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Week of October 19, 1998

Evidence Code Cries Out for More Than Cautious Tinkering


Paul R. Rice

Professor Daniel Capra, reporter to the Judicial Conference Advisory Committee on the Federal Rules of Evidence, recently justified the committee's "go slow" and "minimal revisions" approach to managing rules changes, explaining that amendments are proposed only when "severe conflicts," "substantial inconsistencies," or "grave inefficiency or unfairness" exist.

As a day-to-day management philosophy, the approach--which he described in a National Law Journal article--may be reasonable. Unfortunately, it has been inconsistently employed and fails to accommodate the evidence code's long-term needs.

For example, last year the committee moved, without substantive change, the residual hearsay exceptions in Rules 803(24) and 804(b)(5) to a new rule number, 807. No apparent problems existed that were addressed by the move. They also added a new clause to the admissions rule, 801(d)(2), to permit what the Supreme Court has already sanctioned (using the content of a statement to determine its admissibility). Likewise, the new clause prohibits what the Supreme Court recently declined to address, but what few, if any, courts had attempted--using only the content of a statement as a basis for determining its admissibility. While this latter amendment may have been both necessary and appropriate, it is evidence that the committee is using its go-slow policy as an excuse for ignoring more pressing problems.

Professor Capra demeans the capabilities of the members of the Advisory Committee by arguing that amending the rules could have "unintended consequences: It could result in extensive litigation over changes that were intended to be stylistic only."

If this is a realistic problem, it raises a question about the wisdom of shifting this function of code maintenance from Congress to the Judicial Conference through the Rules Enabling Act. A major reason for that delegation of authority was that the members of the Advisory Committee would bring the depth and breadth of experience, expertise, and wisdom to the decision-making process. If they cannot be relied on to draft clear revisions, the delegation is fatally flawed.

Today's evidence code is laden not only with the problems of "inelegant drafting" mentioned by Professor Capra, but also with many substantive deficiencies the Advisory Committee apparently finds too "marginal" and insignificant to address directly, thereby perhaps upsetting "settled practices and expectations." You be the judge.

The first types of deficiencies are fundamental issues that have gone unaddressed since the enactment of the rules 25 years ago. These include such things as no rules being promulgated to address bias evidence, privileges, and judicial notice of legislative facts and law.

The second deficiencies are the inconsistencies that exist throughout the code. These include:

Provisions that are inconsistent with underlying principles of a rule (the definition of hearsay in Rules 801(a) & (c) is inconsistent with the problems creating the need for the rule);
Constitutional rights that are inconsistently incorporated into the rule (sporadically inserted and defined in a way that is inconsistent with judicial interpretations (Rules 803(8) and 804(b)(1));
Provisions that are inconsistent with case law because judges are systematically ignoring them (Rules 803(8)(B) and 301);
Rules that are given interpretations that are inconsistent with their purposes (Rule 1006);
Rules that have been inconsistently classified (Rule 801(d) and other exceptions not premised on reliability); and
Rules that are inconsistent with the nature of our adversarial system and the roles of its participants (Rule 703).

The range of unattended issues within the code are, of course, much broader and deeper than these few illustrations. The inadequacy of the Advisory Committee's go-slow, minimal revision policy is illustrated in particular by the most recent revisions it has proposed to Rules 702 and 703.


Rule 702 controls the determination of a witness's expertise and the adequacy of the basis of his opinions. It provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

This provision was interpreted by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Corp., 509 U.S. 579 (1993), as rejecting the "general acceptance in the relevant science" test previously followed by virtually all courts.

The committee did not address fundamental issues such as whether scientific evidence should have to pass a scientific standard of reliability (often as high as 98 percent) in order to be admissible in proceedings where culpability is being determined by a preponderance of the evidence, and draft new rules that separately address witness qualification, adequacy of factual bases, and acceptability of principles, methodologies, and applications. Rather, the committee merely proposed a codification of the skeletal outlines of the Supreme Court's interpretation of a rule the committee itself is responsible for writing.

The committee is packing into the existing rule the standards for screening everything and defining those standards with platitudes that give little or no direction to judges, such as "testimony . . . sufficiently based upon reliable facts," "testimony [that] is the product of reliable principles," and "methods reliably [applied] to the facts." The Supreme Court's interpretation of a poorly written rule does not define the parameters of how expert testimony should be screened. Contrary to their normal procedures, this rule should be rewritten from scratch.

The committee's proposals for Rule 703 are the most inadequate of all. Rule 703 permits expert witnesses to rely on inadmissible evidence in forming their opinions: "If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence."

This provision is problematic because it permits the expert witness to advocate conclusions that he would not be willing to reach if he were the finder of fact and was denied the use of the same evidence. This difficulty is further complicated by the fact that many courts will not permit the expert to identify the inadmissible facts upon which he has relied.

