Acts of emotion: Analyzing congressional involvement in the federal rules of evidence

Catholic University Law Review

Volumn 58, Issue 1, 2009, Pages 153-197

  Teter, Michael ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 64249151843     PISSN: 00088390     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (344)

1. Laura Gaston Dooley, Essay, Our Juries, Our Selves: The Power, Perception, and Politics of the Civil Jury, 80 CORNELL L. REV. 325, 337 (1995) (stating that "the Federal Rules of Evidence rest on an assumption that the judge must protect the jury from certain evidence lest the jurors allow their emotional reaction to overpower their intellectual obligation to decide the case according to the judge's instructions");
2. Wallace D. Loh, The Evidence and Trial Procedure: The Law, Social Policy, and Psychological Research, in THE PSYCHOLOGY OF EVIDENCE AND TRIAL PROCEDURE 13, 15 (Saul M. Kassin & Lawrence S. Wrightsman eds., 1985) ("The need for any rules ... is said to rest on three rationales: practical necessity, promotion of certain social values, and distrust of the jury.");
3. see also JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE 123 (Atheneum 1963) (1949) ("But there are other rules of exclusion which, no matter what their origin, have been perpetuated primarily because of the admitted incompetence of jurors.").
4. See Michael S. Ellis, Comment, The Politics Behind Federal Rules of Evidence 413, 414, and 415, 38 SANTA CLARA L. REV. 961, 963 (1998).
5. 28 U.S.C. § 2071-77 (2000).
6. See id.
7. For a general summary of the process, see James C. Duff, Federal Rulemaking, http://www.uscourts.gov/rules/proceduresum.htm (last visited Oct. 22, 2008).
8. Congress created the Conference of Senior Circuit Judges in 1922 to serve as the chief administration and policymaking body for the United States Courts. Judge Robert H. Hall, Federal Circuit Judicial Councils: A Legislative History and Revisions Needed Today, 11 GA. ST. U. L. REV. 1, 2 (1994).
9. In 1948, Congress changed the name of this body to the Judicial Conference, but preserved the administration of the United States Courts as its fundamental purpose. Id.
10. 28 U.S.C. § 2074(b) (2000).
11. Symposium, The Politics of [Evidence] Rulemaking, 53 HASTINGS L.J. 733, 739 (2002) [hereinafter Politics of Evidence Symposium] (comments of Judge Fern Smith).
12. See infra Part IV.B.
13. During just the past two sessions of Congress there have been efforts to codify the attorney-client privilege (Attorney-Client Privilege Protection Act of 2007, S. 186 110th Cong. (2007);
14. H.R. 3013 110th Cong. (2007)), the doctor-patient privilege (Patients' Privacy Protection Act of 2005, H.R. 6371, 109th Cong. (2006)), the parent-child privilege (Parent-Child Privilege Act of 2005, H.R. 3433, 109th Cong. (2005)), and several efforts to amend hearsay rules related to forfeiture for wrongdoing.
15. See Violent Crime Control Act of 2007, S. 1860, § 723 110th Cong. (2007); H.R. 3156, 110th Cong. § 723 (2007); Fighting Gangs and Empowering Youth Act of 2007, S. 990, 110th Cong. § 310 (2007); H.R. 1692, 110th Cong. § 310 (2007); Gang Deterrence and Community Protection Act of 2007, H.R. 880 § 113, 110th Cong. (2007).
16. Following the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Congress also considered a series of legislative proposals relating to the expert witness rules - bills that "were so confused that they tried to both codify Daubert and codify Frye [Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)] simultaneously." Politics of Evidence Symposium, supra note 6, at 742 (comments of Gregory Joseph) (footnote omitted).
17. See, e.g., Politics of Evidence Symposium, supra note 6, at 741-43 (comments of Paul Rice and Gregory Joseph) (expressing opposing views regarding the extent of congressional involvement in amending the Federal Rules of Evidence);
18. Katharine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law, 110 HARV. L. REV. 563, 563 (1997) (criticizing Congress's amendment to the Federal Rules of Evidence as related to the addition of Rule 413);
19. James Joseph Duane, The New Federal Rules of Evidence on Prior Acts of Accused Sex Offenders: A Poorly Drafted Version of a Very Bad Idea, 157 F.R.D. 95, 95 (1994) (finding "most troublesome" the method by which the Rules were amended).
20. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 320935(a), 108 Stat. 1796, 2135-37 (adding FED. R. EVID. 413-15).
21. Congress added subsection (b) to Federal Rule of Evidence 704. Act of Oct. 12, 1984, Pub. L. No. 98-73, § 406, 98 Stat. 1837, 2067-68 (amending FED. R. EVID. 704).
22. See John Leubsdorf, Presuppositions of Evidence Law, 91 IOWA L. REV. 1209, 1248-9 (2006); see also supra note 1.
23. See supra note 9.
24. Pub. L. No. 73-415, 48 Stat. 1064 (1934) (codified at 28 U.S.C. § 2071-77 (2000)).
25. 21 CHARLES ALAN WRIGHT & KENNETH w. GRAHAM, JR., FEDERAL PRACTICE AND PROCEDURE: FEDERAL RULES OF EVIDENCE § 5002, at 71-72 (2d ed. 2005).
26. Id. § 5002, at 75.
27. The Rules Enabling Act mandated that the Judicial Conference authorize appointment of the Standing Committee. See 28 U.S.C. § 2073(b) (2000).
28. The Civil Rules Advisory Committee offered only two rules touching on evidence law - what are now Civil Rules 43 and 44, which, respectively, set forth a general principle of inclusion and established a rule for proving an official record. See 10 JAMES WM. MOORE, MOORE'S FEDERAL PRACTICE § 5[5], at 30-31 (2d ed. 1996).
29. Id. §9.
30. See, e.g., AM. LAW INST., MODEL CODE OF EVIDENCE (1942);
31. JOHN HENRY WIGMORE, a POCKET CODE OF THE RULES OF EVIDENCE IN TRIALS AT LAW (1st ed. 1910);
32. THE NAT'L CONFERENCE OF COMM'RS ON UNIF. STATE LAWS, UNIFORM RULES OF EVIDENCE (1953).
33. 21 WRIGHT & GRAHAM, supra note 15, § 5006, at 171.
