Re-chunking the Federal Rules of Evidence

Criminal Law Bulletin Vol. 56 No. 2, 2019

Elon University Law Legal Studies Research Paper Forthcoming

14 Pages Posted: 12 Dec 2019 Last revised: 17 Jan 2020

Date Written: December 1, 2019

Abstract

The rules governing the admissibility of evidence can be a confounding maze of directives. To say the Federal Rules of Evidence are confusing begs the question of why the current arrangement of Articles and Rules is used. Despite multiple amendments, many organizational questions remain. For example, why is impeachment included in multiple articles in the rules, and not given its own article? Why is witness memory left to multiple areas as well? Why is hearsay parsed the way it is, where the rules designate some utterances that meet the hearsay elements as not hearsay, and other utterances as reliable hearsay, but in multiple ways?

This commentary reimagines a new iteration of some of the Articles and Rules using a different organizing structure or schema. The purpose of the re-chunking is not to change substantive outcomes – although that is very tempting as well – but to allow for better understanding and application.

The reconfiguration is rooted in neuroscience. According to neuroscientists, memory and recall are neither photographic nor permanent. Given these limitations, learning strategies are needed, especially given the number of rules and their organization.

Chunking is a useful tool, especially when dealing with learning and applying knowledge. As one commentator has noted, “Chunking refers to the strategy of breaking down information into bite-sized pieces so the brain can more easily digest new information.” Chunking is often used to organize large amounts of information.

Acquiring deep, chunked knowledge is emblematic of how learners become expert in a subject. Such expert learners use chunking to create more effective schemas or structures to facilitate learning and application. In fact, experts and novices use schemas alike throughout each day and in all areas of life. The new evidentiary schema below regroups the Articles and Rules specifically to create alignments for better affinity, memory and flow.

The revisions apply to both the overall ‘forest’ and the specific ‘trees’ of Evidence Law. A deep understanding of the rules requires knowledge of the big picture as well as the details. The big picture generally is a good place to start when analyzing evidence issues.

This Introduction is followed by background information about educational neuroscience and the history of the Rules of Evidence. A realignment of some of the Articles and Rules is then offered, as well as a brief conclusion.

Suggested Citation

Friedland, Steven, Re-chunking the Federal Rules of Evidence (December 1, 2019). Criminal Law Bulletin Vol. 56 No. 2, 2019, Elon University Law Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3501599 or http://dx.doi.org/10.2139/ssrn.3501599

Steven Friedland (Contact Author)

Elon University School of Law ( email )

201 N. Greene Street
Greensboro, NC 27401
United States

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