42 Pages Posted: 9 Jun 2010 Last revised: 12 Jun 2010
Date Written: June 11, 2010
On August 11, 2009, the Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States released its Preliminary Draft of Proposed Style Revision of the Federal Rules of Evidence for public comment. The public comment period ended on February 16, 2010. If the Advisory Committee on Evidence Rules fails to revise it in light of public comment, this draft could be enacted as early as December 1, 2011.
This project to amend the Federal Rules of Evidence is the final stage in the Standing Committee’s effort to comprehensively restyle all federal rules, including the Rules of Appellate Procedure, the Rules of Criminal Procedure, and the Rules of Civil Procedure. The goal of this restyling project, like that of the preceding projects, is to amend the Federal Rules of Evidence (the “Rules”) to make them more easily understood and to achieve consistency in style and terminology. In keeping with those goals while drafting these proposed amendments, the Advisory Committee endeavored to avoid any restyling that would result in a substantive change in the application of any rule.
One type of alteration that the Advisory Committee deemed “substantive” was any amendment to a “sacred phrase.” The Committee defined “sacred phrase” to mean any phrase that has “become so familiar in practice that to alter [it] would be unduly disruptive.” The Committee sought to avoid any style improvements changing a “sacred phrase.”
The proposed amendments to the Rules do indeed retain certain archaic and often unclear language; it is likely that these phrases remain because the Advisory Committee deemed them “sacred.” The proposed amendments, however, also leave several other clauses “familiar in practice” on the cutting room floor. The Committee provided no standard by which it measured the “familiarity” of a particular phrase or the level at which a “disruption” became “undue.” Even a comparison of those phrases which the Committee amended and those which it retained leaves one no more able to discern any rationale or pattern explaining why the Committee deemed some phrases “sacred” and others something less than sacred. The Committee’s classification of phrases as “sacred” was arbitrary.
The proposed restyled language of these not-so-sacred phrases is, nonetheless, an improvement over the existing Rules. They are more easily understood, they achieve consistency of terminology, and they more accurately reflect historic interpretations of the Rules. Meanwhile, the archaic, confusing, and inconsistent language of the sacred phrases remains unimproved despite the restyling effort.
Because the proposed amended Rules preserve the archaic, unclear, and inconsistent language of those phrases the Advisory Committee arbitrarily deemed “sacred,” it should not retain any phrase as “sacred.” It should, instead, retain only those phrases that are easily understood, accurately reflect judicial application of the Rules, are consistent in terminology, and which cannot otherwise be improved.
Suggested Citation: Suggested Citation
Schaffzin, Katharine Traylor, Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence (June 11, 2010). Tennessee Law Review, Vol. 77, No. 4, 2010; University of Memphis Legal Studies Research Paper No. 1. Available at SSRN: https://ssrn.com/abstract=1622811