34. Id. §5006, at 179-80.
35. Id. §5006, at 180.
36. Id. §5006, at 186-87.
37. Id. §5006, at 187, 193 n. 130.
38. Id. § 5006, at 187. The Conference's Revised Draft was published at 51 F.R.D. 315 (1971).
39. 21 WRIGHT & GRAHAM, supra note 15, § 5006, at 191.
40. Id. § 5006, at 193.
41. This was done over the dissent of Justice William Douglas, who contended that the substance of the proposed rules exceeded the scope of the Rules Enabling Act, and the Court lacked the competency to pass them. Id. § 5006, at 193 & n.129.
42. STEPHEN A. SALTZBERG ET AL., FEDERAL RULES OF EVIDENCE MANUAL 4 (9th ed.2006).
43. Id.
44. Act of Mar. 30, 1973, Pub. L. No. 93-12, 87 Stat. 9.
45. 21 WRIGHT & GRAHAM, supra note 15, § 5006, at 197.
46. The proposed rules of privilege were struck from the final version of the Rules. Id. § 5006, at 200.
47. Id.
48. Id.;
49. see also Act of Jan. 2, 1975, Pub. L. No. 93-595, 88 Stat. 1926.
50. The Supreme Court disbanded the Advisory Committee on Evidence following submission of the proposed rules to Congress in 1973. See SALTZBERG ET AL., supra note 29, at 7. In response to repeated calls from the legal community, the Judicial Conference reestablished the Advisory Committee in 1993.
51. Id.
52. Politics of Evidence Symposium, supra note 6, at 738 (comments of Judge Fern Smith). Judge Smith was the chair of the Advisory Committee on Rules of Evidence from 1996 to 1999. Id. at 733.
53. Paul R. Rice & Neals-Erik William Delker, Federal Rules of Evidence Advisory Committee: A Short History of Too Little Consequence, 191 F.R.D. 678, 684 n.62 (2000).
54. 28 U.S.C. §331(2000).
55. Politics of Evidence Symposium, supra note 6, at 738 (comments of Judge Fern Smith).
56. Id.
57. Id.
58. Id.
59. Id.
60. See, e.g., Paul R. Rice, Advisory Committee on the Federal Rules of Evidence: Tending to the Past and Pretending for the Future?, 53 HASTINGS L.J. 817, 838 (2002) ("Law by committee, particularly through the bureaucratized process under the Rules Enabling Act, is inherently less responsive and vital . . . .").
61. Professor Rice has also led the charge to encourage major changes to the Federal Rules of Evidence through the Evidence Project Report, a thorough compilation of proposed revisions to the Federal Rules of Evidence, with accompanying commentary. See The Evidence Project: Proposed Revisions to the Federal Rules of Evidence, 171 F.R.D. 330 (1997), available at http://www.wcl.american.edu/pub/journals/evidence/toc.html.
62. Politics of Evidence Symposium, supra note 6, at 739 (comments of Judge Fern Smith).
63. Rice, supra note 44, at 823.
64. See, e.g., id. (calling the slow amendment process "perverse").
65. See, e.g., Daniel J. Capra, A Recipe for Confusion: Congress and the Federal Rules of Evidence, 55 U. MIAMI L. REV. 691, 692-93 (2001) (describing congressional reaction to "a few poster child cases in which evidence of a defendant's prior sexual assaults was excluded from trial").
66. See Politics of Evidence Symposium, supra note 6, at 741-42 (comments of Paul Rice).
67. See, e.g., 140 CONG. REC. 15208 (1994) (statement of Rep. Hughes) (observing the lack of formal review, hearings, and debate).
68. See, e.g., CLIFFORD S. FISHMAN, JONES ON EVIDENCE: CIVIL AND CRIMINAL § 1.1, at 2-3 (7th ed. 1992) (instructing that an attorney should "routinely appl[y] a consistent analytical approach");
69. SALTZBURG, supra note 29, at xv-xxvi (dividing the Rules into groups for greater practical explanation).
70. Article I (General Provisions), Article II (Judicial Notice), Article III (Presumptions in Civil Actions and Proceedings), Article IV (Relevancy and Its Limits), Article V (Privileges), Article VI (Witnesses), Article VII (Opinions and Expert Testimony), Article VIII (Hearsay), Article IX (Authentication and Identification), Article X (Contents of Writings, Recordings, and Photographs), and Article XI (Miscellaneous Rules). FED. R. EVID., at xi-xiv (Table of Contents).
71. For example, Rule 610's exclusion of evidence regarding the religious views of witnesses is placed in Article VI (Witnesses), rather than Article IV (Relevancy and Its Limits), which informs courts that the Rule states an absolute requirement of exclusion that is not subject to the balancing test of Rule 403. 28 CHARLES ALAN WRIGHT & VICTOR JAMES GOLD, FEDERAL PRACTICE AND PROCEDURE § 6152, at 310 (3d ed. 1993).
72. Credit belongs to Professor George Fisher for offering such a framework during the course he teaches on evidence.
73. See Loh, supra note 1, at 14-15.
74. Id.
75. See id. at 13-19.
76. See supra note 1.
77. See also John H. Langbein, Historical Foundations of the Law of Evidence: A View From the Ryder Sources, 96 COLUM. L. REV. 1168, 1169, 1172, 1194 (1996) ("From the Middle Ages to our own day, the driving concern animating the Anglo-American law of evidence has been to protect against the shortcomings of trial by jury.").
78. Professor Langbein offers important insights into the origins of evidentiary rules by reviewing the judge's notes of Sir Dudley Ryder, Chief Justice of King's Bench from 1754-1756. Id. at 1172.
79. According to Professor Langbein, Chief Justice Ryder's notes reveal that the modern law of evidence "was largely nonexistent as late as the middle decades of the eighteenth century." Id.
80. Because the jury system can be traced as far back as the twelfth century, Professor Langbein calls the effort to tie the development of evidentiary law to the origins of the jury "awkward." Id. at 1169-70.
81. Indeed, Professor Langbein makes a strong case that the advance of modern evidentiary law is more directly related to the development of adversary criminal procedures in the late eighteenth century. Id. at 1197-1200.
82. Adversary procedure pushed judges toward a more neutral role in the trial than they had otherwise occupied. Id. at 1198.
83. This, in turn, gave the jury more control over determining the outcome of trials. Id. at 1198-99.
84. Furthermore, the nature of the form of evidence proffered by parties transitioned from written to oral. Id. at 1183-84.
