Publication year2020
Vol. 33 No. 6 Pg. 28
Utah Bar Journal
December, 2020

November, 2020

Are The Advisory Committee Notes To Judicial Rules Always Advisable?

A Case Study of Rule 804(3) of the Utah Rules of Evidence and Why its Committee Note Should be Disregarded.

Jeffrey G. Thomson, Jr.


Fifteen years ago the Utah Supreme Court noted, “There has been significant debate regarding what weight should be afforded advisory committee notes to judicial rules.” Burns v. Boyden, 2006 UT 14, ¶ 18 n.6, 133 P.3d 370. It is a debate that has played out on the national stage in the United States Supreme Court. Compare Tome v. United States, 513 U.S. 150, 160–63 (1995) (Kennedy, J., concurring), and id. at 167–68 (Scalia, J., concurring).[1] After a brief summary of that debate, the Utah Supreme Court concluded “that, although not authoritative, the advisory committee notes to the Utah Rules of Evidence merit great weight in any interpretation of those rules.” Boyden, 2006 UT 14, ¶ 18 n.6.

Yet just four years ago the Utah Supreme Court stated that “Advisory Committee Notes are not law. They are not governing rules voted on and promulgated by this court. They set forth only the advisory committee’s views of our rules. And although they may provide helpful guidance, they cannot override the terms of the rules themselves.” In re Larsen, 2016 UT 26, ¶ 31, 379 P.3d 1209. Indeed, three years ago the Utah Supreme Court and the Utah Court of Appeals both “reiterate[d] that district courts are bound by the language of [the] rule[s]” of evidence. State v. Lowther, 2017 UT 34, ¶ 41, 398 P.3d 1032; State v. Thornton, 2017 UT 9, ¶ 46, 31 P.3d 1016; Strand v. Nupetco Assocs. LLC, 2017 UT App 55, ¶ 4, 397 P.3d 724 (“Courts are, in short, bound by the text of the rule.”).

What happens, then, when a rule’s advisory committee note contradicts the rule’s actual text?[2] Does it still merit “great weight” in interpreting that rule?

This article considers these questions through the illustrative lens of Rule 804(b)(3) of the Utah Rules of Evidence known as the statement against interest exception to the rule against hearsay. Referencing a 2011 amendment to that rule, this article provides a case study of conflict in what the advisory committee note says the amended rule means and in what the rule’s actual post-amendment text says. And, just as the Utah Supreme Court in In re Larsen, 2016 UT 26, 379 P.3d 1209, repudiated a committee note that conflicted with one of the rules, this article concludes that where an advisory committee note and a rule’s text disagree, the rule’s text should prevail. Thus, as it pertains to Rule 804(b)(3) of the Utah Rules of Evidence, courts and parties should disregard that rule’s advisory committee note.

Rule 804(b)(3)’s Statement Against Interest

Prior to 2011, the statement against interest exception to the evidentiary rule against hearsay read:

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:


A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Utah R. Evid. 804(b)(3) (2011).

Notably, before 2011, where the theory of evidence admissibility under this rule rested on the declarant’s statement against his or her penal interest and if it was being offered to “exculpate the accused” in a criminal proceeding, the offering party had the additional requirement of showing that the hearsay was supported by “corroborating circumstances [that] clearly indicated[ed] the trustworthiness of the statement.” Id.

This corroborating circumstances requirement, however, did not apply if the hearsay was offered “for inculpatory use.” Ronald N. Boyce & Edward L. Kimball, Utah Rules of Evidence 1983 – Part III, 1995 UTAH L. REV. 717, 808–13 (1995). Thus, the requirement of corroboration most often applied to criminal defendants seeking to admit an unavailable declarant’s statement against interest in the hopes of casting doubt on the defendant’s own guilt. E.g., State v. Gentry, 747 P.2d 1032, 1038 (Utah 1987). By contrast, if the government offered a declarant’s inculpatory statement against, say, a codefendant, the government only had to show that the statement was inculpatory. The corroboration requirement did not apply to the government’s use of the statement.

The Rule’s Amendment and the Advisory Committee Note

In 2011, however, “the rules [of evidence] were restyled….” State v. Lucero, 2014 UT 15, ¶ 12 n.5, 328 P.3d...

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