The Golden Anniversary of the 'Preliminary Study of the Advisability and Feasibility of Developing Uniform Rules of Evidence for the Federal Courts': Mission Accomplished?

Abstract:     
“Preliminary Study of the Advisability and Feasibility of Developing Uniform Rules of Evidence for the Federal Courts” is the title of the famous 1961 report prepared by a committee appointed by then Chief Justice Earl Warren. The Chief Justice tasked the committee to address two questions: (1) whether the state of the common law of Federal evidence was satisfactory; and (2) if not, whether the federal judiciary should adopt court rules codifying evidentiary doctrines. The committee critiqued the common law and urged the promulgation of court rules. The committee’s report eventually led to the adoption of the Federal Rules of Evidence in 1975. Fifty years have now elapsed since the committee submitted its report.

The golden anniversary of the report is an opportune time to evaluate the impact of the Evidence rule making project. The first part of this essay reviews the objectives identified in the committee’s report and investigates whether, in the intervening half century, those objectives have been achieved. The essay concludes that in five different respects, the adoption of the Federal Rules of Evidence has made evidentiary doctrines more accessible to federal trial judges and litigators. Although gains have been realized in the past 50 years, the second part of the essay notes that there have been bumps in the road. Some of the problems are traceable to the shortsightedness of the committee and the later Advisory Committee. Other problems were caused by the committees’ political naivete. The essay concludes that to maximize the gains from rule making projects, future committees must take a longer view and proceed with greater political caution and sensitivity.

Number of Pages in PDF File: 33

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