85. Evidentiary rules prior to these developments were limited largely to questions relating to written evidence and the best evidence rule. Id. at 1173-74.
86. As oral testimony replaced written evidence as the dominant means of conveying information to the jury, evidentiary standards in the form of exclusionary rules developed to keep the jury in line. Id. at 1196.
87. Thus, although the modern law of evidence did not appear at the same time as the jury system, it remains true that evidentiary rules arose out of concerns over juries' abilities to properly weigh certain types of evidence. Id. at 1194.
88. See Leubsdorf, supra note 12, 1248-49.
89. Professor Leubsdorf discusses the jury-centered basis for a number of evidentiary rules, including those that control expert evidence, hearsay, character evidence, and even the authentication requirement (stating that "Wigmore ascribes even the authentication requirement to the tendency of credulous jurors to accept any document placed before them at its full apparent value"). Id. at 1248-49.
90. See infra notes 81-87 and accompanying text (discussing early English and American case law demonstrating concerns about juries).
91. Edmund M. Morgan, Foreword to MODEL CODE OF EVIDENCE 6 (1942) (Morgan states that "[t]he charge is seldom made that modern juries are corrupt, but complaints of stupid and capricious action are frequent.
92. The low intellectual capacity of the jury is commonly put forward to justify some, if not all, of our exclusionary rules."). Morgan disagreed with this common assessment of the jury. Id. at 6-7.
93. FRANK, supra note 1, at 132.
94. Id. (first internal quotation marks omitted).
95. Id. at 124.
96. See infra notes 113-19 and accompanying text (discussing early American concepts of the jury).
97. See infra notes 116-19 and accompanying text.
98. Daniel D. Blinka, Jefferson and Juries: The Problem of Law, Reason, and Politics in the New Republic, 47 AM. J. LEGAL HIST. 35, 37 (2005).
99. See, e.g., Blakely v. Washington, 542 U.S. 296, 306 (2004) (quoting Letter from Thomas Jefferson to the Abbé Arnoux (July 19, 1789),
100. reprinted in 15 THE PAPERS OF THOMAS JEFFERSON 282, 283 (Julian P. Boyd & William H. Gaines, Jr. eds., 1958));
101. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1188 (1991);
102. Vikram David Amar, Jury Service as Political Participation Akin to Voting, 80 CORNELL L. REV. 203, 221 n.105 (1995);
103. Rachel E. Barkow, Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing, 152 U. PA. L. REV. 33, 57 (2003);
104. William P. Quigley, The Necessity Defense in Civil Disobedience Cases: Bring in the Jury, 38 NEW ENG. L. REV. 3, 64 n.224 (2003);
105. Daniel C. Richman, Essay, Old Chief v. United States; Stipulating Away Prosecutorial Accountability?, 83 VA. L. REV. 939, 969 (1997).
106. Blinka, supra note 68, at 37.
107. Id. at 38, 98-99.
108. Id. at 98-99 (quoting THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 130 (William Peden ed., Norton 1972) (1787)).
109. Jefferson actually compared jury decisions with "cross and pile" - an eighteenth century game equivalent to a coin toss. Id.
110. Id. at 101 (quoting 2 THE REPUBLIC OF LETTERS: THE CORRESPONDENCE BETWEEN THOMAS JEFFERSON AND JAMES MADISON, 1776-1826, at 1077 (James Morton Smith ed., 1995)).
111. See Dooley, supra note 1, at 325.
112. In fact, Professor Dooley discusses how the disdain for the jury has been building recently both in the legal profession and among the citizenry. She documents and analyzes modern judicial opinions, legal scholarship, and the popular press to demonstrate the cultural fear of the jury as irrational. See generally id.
113. See infra notes 113-19 and accompanying text.
114. U.S. CONST. amend. V-VII.
115. See George Fisher, The Jury's Rise as Lie Detector, 107 YALE L.J. 575, 577-78 (1997).
116. Leubsdorf, supra note 12, at 1251-52.
117. Fisher, supra note 77, at 577.
118. Juries originally were not permitted to settle issues of witness credibility, but instead were expected to treat all testimony as truthful. Id. at 580.
119. While perhaps absurd by today's standards, this approach was made possible because of the tremendous faith that was historically placed in the ability of the sworn oath to produce truthful testimony. Id.
120. Professor Fisher also traces the process through which the jury rose from this historic role as truth acceptor to its current inception as "lie detector." Id. at 581.
121. In documenting this "evolutionary process," Professor Fisher makes note of two important facts: that it was remarkably slow and that it "was not principled" or "driven by a conviction that the jury can and should resolve credibility conflicts," but that instead "faith in the jury's powers of lie detection only followed the force of events." Id.
122. Thus, even the authority juries hold today came less from intrinsic belief in their abilities than it does from other considerations. See id.
123. Dooley, supra note 1, at 329.
124. Interestingly, legal systems in which judges generally are responsible for rendering verdicts often have limited or no rules of evidence. Kenneth Williams, Do We Really Need the Federal Rules of Evidence?, 74 N.D. L. REV. 1, 22-24 (1998) (describing the systems employed in France, Germany, and the International Tribunals).
125. Rule 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." FED. R. EVTD. 403.
126. EDWARD J. IMWINKELRIED, EVIDENTIARY FOUNDATIONS § 5.01, at 205-06 (7th ed. 2008).
127. So important is Rule 403 that it has been called the " cornerstone" of the entire Federal Rules of Evidence. See Victor J. Gold, Federal Rule of Evidence 403: Observations on the Nature of Unfairly Prejudicial Evidence, 58 WASH. L. REV. 497, 497 & n.5 (1983).
128. And this cornerstone has ancient roots. Thayer traced it to the thirteenth century. See JAMES BRADLEY THAYER, A PRELIMINARY TREATISE ON EVIDENCE AT THE COMMON LAW 516 (1898).
129. A rule calling for the exclusion of evidence out of fear of its effects on the jury was formulated at least as early as the late 1600s. See, e.g., Trial of Ambrose Rookwood, (1696) 13 Howell's St. Trials 139, 209-12 (K.B.) (excluding evidence that might lead to juror confusion).
130. Concerns over a piece of evidence's tendency to inflame passions of the jury are also deeply rooted. See, e.g., People v. Dye, 16 P. 537, 539-40 (Cal. 1888) (excluding evidence that would expose the defendant to jurors' contempt); People v. Corey, 42 N.E. 1066, 1071 (N.Y. 1896) (excluding evidence regarding the defendant's syphilis because it might arouse jurors' passions and create a feeling of antipathy toward the defendant).
