Rules of Evidence as a codification of the common law.


    The issue of whether the Federal Rules of Evidence are a typical statute to be construed with the "traditional tools of statutory construction" is not new to this author.(22) Admittedly, some may have difficulty embracing my earlier challenges to the notion that the Federal Rules of Evidence should be construed with principles applicable to statutory interpretation because of one indisputable historical fact: The Federal Rules of Evidence were brought into existence through a process that concluded with legislation.(23) Consequently, in an age of statutes, one may find it somewhat counterintuitive to conclude that principles of statutory interpretation should not apply to the Federal Rules of Evidence.(24)

    In earlier work on this subject, I advanced several arguments that sought to demonstrate that the Federal Rules of Evidence should not be subject to the principles of statutory construction.(25) For the sake of completeness, I will restate briefly those arguments here. First, the Federal Rules of Evidence were developed by a multi-branch process in which the dominant participant was the judicial branch.(26) Congress's role in regard to most of the Rules was primarily to review and ratify the product of a coordinate branch of government.(27) Consequently, under a separation of powers theory, the principle of legislative supremacy does not comport with the unique process that produced the Federal Rules of Evidence.(28) This argument is supported by the recognition that statutes typically involve broader subjects than the Federal Rules of Evidence and have audiences beyond judges and lawyers.(29) Moreover, statutes typically originate in Congress(30) and are not designed by a distinct coordinate branch of government to operate internally within that distinct branch.(31)

    In addition, the nature of Congress's participation in the adoption of the Federal Rules of Evidence belies the notion that coherent conceptions of legislative intent stand behind the text of the Rules. Congress's role in the rulemaking process differs substantially from its traditional role in enacting statutes and, consequently, the passive enactment of Rules drafted largely by the judicial branch does not comport with any realistic conception of a legislature's typical function in creating statutes.(32) In the context of the Federal Rules of Civil Procedure, this reality has long been recognized. In a dissenting opinion joined by Justices Douglas, Black, and Murphy, Justice Frankfurter made the following, essentially indisputable, observation about the Federal Rules of Civil Procedure:

    Plainly the Rules are not acts of Congress and can not be treated as such. Having due regard to the mechanics of legislation anti the practical conditions surrounding the business of Congress when the Rules were submitted, to draw any inference of tacit approval from non-action by Congress is to appeal to unreality.(33) On a substantive level, this multi-faceted argument suggests that the principle of separation of powers, which supports judicial deference to the legislative branch, is misplaced in the context of the Federal Rules of Evidence. Consequently, the typical techniques used to interpret statutes, many of which are derived from judicial deference to legislative supremacy, do not logically apply to the Rules.(34)

    A second...

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