54 Plain Language

Michigan Bar Journal October 2009

n August, after a three-year project, the completely 

“restyled” Federal Rules of Evidence were published 

for comment. They are available at www.uscourts.

gov/rules. The project’s goal was to redraft the rules 

in a modern, plain-language style—making them clearer, more 

consistent, and more readable—without changing their substantive meaning. An even broader goal has been to make the drafting style consistent throughout all the federal rules. Remember 

that three other sets of rules—Appellate, Criminal, and Civil Procedure—have already been redrafted. In fact, the work began 

more than 15 years ago.

Now, this is the third column I’ve written on the restyled evidence rules. In August and September, I provided a little background on the restyling process, addressed the occasional complaint that the effort is not worth the trouble, and considered 

why our profession has made such a hash of legal drafting for so 

long. Then I set out a current evidence rule, noted the drafting 

deficiencies, and offered the restyled rule for comparison. I’ll do 

it again this month—and again ask you to judge the results.

This month’s example is shorter, so I won’t be able to identify 

as many deficiencies. I noted 33 in August’s example and 31 in 

September’s; this month, only 18, although they include a serious 

ambiguity. See whether you can spot it.

I

By Joseph Kimble

Still Another Example from the 

Proposed New Federal Rules of Evidence

‘‘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 806

Attacking and Supporting Credibility of Declarant1

When a hearsay statement, or a statement defined2 in 

Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant3

 may be attacked, 

and if attacked may be supported,4

 by any evidence which5

would be admissible for those purposes if declarant6

 had 

testified as a witness. Evidence of a statement or conduct by 

the declarant7

 at any time, inconsistent8 with the declarant’s 

hearsay statement,9

 is10 not subject to any requirement11

that the declarant may12 have been afforded13 an opportunity to deny or explain.14 If the party against whom a hearsay statement15 has been admitted16 calls the declarant as a 

witness, the party is entitled to17 examine the declarant on 

the statement as if under18 cross-examination.

Drafting Deficiencies

1. An unnecessary prepositional phrase. Make it the Declarant’s Credibility.

2. There’s no definition in Rule 801(d)(2)(C), (D), or (E).

3. Again, make it the declarant’s credibility.

4. A lot of words for and then supported.

5. Use that, not which, when the relative pronoun introduces a socalled restrictive clause, one that doesn’t simply provide supplemental information but rather is essential to convey the basic meaning. 

Typically, which is correct only if you can insert a comma before it, 

setting off the clause.

6. Why is it the declarant everywhere else? This may seem like a small 

point, but consistency is the first rule of drafting, and the drafter 

who makes small missteps is headed for larger ones.

7. Another unnecessary prepositional phrase. Make it the declarant’s 

statement or conduct.

8. At any time, inconsistent is rather clumsy, and the punctuation doesn’t 

save it. Inconsistent belongs with statement or conduct. We know that 

inconsistent means inconsistent with the statement admitted in evidence, so the with-phrase after inconsistent can go. And the paired 

commas after time and statement aren’t standard; they were probably 

inserted as a makeshift fix for the disruption caused by at any time.

9. A critical ambiguity crops up here. The previous sentence talks about 

two statements: (1) a hearsay statement and (2) a statement described 

in Rule 801(d)(2). But the 801(d)(2) statement is, by the very terms 

of 801(d), “not hearsay.” So when this second sentence of 806 refers 

to a “hearsay statement,” it seems to be referring only to the first “statement” in the previous sentence—a hearsay statement—and not an 

801(d)(2) statement. Was that limitation intended?
Plain Language 55

October 2009 Michigan Bar Journal

Note some of the more obvious improvements in the restyled 

rule below. It uses dashes, rather than commas, for the longish 

midsentence alternative in the first sentence. It smooths out the 

second sentence and states the meaning more directly. (The parallel structure of regardless of when... or whether helps considerably.) It’s a little tighter overall. And most importantly, it fixes the 

ambiguity described in notes 9 and 15. The sentences are longer 

on average than I’d like (33 words), but the other restyled rules 

do better.

10. Another thing that makes this sentence unwieldy: the verb, is, is too 

far from the subject, evidence.

11. Why is this nonrequirement stated so indirectly? Why not the court 

may admit evidence of ...even if . . . ? The restyled rule does it a little 

differently, but along the same lines.

12. Strike may. This whole verb phrase needs reworking.

13. How about given?

14. Deny or explain what? Readers are brought up short. Apparently, the 

drafters didn’t want to use the pronoun it, sensing that the antecedent would be unclear, or to add the inconsistent statement or conduct. 

Trapped with no way out.

15. The ambiguity deepens. By again using hearsay statement, the sentence seems to invoke only the first “statement” in the first sentence. 

See note 9.

16. No need to use the present perfect tense. Make it was admitted.

17. Replace is entitled to with may.

18. Wouldn’t on be more idiomatic—as if on cross-examination?

Restyled Rule 806

Attacking and Supporting the Declarant’s Credibility

When a hearsay statement—or a statement described in 

Rule 801(d)(2)(C), (D), or (E)—has been admitted in evidence, the declarant’s credibility may be attacked, and then 

supported, by any evidence that would be admissible for 

those purposes if the declarant had testified as a witness. 

The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred 

or whether the declarant had an opportunity to explain or 

deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine 

the declarant on the statement as if on cross-examination.

Last Month’s Contest

Last month, I invited you to revise the sentence below from current 

Rule 608(b). I suggested that you start with a strong verb—waive—

and then find a concrete subject.

The giving of testimony, whether by an accused or by any 

other witness, does not operate as a waiver of the accused’s 

or the witness’ privilege against self-incrimination when examined with respect to matters that relate only to character 

for truthfulness.

The winner is Kenneth Treece, a staff attorney with Miller, Canfield, 

Paddock & Stone, who submitted this:

A witness does not waive the privilege against self-incrimination 

by testifying to matters limited to character for truthfulness.

Compare that version with the restyled version:

A witness does not waive the privilege against self-incrimination 

by testifying about a matter that relates only to a character 

for truthfulness.

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 610, set out below. The deadline

is October 26.

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.

Big hint: try using to attack or support in your version. And I hope 

you’ll go after the unnecessary prepositional phrases and multiword 

prepositions. Can you believe how many there are in a single 34-

word sentence?

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.