131. See, e.g., Old Chief v. United States, 519 U.S. 172, 181-82 (1997) (noting that evidence should be excluded if it could cause a jury to convict on the basis that '"a bad person deserves punishment'" (quoting United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)));
132. United States v. Astling, 733 F.2d 1446, 1457 (11th Cir. 1984) (observing that emotional evidence might lead a jury to an irrational decision);
133. see also 1 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE § 403App.01[l]-[3] (Joseph M. McLaughlin ed., 2007) (providing historical analysis and policy background);
134. 1 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 21, at 931-34 (Peter Tillers rev., Little, Brown & Co. 1983) (stating that the proper approach "focuses on the probable effect... on the jury's deliberations");
135. 1A id. § 28, at 975 ("[T]he trial judge [has] extensive discretionary power to exclude relevant evidence for reasons such as .. . undue prejudice . ...").
136. Weinstein and Berger provide examples of the policies underlying Rule 403: Evidence such as the following has been found unfairly prejudicial: Evidence that appeals to the jury's sympathies. Evidence that arouses jurors' sense of horror. . .. Evidence that provokes a jury's instinct to punish. Evidence that triggers other intense human reactions. The appellate court may also conclude that "unfair prejudice" occurred because an insufficient effort was made at trial to avoid the dangers of prejudice. 2 WEINSTEIN & BERGER, supra note 85, § 403.04[l][c] (footnotes omitted).
137. Indeed, Weinstein and Berger state that "[u]nfairness may be found in any form of evidence that may cause a jury to base its decision on something other than the established propositions in the case." 2 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE § 403.04[l][b] (Joseph M. McLaughlin ed., 1998).
138. FED. R. EVTD 403 advisory committee's notes.
139. See, e.g., Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994) ("Adopting the position taken in Gulf States, we hold that in the context of a bench trial, evidence should not be excluded under 403 on the ground that it is unfairly prejudicial.");
140. Gulf States Util. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. Unit A Jan. 1981) (The court held that "[t]he exclusion of this evidence under Rule 403's weighing of probative value against prejudice was improper. This portion of Rule 403 has no logical application to bench trials").
141. Federal Rule of Evidence 404 provides: (a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of Accused. In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; (2) Character of Alleged Victim. In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; (3) Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609. (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. FED. R. EVID. 404.
142. See, e.g., Old Chief, 519 U.S. at 181-82 (stating that Rule 404(b) reflects the same common-law tradition as Rule 403);
143. 1 GEORGE E. DIX ET AL., MCCORMICK ON EVIDENCE § 185, at 737-38 (Kenneth S. Broun ed., 6th ed. 2006) ("[E]vidence of convictions for prior, unrelated crimes might lead a juror to think that since the defendant already has a criminal record, an erroneous conviction would not be quite as serious as it would otherwise be.");
144. Gold, supra note 84, at 524-25 (noting the similarities between Rules 403 and 404).
145. Michelson v. United States, 335 U.S. 469, 475 (1948).
146. Id. at 475-76 (footnote omitted).
147. Federal Rule of Evidence 407 provides: When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. FED. R. EVID. 407.
148. Federal Rule of Evidence 408 provides: (a) Prohibited Uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish - or accepting or offering or promising to accept - a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. (b) Permitted Uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution FED. R. EVID. 408.
149. Federal Rule of Evidence 409 provides: "Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury." FED. R. EVID. 409.
150. Federal Rule of Evidence 410 provides: Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: (1) a plea of guilty which was later withdrawn; (2) a plea of nolo contendere; (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel. FED.R.E VID. 410.
151. Federal Rule of Evidence 411 provides: Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. FED. R.EVID. 411.
152. Federal Rule of Evidence 412 provides, in relevant part: (a) Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victim's sexual predisposition. (b) Exceptions. (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence; (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and (C) evidence the exclusion of which would violate the constitutional rights of the defendant. (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. FED. R. EVID. 412 (aHb).
153. See Leubsdorf, supra note 12, at 1248-49;
154. see also Columbia & Puget Sound Ry. Co. v. Hawthorne, 144 U.S. 202, 207 (1892) (stating that the concept behind excluding subsequent remedial measures is, in part, that such evidence "is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendant");
155. FED. R. EVID. 411 advisory committee's note (such evidence "would induce juries to decide cases on improper grounds");
156. 1 EDMUND M. MORGAN, BASIC PROBLEMS OF EVIDENCE 212 (1961) ("But the chief reason for preventing reception of the evidence [of insurance policies] is the supposed inclination of jurors to make the insurance company bear the loss because it has been paid for taking the risk, it is well able to pay, and it will spread the loss among its policy holders.");
157. 2 WEINSTEIN & BERGER, supra note 85, § 408.02 (discussing the purposes behind Rule 408);
158. 23 WRIGHT & GRAHAM, supra note 15, §§ 5282, 5362 (Supp. 2008) (discussing the policy rationale of Rules 407 and411).
159. Federal Rule of Evidence 702 provides: If scientific, technical, or otherwise specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. FED. R. EVID 702.
160. Federal Rule of Evidence 703 provides: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. FED. R. EVID. 703.
161. Federal Rule of Evidence 704 provides: (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. FED. R. EVID. 704.
162. See Allison v. McGhan Med. Corp., 184 F.3d 1300, 1310 (11th Cir. 1999);
163. United States v. Addison, 498 F.2d 741, 744 (D.C. Cir. 1974);
164. see also Joseph Sanders, The Merits of the Paternalistic Justification for Restrictions on the Admissibility of Expert Evidence, 33 SETON HALL L. REV. 881, 907-08 (2003) (challenging the assumption that juries must be protected from expert opinion).
165. This is not to say that other policy considerations did not factor into the adoption of these Rules. A review of each Rule's advisory committee notes reveals as much. Nevertheless, I brand these rules "juror-centric" because the manner in which they operate is to keep otherwise admissible evidence out of the hands of the jury, in large part because of misgivings about how the jury would use such information.
166. Federal Rule of Evidence 610 provides: "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." FED. R. EVID. 610.
167. See Leubsdorf, supra note 12, at 1248-49;
168. see also 28 WRIGHT & GOLD, supra note 53, § 6152 (identifying concerns about jury treatment of information related to the witness's religious faith).
