Document Type

Article

Publication Date

2024

Publication Title

George Mason Law Review

Abstract

The Federal Rules of Evidence have been pronounced dead. Indeed, the Federal Rules of Evidence have recently been declared dormant, stagnant, frozen, lethargic, and yes, deceased. In The Living Rules of Evidence, 170 U. Pa. L. Rev. 937 (March 2022), Professor Alexander Nunn claims that the Rules are lifeless, incapable of any meaningful change, and littered with anachronistic and even dangerous standards and provisions. To blame for the moribund state of the Federal Rules of Evidence is the bureaucratic and complex federal rulemaking process that requires amendments to traverse multiple constituencies in a multi-year process before taking effect. As a result of this cumbersome structure, Professor Nunn declares meaningful evidentiary progress through rulemaking an impossibility. The antidote to this sorry state of affairs is to be found in the “Living Evidence” theory that returns to the glory days of common law development of evidentiary reform and empowers federal judges to create revolutionary evidence standards fit for the twenty-first century. By emphasizing the normative justifiability of evidentiary standards⎯and even by elevating considerations of justifiability over fidelity to rule text⎯federal judges can purportedly accomplish the sweeping change that the Federal Rules of Evidence so desperately need. To borrow the legendary words apocryphally coined by Mark Twain, reports of the death of the Federal Rules of Evidence have been greatly exaggerated. “Living Evidence” theory depends upon two critical assumptions: that the Federal Rules of Evidence are irretrievably stagnant and that federal judges can breathe them back to life by emphasizing the perceived modern justifiability of evidentiary outcomes over fidelity to rule text. This Article dismantles both, first offering a careful look at the statutorily prescribed rulemaking process by which the Rules are reformed under the Rules Enabling Act and highlighting the significant reforms ushered in through that process ⎯reforms that have improved the rights of the criminally accused, protected the interests of sexual assault victims, clarified the standards for admitting expert opinion testimony, and transformed the doctrine of privilege waiver to account for the modern realities of electronic discovery. It then demonstrates the analytical defects of “Living Evidence” theory, revealing the grave threat to important separation of powers interests posed by judicial rejection of the Federal Rules of Evidence in pursuit of outcomes perceived to be normatively “justifiable.” It reveals that evidentiary standards are the product of complex policy determinations constitutionally entrusted to the democratic rulemaking process and are not empirically derived scientific truths that the federal judiciary may uniformly intuit. This Article emphasizes the variability and unpredictability sure to characterize judicial determinations of normative justifiability in the evidence space that would allow “Living Evidence” theory to be mobilized in service of multifarious, and perhaps nefarious, aims. This Article further highlights the faulty mechanics of “Living Evidence” in action that doom the theory as unrealistic and unworkable. It demonstrates that the Federal Rules of Evidence would become a paper tiger powerless to curb an onslaught of ill-conceived reforms were the federal judiciary to heed the call to deemphasize fidelity to the Rules. Finally, the Article explores some of the specific reforms that “Living Evidence” theory promises to deliver, revealing the incoherent and systemically bankrupt patchwork of advances it threatens to produce.

Volume

33

First Page

1

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