Federal Rules of Evidence - History

History

The law of evidence governs the proof of facts and the inferences flowing from such facts during the trial of civil and criminal lawsuits. Before the twentieth century, evidence law was largely the product of decisional law. During the twentieth century, projects such as the California Evidence Code and the Uniform Rules of Evidence encouraged the codification of those common-law evidence rules. In 1965, Chief Justice Earl Warren appointed an advisory committee of fifteen to draft the new rules. The committee was composed of lawyers and legal scholars from across the country.

The Federal Rules of Evidence began as rules proposed pursuant to a statutory grant of authority, the Rules Enabling Act, but were eventually passed as statutory laws.

The United States Supreme Court circulated drafts of the FRE in 1969, 1971 and 1972, but Congress then exercised its power under the Rules Enabling Act to suspend implementation of the FRE until it could study them further. After a long delay blamed on the Watergate scandal, the FRE became federal law on January 2, 1975, when President Ford signed the Act to Establish Rules of Evidence for Certain Courts and Proceedings, Pub.L. 93-595, 88 Stat. 1926.; see also Legislative History on the Enactment of the FRE (with links to key documents).

The law was enacted only after Congress made a series of modifications to the proposed rules. Much of the debate on the Rules stemmed from concerns that came to lawmakers' attention due to the Watergate scandal, particularly questions of privilege. Some of the most prominent congressional amendments when Congress adopted the rules included:

• Prior Inconsistent Statement – Rule 801(d)(1)(A): Congress amended the proposed rule so that the "rule now requires that the prior inconsistent statement be given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. The rule as adopted covers statements before a grand jury."

• Privileges – Rule 501: Although the original proposal included thirteen rules providing for various privileges, Congress struck all of them. To guide privileges in the federal courts, Congress adopted Rule 501. The rule specified that except as otherwise provided by Act of Congress or by other federal rules, privileges in the federal courts would be "governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Rule 501 meant that the entire purpose of the FRE (to provide clarity and supersede prior case law) was defeated in the specific context of the law of privileges. Thus, to this day, attorneys practicing in U.S. federal courts must carefully research current case law to determine the contours of available privileges. In contrast, the California Evidence Code, from which the original proposal had been drawn, had expressly codified all evidentiary privileges, so that any further privileges in state courts would have to come from the California State Legislature.

• Impeachment by Conviction – Rule 609(a): The rule specified when a party could use evidence of a prior conviction to impeach a witness. Congress reformed most of Rule 609(a), to specify when a court could exercise discretion to admit evidence of a conviction which was a felony, but that the court must admit the prior conviction if the crime was one involving "dishonesty or false statement."

The Advisory Committee Notes still function as an important source of material courts use to interpret the Rules.

Even though the Federal Rules of Evidence are statutory, the Supreme Court is empowered to amend the Rules, subject to congressional disapproval. However, amendments creating, abolishing, or modifying privileges require affirmative approval by Congress under 28 U.S.C. § 2074.