169. See Gold, supra note 84, at 503-06;
170. Leubsdorf, supra note 12, at 1250-51.
171. See infra note 110 (discussing that the "right" outcome does not necessarily mean the outcome that comports with the actual events that led to the trial).
172. See Gold, supra note 84, at 497, 503, 505.
173. See Fisher, supra note 77, at 577.
174. I place quotation marks around "right" because I wish to distinguish between truth-verifying outcomes (verdicts that comport with the actual events giving rise to the trial) and verdicts that satisfy our desired goals of fairness and justice (verdicts that seem truthful). See Charles Nesson, The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts, 98 HARV L. REV. 1357, 1362 (1985). It is the latter concern to which I am referring.
175. Akhil Amar, supra note 69, at 1190;
176. see also U.S. CONST. amends. V-VII.
177. U.S. CONST. art. III, § 2, cl. 3.
178. Akhil Amar, supra note 69, at 1183.
179. See, e.g., Letter from the Federal Farmer No. 15 (Jan. 18, 1788), reprinted in 2 THE COMPLETE ANTI- FEDERALIST 315, 320 (Herbert J. Storing ed., 1981) ("If the conduct of judges shall be severe and arbitrary, and tend to subvert the laws, and change the forms of government, the jury may check them ...."); THE FEDERALIST No. 83, at 458-60 (Alexander Hamilton) (E.H. Scott ed., 1898) (noting use of the jury for civil cases in the states at the time); see also Akhil Amar, supra note 69, at 1183-85, 1187-89 (discussing the centrality of juries to the Bill of Rights).
180. See Letter from the Federal Farmer No. 15, supra note 115, at 319-22 (asserting that the failure to guarantee civil trial by jury rendered the proposed Constitution "of little or no importance");
181. THE FEDERALIST NO. 83 (Alexander Hamilton), supra note 115, at 453 ("The objection to the plan of the Convention, which has met with most success in this State [New York], is relative to the want of a constitutional provision for the trial by jury in civil cases.").
182. Letter from the Federal Farmer No. 15, supra note 115, at 320 (footnote omitted).
183. In responding to Federal Farmer, Alexander Hamilton wrote: The friends and adversaries of the plan of the Convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury. Or if there is any difference between them, it consists in this; the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government. THE FEDERALIST NO. 83 (Alexander Hamilton), supra note 115, at 456.
184. 2 WORKS OF JOHN ADAMS 253 (Charles Francis Adams ed., 1850).
185. See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 483-84 & n.10 (2000) ("The judge's role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury.").
186. See FED. R. CIV. P. 47(a).
187. See FED. R. CIV. P. 47(b).
188. Of course, a jury may disregard a judge's instructions. In the civil setting, however, a jury's decision to ignore the law may result in an alteration or amendment of the judgment. See FED. R. CIV. P. 59.
189. See FED. R. CIV. P. 50.
190. See FED. R. CIV. P. 59.
191. See FED. R. CIV. P. 59(e).
192. See STANDING RULES OF THE SENATE, S. Doc. No. 110-9, R. XXII, at 15-17 (2007), available at http://rules.senate.gov/senaterules/Rules091407.pdf.
193. While the filibuster dramatically increases the power of each individual senator, the device limits the Senate's ability to act as an institution.
194. Letter from the Federal Farmer No. 15, supra note 115, at 320.
195. Representation theory provides an additional basis for Congress to refrain from involving itself in the juror-centric Federal Rules of Evidence. Thomas Hobbes's idea of representation distinguishes between "natural" and "artificial" persons, between "actors" and "authors." THOMAS HOBBES, LEVIATHAN 105 (Michael Oakeshott ed., Basil Blackwell 1957).
196. "A natural person is one whose words and actions are considered his own;" an "artificial person is one whose words or actions are considered those of someone else." HANNA FENICHEL PITKIN, THE CONCEPT OF REPRESENTATION 15 (1967).
197. Representatives, we see through Hobbes's notion, are persons authorized to act on behalf of another; they are, in other words, "artificial" persons. HOBBES, supra, at 105.
198. When a group of representatives act - when, for example, Congress amends the Federal Rules of Evidence - they are doing so with authority granted by the people who elected them. The representatives may be the actors, but the people own the act. Taking this Hobbesian view, Hannah Pitkin has said: "The representative must act in such a way that, although he is independent, and his constituents are capable of action and judgment, no conflict arises between them. He must act in their interest, and this means that he must not normally come into conflict with their wishes." PITKIN, supra at 166. If one accepts that elected representatives are often no more than actors committed to taking the actions demanded and expected by their constituents, then one must also accept that the very concerns that form the basis for the Federal Rules of Evidence - inflamed passions, emotional responses, and outcome-oriented decision-making - are likely to manifest themselves in congressional actions. If we are to continue to attempt to keep juror emotion and passion from interjecting themselves into the courtroom, we must also limit congressional emotion and passion from interjecting themselves into the Federal Rules of Evidence.
199. The Judicial Conference urged Congress to reconsider its adoption of Rules 413-415, calling the proposed changes unnecessary and unsupported by empirical evidence. See JUD. CONF. OF THE U.S., REPORT OF THE JUDICIAL CONFERENCE ON THE ADMISSION OF CHARACTER EVIDENCE IN CERTAIN SEXUAL MISCONDUCT CASES, 159 F.R.D. 51, 52-53 (1995).
200. Pub. L. No. 103-222, 108 Stat. 1796 (codified as amended in scattered sections of 2, 8, 12, 15, 16, 18, 20, 21, 26, 28, 42 U.S.C.).
201. Kenneth J. Cooper, House Passes $30 Billion Crime Bill, 235 to 195, WASH. POST, Aug. 22, 1994, at Al.
202. Violent Crime Control and Law Enforcement Act §§ 60003-24.
203. Id. §70001.
204. Id. §110102.
205. Id. § 20109.
206. Id. § 10003.
207. Id. § 30202.
208. Federal Rule of Evidence 413 provides: (a) In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. (d) For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved - (1) any conduct proscribed by chapter 109A of title 18, United States Code; (2) contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person; (3) contact, without consent, between the genitals or anus of the defendant and any part of another person's body; (4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)- (4). FED. R.EVID. 413.
