The Superfluous Rules of Evidence

There are few American legal codifications as successful as the Federal Rules of Evidence. But this success masks the project's uncertain beginnings. The drafters of the Federal Rules worried that lawmakers would not adopt the new rules and that judges would not follow them. As a result, they included at least thirty rules of evidence that do not, in fact, alter the admissibility of evidence.

Instead, these rules: (1) market the rules project, and (2) guide judges away from anticipated errors in applying the (other) nonsuperfluous rules. Given the superfluous rules' covert mission, it should not be surprising that the rules' drafters were not transparent about their nature. Instead, the drafters incorporated these rules so seamlessly into the overall project that their evidentiary insignificance goes largely unnoticed. This Essay pulls back the curtain to reveal the superfluous nature of many of the celebrated rules of evidence.

The presence of so many superfluous rules says something interesting about the rules project and sheds light on how the evidence rules should be taught, interpreted, and applied.