50 Plain Language

Michigan Bar Journal November 2009

By Joseph Kimble

One Last Example from the 

Proposed New Federal Rules of Evidence

his is the fourth and final article in my series on drafting examples from the restyled Federal Rules of Evidence (published for comment at www.uscourts.gov/

rules). I have tried to illustrate the improvement by 

pulling out a few current rules, briefly describing their deficiencies, and showing you the restyled rules for comparison. Thus, I 

noted 33 deficiencies in Rule 609(a)–(b), 31 in Rule 612, and 18 

in Rule 806, and below I’ll note 28 in Rule 404(a). Perhaps that’s 

enough to make the case.

Before looking at 404(a), I’d like to do something different—

and possibly surprising. I’d like to acknowledge some drafting 

flaws in the restyled rules. As I said in the first of these articles, 

nobody would claim that the restyled rules are perfect; you can 

always go back and find ways to improve on the improvements. 

Of course, any large-scale project like this will involve countless 

decisions and many compromises. And on some matters, the Advisory Committee on Evidence Rules had to decide whether to follow the best drafting practices in the face of other considerations.

So what could have been fixed in an ideal world, if we had 

been starting from scratch? We might have changed the structure 

of various restyled rules in several ways.

For one thing, the numbering in Rules 803 and 902 is unlike 

the numbering in the other restyled rules: you’ll see that, as in the 

two current rules, 803 and 902 follow the rule number with another number—803(6), for instance. To achieve consistency, that 

could have been 803(a)(6) or (b)(6), although creating the new 

(a) or (b) might have required a little artfulness.

For another thing, those same two rules, along with 801(d), 

804(b), and 901(b), use a hybrid format. Technically, they are set up 

as items in a list, but they look like subparts with headings. (Compare, for instance, Rule 807: it has two subparts, two subdivisions, 

each with a heading, and then a list without headings in subdiviT

sion (a). That’s the norm in the restyled rules—the items in a list 

do not carry headings.) But the anomaly may be justifiable because the “lists” in those five rules are so long and complicated.

Another formatting anomaly: Rule 502 has a freestanding, undesignated, uncitable piece at the beginning, before the first subdivision. It should have been subdivision (a), but the Advisory Committee had reason to not adjust the version passed by Congress.

Finally, in Rule 801(d)(2), Rule 803(5), (6), (7), (8), (18), and 

(22), and Rule 804(a), you’ll find so-called dangling text—a sentence that follows an enumerated vertical list. Although some 

drafting experts find this practice unobjectionable and even useful, the guidelines for drafting federal rules discourage it. Perhaps 

some of these danglers can still be fixed.

So much for structural imperfections—which hardly diminish 

the great leap forward taken by the restyled rules. And no doubt 

the public comments will lead to a number of further improvements in wording. Meanwhile, let’s take up our last example.

‘‘Plain Language’’ is a regular feature of the Michigan Bar Journal, edited by Joseph Kimble for the Plain English Subcommittee of the Publications and Website Advisory Committee. Contact 

Prof. Kimble at kimblej@cooley.edu. For a list of previous articles, 

go to www.michbar.org/generalinfo/plainenglish/columns.cfm. 

2009 is a notable year for the column.

of the column

Anniversary

25th

Current Rule 404(a)

Character Evidence Not Admissible to

Prove Conduct;1 Exceptions; Other Crimes

(a) Character evidence generally. Evidence of a person’s character or a2

 trait of character3 is not admissible for 

the purpose of 4

 proving action in conformity therewith5

on a particular occasion, except:

(1) Character of accused.6

 In a criminal case, evidence of a pertinent trait of character7

 offered8 by an 

accused,9

 or by the prosecution to rebut the same,10 or if 

evidence of a trait of character11 of the alleged victim of 

the crime12 is offered13 by an accused and admitted under Rule 404(a)(2),14 evidence of the same trait of character15 of the accused offered by the prosecution;16

(2) Character of alleged victim.17 In a criminal 

case,18 and subject to the limitations imposed by19 Rule 

412, evidence of a pertinent trait of character20 of the alleged victim of the crime offered by an accused,21 or by 

the prosecution to rebut the same,22 or evidence of a character trait of peacefulness of the alleged victim23 offered24

by the prosecution in a homicide case to rebut evidence 

that the alleged25 victim was the first aggressor;

(3) Character of witness.26 Evidence of the character of a witness,27 as provided in Rules 607, 608, 

and 609.28
Plain Language 51

November 2009 Michigan Bar Journal

Drafting Deficiencies

1. This title does more than just describe what the rule is about; it

announces that the rule will generally prohibit character evidence 

to prove conduct. That’s not necessarily bad, just inconsistent with 

other titles.

2. Technically, the a makes this read Evidence of a person’s...a trait of 

character. No good. Drop the second a.

3. An unnecessary prepositional phrase. Make it character trait. More 

substantively, what is the practical difference between “character” 

and “character trait”? Could a witness simply testify that someone is 

a bad man, without more? The restyled rule keeps both ideas, but 

should it?

4. For the purpose of is a multiword preposition. Make it to prove.

5. Legalese.

6. An unnecessary prepositional phrase? Accused’s Character is probably not very speakable. But far more often than not, a possessive is 

better than an of-phrase.

7. Again, make it character trait. Also, recall that (a) refers to both 

“character” and “trait of character.” Why both items there, but only 

the latter here?

8. A passive-voice verb, and none of the exceptions to preferring the 

active voice seem to apply here. To make it active—the defendant 

may offer—we need to restructure paragraphs (1), (2), and (3) into 

complete sentences.

9. Converting to the active voice eliminates by an accused. Another 

prepositional phrase bites the dust.

