Federal Rules of Evidence: Final Article of Series; Summary of Proposed Rule Amendments — No 'Path' For 'Change'

My Last Hoorah!!!: This current article in the Criminal Law Bulletin is the last of 58 articles in total published on Evidence. The series began in 2005. An earlier similar but far less ambitious series of Evidence articles, 59 in total, appeared in the Criminal Law Bulletin from 1980 to 1990. After 45 years as an academic commentator on Evidence and Professor of Law, for ten years at Illinois, followed by 35 years in Miami, I retired from active teaching in May of 2019. I will continue to author the Handbook of Illinois Evidence and the Handbook of Federal Evidence. Summary of Proposed Rule Amendments: Over the course of the 57 prior articles in the current Evidence series, many specific proposals have been put forth to amend the Federal Rules of Evidence along with on occasion the Federal Rules of Civil or Criminal Procedure. These proposed rule changes are contained in rule numerical order at the conclusion of the article. Each proposed amended rule appears with a footnote corresponding to the article from which it is taken. Prospect for Fair Consideration: Over 45 years as an Evidence professor and commentator, along with my service first as Reporter to the Illinois Supreme Court Committee on Rules of Evidence, 1975-78, an unsuccessful effort to adopt rules of evidence in Illinois modelled on the Federal Rules of Evidence, the subsequent successful effort to Accomplish such task where I served as Special Advisor to a new Illinois Supreme Court Committee on rules of Evidence, 2008-2013, as well as my experience as Reporter to the successful effort to adopt rules of evidence by the United States Department of Labor, 1975-1980, together with observation of the rules enabling process as implemented over the years with respect to the Federal Rules of Evidence themselves, leads me to the firm conclusion that Mel Brooks was correct—“It’s good to be the King.” In the context of law reform, if you’re not on the Committee or other entity empowered to act in some capacity toward improvement, change, and especially reform, legal scholarship is about as likely to be influential as dropping a note in a “suggestion” box on the factory floor. If one is not a part and parcel of the establishment, i.e., the King, in New York terms—fuhgeddaboudit!!! Your voice will not be heard. Without a “seat at the table,” published scholarship, as well as judicial authority, moves invariably from the “suggestion” box into the “circular file.” Advisory Committee on Evidence Rules: Not surprisingly, when one looks back at what amendments have actually come forward from the Advisory Committee on Evidence Rules, they can, it is suggested, be characterized as modest improvements at the margin in already accepted noncontroversial areas thus having no real impact on the balance between the prosecution and defense in criminal cases. The Advisory Committee on Evidence Rules, reflecting its makeup of mostly judges, has shown by what it has proposed, what it has not proposed, and even directly in a comment in meeting notes, that it is highly influenced in its decision making by whether the Advisory Committee itself holds a firm conviction that its proposed amendment to the Federal Evidence Rules will sail through the enabling act process and not be subjected to actual Congressional scrutiny. Bold Congressional Action: Of course, the Advisory Committee on Evidence Rules acting pursuant to the rules enabling act is not the only way for evidence rule improvement, change, or especially reform to take place. Congress, with or without prodding from the Department of Justice, can and has enacted amendments to the Federal Rules of Evidence. The most significant subject matter areas of current concern involve the impact of the rules of evidence, particular character propensity evidence in prosecutions for illegal drugs, domestic violence, child molestation, and sexual battery. What are the chances of enactment of legislation that could make successful prosecution of such actions more likely? Zero!!! In the mid 1990’s, Congress added Rule 413-415 to the Federal rules of Evidence which permit now, subject to substantial limitation in practice, propensity evidence in child molestation and sexual battery prosecutions. Congress acted in spite of a Report dated February 1995 by the Judicial Conference of the United States—the Admission of Character Evidence in Certain Sexual Misconduct Cases, indicating unanimous opposition by all relevant actors, i.e., 40 judges, practitioners, and academics, except representatives of the Department of Justice. Moreover, in our current highly polarized society, Congress has substantial difficulty agreeing on the time of day, much less criminal justice reform, whether that be areas stated above or addressing the opioid epidemic. Prediction: Going forward given the makeup of the Advisory Committee on Evidence Rules as mostly judges, the political left leaning defense oriented academic community, and a polarized Congress, the prospect of change in evidence rules that strike a better, fairer balance between the prosecution and the defendant’s constitutional right to a fair trial thus facilitating prosecution of drug, domestic violence, child molestation, and sexual battery cases in the foreseeable future is once again—“Zero”.