209. Federal Rule of Evidence 414 provides: (a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. (b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. (d) For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved - (1) any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child; (2) any conduct proscribed by chapter 110 of title 18, United States Code; (3) contact between any part of the defendant's body or an object and the genitals or anus of a child; (4) contact between the genitals or anus of the defendant and any part of the body of a child; (5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or (6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5). FED.R.EVID.414.
210. Federal Rule of Evidence 415 provides: (a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that parry's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules. (b) A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. FED.R.EVID. 415.
211. See 140 CONG. REC. 15208-09 (1994) (statement of Rep. Hughes).
212. See, e.g., id. at 15209 ("Frankly, Mr. Speaker, ... it raises serious constitutional questions.");
213. Duane, supra note 9, at 107-08 & n.71 (suggesting violation of constitutional due process); Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 AM. CRIM. L. REV. 57, 58-59 (1995) (contending that Rule 413 impinges due process and equal protection).
214. These concerns proved to be well-founded, as courts upheld the new rules only after determining that Rule 403's balance test still applies. See, e.g., United States v. Mound, 149 F.3d 799, 800-02 (8th Cir. 1998);
215. United States v. Castillo, 140 F.3d 874, 883 (10th Cir. 1998); United States v. Enjady, 134 F.3d 1427, 1434 (10th Cir. 1998).
216. See discussion infra Part IV.B. 1 .a.
217. Duane, supra note 9, at 96.
218. Id.
219. Id.
220. Id.
221. Id. at 96-97.
222. Jill Zuckman, Negotiators in House Outline Deal on Crime Bill, BOSTON GLOBE, Aug. 21, 1994, at 1 (cited in Duane, supra note 9, at 96).
223. 140 CONG. REO. 15209 (1994) (statement of Rep. Hughes). Representative Molinari responded to this statement by saying, "I think if we talked to any one of the victims or the parents of the victims whose assailant has been allowed to go free because of a technical difficulty, they would not deem this measure ridiculous." Id.
224. See Zuckman, supra note 151.
225. See id.
226. See Duff, supra note 4.
227. 538 A.2d 726 (Del. 1988).
228. One should note that all of the anecdotal evidence provided by congressional supporters of the changes to the Federal Rules of Evidence dealt with cases or crimes handled in state court. This is because the responsibility for the prosecution of sexual crimes rests principally with the states. In fact, in the year before Rules 413-415 were added, there were only 155 federal prosecutions for sexual offenses. See 23 WRIGHT & GRAHAM, supra note 15, § 5412, at 463, 473 n.7 (Supp. 2008).
229. As Professor Duane has noted, Mr. Getz did not walk far. Duane, supra note 9, at 101. Getz was retried and convicted without the objectionable evidence, leading one to question the supporters' claims of the necessity of this information to secure convictions. Id.
230. 140 CONG. REC. 18929 ( 1994).
231. 708 P.2d 468 (Colo. Ct. App. 1985).
232. 140 CONG. REC. 15208 (1994).
233. Representative Kyl's example is characteristic of the anecdotes offered by supporters of Federal Rules 413-415 in that they often seem to be using the debate over these three rules of evidence as a cathartic release of their pent up frustration with the entire criminal justice system. Here, Representative Kyl's example is horrific, but it is an indictment of the Texas parole system, not the Federal Rules of Evidence. In fact, the criminal justice system and the Texas Rules of Evidence appear to have worked without concern in the case of Jerry Walter McFadden: he was tried, convicted, and sentenced to death for the murder of Suzanne Harrison. He was executed on October 14, 1999. Michael Graczyk, McFadden Executed for Killing in 1986, DALLAS MORNING NEWS, Oct. 15, 1999, at 33A.
234. 140 CONG. REC. 15209 (1994).
235. 140 CONG. REC. 15211 ( 1994).
236. As Representative William J. Hughes - one of the few public opponents of the new rules - stated in response to the onslaught of inflammatory rhetoric: "It is very difficult to argue against something that would suggest that in some way we are going to make it easier for child molesters and sexual abusers to walk." 140 CONG. REC. 15208 (1994).
237. Representative Hughes could perhaps afford to lead the House fight against the proposed rules, because he was retiring at the end of the term. Thomas J. Fitzgerald, State's Senior Congressman Says He 'll Retire, N. J. RECORD, Jan. 25, 1994, at A3.
238. For example, Representative Molinari declared that passage of the new rules would be "first and foremost a triumph for the public - for the women who will not be raped and the children who will not be molested because we have strengthened the legal system's tools for bringing the perpetrators of these atrocious crimes to justice." 140 CONG. REC. 23602 (1994). Responding to Democratic criticism that such significant changes to the Federal Rules of Evidence should advance through the traditional process of the Judicial Conference and adoption by the Supreme Court, another supporter of the changes, then-Representative Rick Santorum, stated that he [could ]not believe what we are saying here tonight is that we are going to allow a serial rapist, a serial sexual assaulter, a serial child molester the opportunity to continue without having that relevant evidence brought before the judge because the process of the Supreme Court and the committee that judges rules of evidence has not gotten around to dealing with this issue. 140 CONG. REC. 15211 (1994). If the rules had been changed earlier, according to Representative Kyl, "Suzanne Harrison and thousands of other victims might be alive today." 140 CONG. REC. 15209 (1994).
239. Further, according to Representative Kyl, "[a]llowing the prosecution to bring to trial similar child molestation crimes of the accused will certainly help these young victims bring their attacker to justice." Id. at 15210.
240. The new rules should be enacted "[f]or the thousands of individuals who are victims of sexual violence every year." Id.
241. Baker, supra note 9, at 589.
242. David J. Karp, Evidence of Propensity and Probability in Sex Offense Cases and Other Cases, 70 CHI.-KENT L. REV. 15, 24 (1994).
243. Senator Dole and Representative Molinari relied heavily on the work of David Karp, a Senior Counsel at the Office of Policy Development at the U.S. Department of Justice during the first Bush Administration. Baker, supra note 9, at 568 n.24.
244. In fact, the article by Mr. Karp cited above was placed into the Congressional Record by Senator Dole as part of the legislative history of Rules 413-415. 140 CONG. REC. 24799 (1994).
245. See 140 CONG. REC. 24799 (1994) (statement of Sen. Dole);
246. Karp, supra note 168, at 20.
247. 140 CONG. REC. 24799 (1994) (statement of Sen. Dole).