When courts have allowed the expert witness to identify the inadmissible underlying facts, a limiting instruction is always given to the jury. Such instructions warn jurors that the information being heard is not admissible, and may not be used for substantive purposes. Instead, they are told, the information may be used only for the purpose of assessing the value of the expert's opinion.

Skirting all substantive issues so as to maintain the structure and content of the current rule, the Advisory Committee's proposal addresses only a procedural detail--when the inadmissible evidence relied on by the expert can be disclosed to the finder of facts.

The problems posed by Rule 703 existed in a practice that preceded the evidence code. Under the common law, a medical doctor was permitted to rely on a patient's statements of medical history and causation, if either was crucial to diagnosis or treatment, to testify to the conclusions that he had formed in reliance on the truth of those statements, and to repeat the statements in his testimony along with his opinions.

But jurors were instructed that they could rely only on the doctor's opinions, not on the truth of statements that the doctor himself had relied on. The jury could use only those statements to assess the value of the doctor's opinions. It was never explained how it was logical for the jurors to accept the doctor's opinion for truth without also accepting the truth of the statements on which it had been based.

When the Federal Rules of Evidence were promulgated, this practice was eliminated in Rule 803(4), Statements for Purpose of Medical Diagnosis and Treatment. That rule made the patient's statements of medical causation and medical history admissible for truth through the medical expert witness's testimony if they were reasonably pertinent to the doctor's diagnosis or treatment. Inexplicably, however, as this problem was being solved for medical doctors, the Advisory Committee was creating the same problem for all other expert witnesses in Rule 703.

Rather than resolving this problem through a solution similar to Rule 803(4), the Advisory Committee is attempting to "fix" it by creating a standard for deciding when the expert witness should be permitted to delineate these inadmissible facts. (Keep in mind that the jurors still can't accept the truth of what they are permitted to hear.)

The committee proposes adding an additional sentence to Rule 703: "If the facts or data are otherwise inadmissible, they shall not be disclosed to the jury by the proponent of the opinion or inference unless their probative value substantially outweighs their prejudicial effect."

This solution creates more problems than it solves. First, the finder of facts has no way of weighing the value of the opinion if he cannot hear all of the facts on which it is based. Second, if the jury is persuaded to accept unjustified conclusions (from facts in the record) because the expert advocated them, the jury will not be serving as the sole independent finder of facts. Third, this permissible reliance on inadmissible evidence that the jury may not hear has changed the expert's role from one who assists the finder of facts in drawing conclusions based on the record before it, to one who advocates conclusions based on the truth as only the expert knows it.

In applying the Advisory Committee's proposed balancing test to determine whether inadmissible evidence can be disclosed, the presiding judge presumably will examine the inherent reliability of the evidence. If that determination is positive, to the point where the value of the evidence is so high that it "substantially" outweighs the danger of unfair prejudice, that determination should not make the inadmissible evidence admissible for the same substantive use by the jury. Admitting the evidence in this context is particularly compelling since the expert witness is present and presumably able to explain how she evaluated the evidence and concluded that it was sufficiently trustworthy to be relied upon.

The Advisory Committee's refusal to take a broad view of its management responsibility has had consequences aside from preserving some quixotic provisions that are fast becoming part of evidence law's unalterable bedrock. First, it has encouraged Congress to bypass the Rules Enabling Act by directly enacting legislation.

The most recent example of this was the bill to restructure the Internal Revenue Service. That legislation created a new privilege, a tax adviser privilege, into which the Advisory Committee had no input. It had no input because the evidence code has no specific privilege rules since all specific rules were deleted when Congress enacted the code.

Consequently, the new privilege could reasonably be seen as not constituting a revision of the evidence code. While the Advisory Committee, of course, is not directly responsible for congressional actions that deny it formal input in the deliberative process, Congress' unwillingness to employ the procedures that it so carefully set into place in the Rules Enabling Act may reflect a negative attitude about the process.

The second, and more important, consequence of the Advisory Committee's inactivity has been the loss of uniformity among the state and federal evidence codes. This is particularly reflected in the draft revisions to the Uniform Rules of Evidence that the Evidence Drafting Committee of the Uniform Laws Conference has promulgated. Unaddressed issues in the Federal Rules of Evidence have produced different rules when addressed in other forums, and this includes the evidence codes of a number of states.

The Rules Enabling Act established a means through which intelligent, coordinated, and meaningful change in the Federal Rules of Evidence could efficiently be accomplished. The process it established for amending practice rules was an appropriate alternative to the cumbersome legislative process.

The credibility of this process, however, is wedded to the Federal Judicial Conference and its Advisory Committee having a more realistic understanding of both their long-term and short-term responsibilities under a codified system of rules, and pursuing those responsibilities with open minds and accessible agendas. After 25 years, it's time for a meaningful reassessment of the entire code--not from the limited perspective of making it work, but with the goal of making it better. The Advisory Committee must take the time to do this before Congress delegates the task to someone else.

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