Advisory Committee on the Federal Rules of Evidence: Tending to the Past and Pretending for the Future?

This Article characterizes the history of the Advisory Committee on the Federal Rules of Evidence as disappointing. It argues that too often, over too long a period of time, the Advisory Committee has neglected its stewardship responsibilities and the blatant inadequacies of the codified evidence rules. As a consequence, significant problems have gone unattended as the Committee waits to see if the judges can solve the problems their rules have created. The article notes that some concepts created in the codified evidence rules have proven to be problematic, if not completely inadequate, but there has been no willingness to re-examine them.

Judicial interpretations of the rules have been inconsistent, and judicial practices have been in conflict with the language of the rules, but little action has been taken to give direction. Because of this track record, Professor Rice argues that the responsibilities of the Committee should not be expanded, as proposed by Professor Broun, by codifying the privilege rules that initially were left to develop under the common law.