A Note About the Advisory Notes
Believe it or not, the language of the Federal Rules of Evidence are not always clear (tongue-in-cheek). Assume that a lawyer is reading one of the Federal Rules of Evidence to determine whether a piece of evidence will be admissible or excluded at trial—for example, whether testimony from another trial can be admitted at a current trial. The relevant rule calls for admissibility if a party’s “predecessor in interest” shared a similar motive and opportunity to develop the testimony of the witness at the previous trial—but query what “predecessor in interest” means. As a matter of statutory interpretation, most practitioners of the law faced with such ambiguity would seek clarification from a source of legislative intent. The source of legislative intent for the Federal Rules of Evidence are the Advisory Committee Notes (“the notes”). The notes are a good source for determining the meaning of an evidence rule.
The notes were drafted by the Advisory Committee on Evidence Rules and approved by the Judicial Conference of the United States in 1970. Subsequently, they were approved by the Supreme Court and later were referred to Congress. While the original Federal Rules of Evidence were adopted under Congress’s authority established in the Rules Enabling Act, 28 U.S.C. § 2072, the Advisory Committee notes that accompanied the rules commented on a number of rules that never came into being. As a result, there are many issues one might find in looking to the Advisory Committee Notes for guidance. Some notes are inconsistent with some of the actual Federal Rules of Evidence that were ultimately adopted. Some notes have cross-references to rules that were never adopted or are flat out erroneous. These notes may also contain “typos” that, if read literally, change the meaning of particular notes in a way not intended by the drafters.
Even with these issues in mind, the recently reconstituted Advisory Committee on Evidence Rules have determined that the original Advisory Committee Notes could not be changed by way of rule-making, concluding that the original notes are invaluable legislative history, even if they are misleading in spots.
Nevertheless, we’re happy to provide these notes to you digitally for professionals and non-professionals alike, although we can’t imagine why a non-lawyer would want to access these notes. Please consider supporting our project by donating through PayPal below.