248. For example, to demonstrate the falsity of the first rationale, Baker cites to several national surveys, all of which indicate that sexual assault is anything but an act of a "small class of depraved criminals." Baker, supra note 9, at 576.
249. One study of 6100 college students revealed that one in twelve men admitted to committing rape. Id. at 576
250. (citing Mary P. Koss, Hidden Rape: Sexual Aggression and Victimization in a National Sample of Students in Higher Education, in 2 RAPE AND SEXUAL ASSAULT 1, 11 (Ann Wolbert Burgess ed., 1988)).
251. Baker also provides the Bureau of Justice Statistics recidivism rates showing that "only 7.7% of released rapists [a]re rearrested for rape," while the recidivism rates for other crimes are markedly higher (33.5% for larcency, 31.9% for burglary, and 24.8% for drug offenses). Id. at 578.
252. Baker presents eight narrative accounts of rape to emphasize the important differences, not just among the various crimes, but between how society often views that crime and the reality of the act itself. Id. at 569-73.
253. See 140 CONG. REC.h 7817 (1994) (statement of Rep. Molinari).
254. Duane, supra note 9, at 100 (citing government statistics showing an 83 percent conviction rate at trial for federal prosecution of sexual offenses).
255. See generally 21 WRIGHT & GRAHAM, supra note 15, § 5008 (giving amendments and history to the Federal Rules of Evidence).
256. For example, Rule 609 was amended in 1990 to resolve an ambiguity as to the relationship of Rules 609 and 403 with respect to impeachment of witnesses other than a defendant. See FED. R. EV1D. 609 advisory committee's note.
257. The amendment was in response to the Supreme Court's holding in Green v. Bock Laundry Machine Co., 490 U.S. 504, 527 (1989), that felony convictions used to impeach witnesses other than a defendant could not be excluded under Rule 403. Another example is the degenderization of the Rules that occurred in 1987 and 1988. See 21 WRIGHT & GRAHAM, supra note 15, § 5008, at 344.
258. 140 CONG. REC. 7817 (1994).
259. Id. at 15211.
260. Duane, supra note 9, at 100.
261. Id.
262. In fact, absent from the comments of supporters of Federal Rules 413-415 is any discussion of the possibility that a sexual assault or child molestation defendant could be wrongly accused. In the minds of Senator Dole and Representatives Molinari, McCullum, Kyl, and Santorum, accusation is synonymous with guilt. For a compelling discussion of why such thinking is misplaced, see Baker, supra note 9, at 581.
263. Again, this goal, in and of itself, may be quite laudable. The problem was that the drafters of Federal Rules 413-415 saw appellate affirmation of convictions as an end unto itself, rather than as a process toward ensuring that innocent defendants are not wrongly convicted. Attempting to prevent reversals on appeal by amending the Rules of Evidence to permit wider types of evidence ignores one of the very purposes of the Rules and disrupts the balance between admissibility and unfair prejudice.
264. 140 CONG. REC. 7817(1994).
265. Politics of Evidence Symposium, supra note 6, at 750 (comments of Gregory Joseph).
266. Pub. L. No. 98-473, 98 Stat. 2057 (codified at 18 U.S.C. § 17 (2000)).
267. Named after the guidelines established by the House of Lords in M'Naghten's Case, (1843) 8 Eng. Rep. 718 (H.L.). The standard provides that 1) A person is not responsible for criminal conduct if, at the time of the offense; 2) the defendant suffered from a mental disease or defect; 3) that caused the defendant either: (a) not to know the nature and quality of the act he or she committed; or (b) knowing the quality of the act, nonetheless not to know that the act was wrong. Henry F. Fradella, From Insanity to Beyond Diminished Capacity: Mental Illness and Criminal Excuse in the Post-Clark Era, 18 U. FLA. J.L. & PUB. POL'Y 7, 16-17 (2007).
268. Subsection (b) of Federal Rule of Evidence 704 provides: No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. FED. R. EVID. 704(b).
269. LINCOLN CAPLAN, THE INSANITY DEFENSE AND THE TRIAL OF JOHN W. HINCKLEY, Jr. 64-68 (1984).
270. Id. at 63-72.
271. Rita R. Carroll, Insanity Defense Reform, 114 MIL.L. REV. 183, 184(1986).
272. CAPLAN, supra note 187, at 116;
273. see also Carroll, supra note 189, at 184 & n.9 (discussing the fact that five of the Hinckley jurors testified before the Senate Judiciary Committee's Subcommittee on Criminal Law just three days after the verdict and quoting several senators expressing frustration with the Hinckley verdict).
274. See Herbert H. Denton, President Leans Toward Review of Insanity Defense, WASH. POST, July 2, 1982, at A4;
275. Peter Perl, Public That Saw Reagan Shot Expresses Shock at the Verdict, WASH. POST, June 23, 1982, at A8.
276. S. REP. NO. 98-225, at 230 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3412.
277. N. Sec. Co. v. United States, 193 U.S. 197, 400 (Holmes, J., dissenting).
278. One could argue that Congress's motivation was, as the Senate Report stated, eliminating the "confusing spectacle of expert witnesses contradicting each other as to the ultimate legal issue." S. REP. NO. 98-225, at 230. The difficultly with accepting this explanation is that the proposed change to Rule 704 addresses only issues involving mental health testimony in criminal trials. If Congress were truly concerned about competing experts regarding the ultimate issue, there was no reason to limit the amendment to mental health testimony and no reason to restrict its application to criminal trials. Another way to expose the true motivation of the proponents of the change to Rule 704 is simply to ask the question: had Hinckley been found guilty, would Congress have amended the Rule? If the answer is no, the amendment must have been inspired, at least in part, to influence the outcome in favor of future convictions.
279. CAPLAN, supra note 187, at 104.
280. The number of acquittals at the state level was similarly low. See id. at 102-08.
281. I do not intend this as a criticism of Congress's effort to make insanity defenses more difficult. As noted above, Congress was largely codifying the M'Naghten standard for proving legal insanity that had been in existence for over a century. In fact, the policy goals underlying the bulk of the Insanity Defense Reform Act may be sensible and, moreover, are undoubtedly within the purview of Congress. Rather, the problem is that Congress abandoned the standard process for amending the Federal Rules of Evidence and did so based on emotional considerations and with an outcome-driven motivation.