10. Legalese.

11. Once again, make it character trait. Also, paragraphs (1) and (2) use 

trait of character four times, then character trait the fifth time. But 

after saying character trait once, why not shorten to trait in all the 

later uses? We understand that that means “character trait.”

12. Make it alleged crime victim. And note the four of-phrases in the 15 

words beginning with or and ending with crime. Quite a feat.

13. Passive voice.

14. An unnecessary cross-reference that better organization would cure. 

The organization is seriously flawed. Here’s why. Paragraph (1) purports to be about the accused’s character, but in the middle we get a 

long condition having to do with a crime victim’s character. That’s 

what paragraph (2) is about—the victim’s character. Hence the repetition in (2) of evidence of a...trait of character of the alleged victim 

of the crime offered by an accused. The restyled rule fixes the back-andforth by creating three discrete categories in (2)(A), (B), and (C): the 

defendant’s offering the defendant’s own trait, and the prosecutor’s 

responding; the defendant’s offering the victim’s trait, and the prosecutor’s responding; and the prosecutor’s offering the victim’s trait 

of peacefulness in special circumstances.

15. See note 11.

16. For the record, paragraph (1) uses 15 prepositional phrases. The comparable, repetition-free parts of the restyled rule—believe it or not—

use 3.

17. Don’t change this heading to a possessive unless you also change the 

heading for paragraph (1). Parallelism rules.

18. In a criminal case also appears at the beginning of paragraph (1). The 

restyled rule uses the phrase once—a sign of better organization.

19. Change imposed by to in.

20. See note 11.

21. As pointed out in note 14, almost all the words beginning with evidence are repeated from paragraph (1). So we get another passivevoice verb and another blast of prepositional phrases.

22. Legalese.

23. Make it the alleged victim’s trait of peacefulness.

24. Passive voice. The be-verb is implied: evidence...[that is] offered.

25. No need to repeat alleged.

26. See note 17.

27. One more time—make it a witness’s character.

28. This paragraph, like (1) and (2), doesn’t read well with the introductory language in (a): Evidence of a person’s...trait of character is not 

admissible...except:...Evidence of the character of a witness, as provided in Rules 607, 608, and 609. The three paragraphs are technically items in a list (using the hybrid format mentioned earlier), but 

the list is ill-formed.

The restyled rule improves on the current rule in three basic 

ways. First, it restructures the rule. We now have certain exceptions in a criminal case and exceptions for a witness. And the 

exceptions in a criminal case are broken down into three categories. Second, those categories are set out in a list that reads 

smoothly with the introductory language and uses strong parallel 

constructions. Third, the restyled rule dispenses with the slew of 

passive-voice verbs and prepositional phrases that bedevil the 

current rule.

Restyled Rule 404(a)

Character Evidence; Crimes or Other Acts

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove 

that on a particular occasion the person acted in 

accordance with the character or trait.

(2) Exceptions in a Criminal Case. The following 

exceptions apply in a criminal case:

 (A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is 

admitted, the prosecutor may offer evidence 

to rebut it;

 (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged crime 

victim’s pertinent trait, and if the evidence is 

admitted, the prosecutor may:

 (i) offer evidence to rebut it; and

 (ii) offer evidence of the defendant’s same 

trait; and

 (C) in a homicide case, the prosecutor may offer 

evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was 

the first aggressor.

(3) Exceptions for a Witness. Evidence of a witness’s 

character may be admitted under Rules 607, 608, 

and 609.
52 Plain Language

Michigan Bar Journal November 2009

Last Month’s Contest

Last month, I invited you to revise current Rule 610. I suggested that 

you use to attack or support in your version, and that you go after 

the unnecessary prepositional phrases and multiword prepositions. 

There are eight prepositional phrases—or six if you take the two 

multiword prepositions (for the purpose of and by reason of ) as 

units. Rule 610:

Evidence of the beliefs or opinions of a witness on matters 

of religion is not admissible for the purpose of showing that 

by reason of their nature the witness’ credibility is impaired 

or enhanced.

The winner is Robert Harvey, former vice president and general 

counsel for DTE Energy Technologies, Inc. His revision (with one 

slight edit) is identical to the restyled rule:

Evidence of a witness’s religious beliefs or opinions is not 

admissible to attack or support the witness’s credibility.

The entries this month raised two good questions. Do we need 

Evidence of ? And do we need or opinions? Just goes to show that 

revision could last forever, although projects must eventually end.

I received one entry that deserves an honorable mention.

Dear Professor Kimble,

As a project for my 8th-grade English class, I decided 

that we would rewrite the rule of evidence for your 

October contest. We discussed what we understood the 

rule to mean and then rewrote it as plainly as possible. 

Besides advocating clear writing, I am trying to get my 

class to see that what they learn in English class is useful 

in the outside world. Thank you for your contest and for 

your consideration.

Rule 610: A witness’s religious beliefs cannot be used 

to challenge or support his or her credibility.

Yours truly,

Barbara Shafer (P34786) and 

the Dearborn Guardian Lutheran 8th grade

A New Contest

I’ll send a copy of Lifting the Fog of Legalese: Essays on Plain

Language to the first person who sends me (kimblej@cooley.edu) 

an “A” revision of current Rule 609(d) on juvenile adjudications. 

The deadline is November 24.

(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court 

may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the 

credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the 

issue of guilt or innocence.

This one’s a little tougher than the previous three. Try using a vertical list.

Joseph Kimble has taught legal writing for 25 years 

at Thomas M. Cooley Law School. He is the author 

of Lifting the Fog of Legalese: Essays on Plain 

Language, the editor in chief of The Scribes 

Journal of Legal Writing, the past president of 

the international organization Clarity, a founding 

director of the Center for Plain Language, and the 

drafting consultant on all federal court rules. He 

led the work of redrafting the Federal Rules of Civil Procedure and the 

Federal Rules of Evidence.