282. 29 CHARLES ALAN WRIGHT & VICTOR JAMES GOLD, FEDERAL PRACTICE AND PROCEDURE, § 6282, at 365 (1997).
283. Id. § 6282, at 369;
284. see also United States v. Austin, 981 F.2d 1163, 1166 (10th Cir. 1992) (stating that the rule is intended to "prevent[] a confusing 'battle of the experts'");
285. United States v. Kristiansen, 901 F.2d 1463, 1466 (8th Cir. 1990) (stating that the "purpose of rule 704(b) is to prevent a jury adjudicating an insanity claim from becoming thoroughly confused by medical experts' testimony about the ultimate legal issues").
286. 29 WRIGHT & GOLD, supra note 197, § 6282, at 369;
287. see also United States v. DiDomenico, 985 F.2d 1159, 1164 (2d Cir. 1993) (holding that Rule 704(b) "recognizes that expert testimony concerning a defendant's mental state poses a uniquely heightened danger of intruding on the jury's function").
288. 29 WRIGHT & GOLD, supra note 197, § 6282, at 369.
289. See FED. R. EVID. 702 advisory committee's note.
290. Capra, supra note 48, at 696-97.
291. 29 WRIGHT & GOLD, supra note 197, § 6282, at 370;
292. see also S. REP. No. 98-225, at 230-31 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3412-13. The Senate Report relied on a statement by the American Psychiatric Association for the policy rationale: [I]t is clear that psychiatrists are experts in medicine, not the law. As such, it is clear that the psychiatrist's first obligation and expertise in the courtroom is to "do psychiatry," i.e., to present medical information and opinion about the defendant's mental state and motivation and to explain in detail the reason for his medicalpsychiatric conclusions. When, however, "ultimate issue" questions are formulated by the law and put to the expert witness who must then say "yea" or "nay," then the expert witness is required to make a leap in logic. He no longer addresses himself to medical concepts but instead must infer or intuit what is in fact unspeakable, namely, the probable relationship between medical concepts and legal or moral constructs such as free will. These impermissible leaps in logic made by expert witnesses confuse the jury-Id. (alteration in original).
293. 29 WRIGHT & GOLD, supra note 197, § 6282, at 370.
294. Id. at 371.
295. S. REP. NO. 98-225, at 230; 29 WRIGHT & GOLD, supra note 197, § 6282, at 371;
296. see also United States v. Lipscomb, 14 F.3d 1236, 1241 (7th Cir. 1994) ("[I]t is evident that Rule 704(b) was designed to avoid the confusion and illogic of translating the 'medical concepts' relied upon by 'psychiatrists and other mental health experts' into legal conclusions.").
297. 29 WRIGHT & GOLD, supra note 197, § 6282, at 371.
298. Id.
299. Id. at 372.
300. See Dana Hassin, How Much is Too Much? Rule 704(b) Opinions on Personal Use vs. Intent to Distribute, 55 U. MIAMI L. REV. 667, 677-80 (2001).
301. See Deon J. Nossel, Note, The Admissibility of Ultimate Issue Expert Testimony by Law Enforcement Officers in Criminal Trials, 93 COLUM. L. REV. 231, 231-32 & nn.4-5 (1993) (discussing the federal prosecutor's reliance on expert law enforcement testimony and citing several pre-704(b) cases, such as United States v. Young, 745 F.2d 733 (2d Cir. 1984);
302. United States v. Pugliese, 712 F.2d 1574 (2d Cir. 1983);
303. United States v. Jones, 605 F. Supp. 513 (S.D.N.Y. 1984)).
304. See, e.g., United States v. Boyd, 55 F.3d 667, 672 (D.C. Cir. 1995) (holding that the trial court erred by admitting police officer testimony that the quantity of crack cocaine in a person's possession was consistent with an intent to distribute); United States v. Mitchell, 996 F.2d 419, 422 (D.C. Cir. 1993) (holding that trial court erred under Rule 704(b) by permitting a police officer to give expert testimony that, based on the packaging of the cocaine, the defendant intended to distribute the drugs).
305. Still, most courts have concluded that Rule 704(b) does not bar such testimony. See, e.g., United States v. Richard, 969 F.2d 849, 854-55 (10th Cir. 1992) ("The rule does not prevent the expert from testifying to facts or opinions from which the jury could conclude or infer the defendant had the requisite mental state.");
306. United States v. Foster, 939 F.2d 445, 454 (7th Cir. 1991) (concluding that the testimony "merely assisted the jury," as opposed to deciding for them);
307. United States v. Alvarez, 837 F.2d 1024, 1031 ( 11 th Cir. 1988) ("[T]he expert left this inference for the jury to draw. He did not expressly 'state [the] inference.'" (alteration in original));
308. United States v. Dotson, 817 F.2d 1127, 1132 (5th Cir. 1987) ("[T]he responses of the expert were . . . focused on the evidence, rather than addressing the ultimate issue . ...").
309. Compare United States v. Lipscomb, 14 F.3d 1326, 1241-42 (7th Cir. 1994) (limiting Rule 704(b)'s application to mental health experts), with Boyd, 55 F.3d at 672 (applying Rule 704(b) to non-mental health testimony), and Richard, 969 F.2d at 855 (same).
310. S. REP.NO. 98-225, at 230-31 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3412-13.
311. See 29 WRIGHT & GOLD, supra note 197, § 6283, at 375-76.
312. Id. § 6285, at 388.
313. 962 F.2d 1243 (7th Cir. 1992).
314. Id. at 1244.
315. Id. at 1245.
316. Id. at 1245, 1247.
317. Id. at 1245.
318. Id. at 1246-47.
319. Id. at 1247-48.
320. Id. at 1245 (quoting the trial judge). More commonly, the Rule has been applied at the defendant's expense. See, e.g., United States v. Campos, 217 F.3d 707, 712 (9th Cir. 2000) (upholding the exclusion of expert testimony regarding results of defendant's polygraph test); United States v. Bennett, 161 F.3d 171, 183 (3d Cir. 1998) (barring defendant's expert's testimony regarding defendant's intent to defraud the Internal Revenue Service).
321. A compounding problem is that rules directly adopted by Congress are viewed as somehow above reproach by the Advisory Committee, so that once a change has been made by Congress, it will almost certainly take another act of Congress to correct any unintended consequences. See Eileen A. Scallen, Analyzing "The Politics of [Evidence] Rulemaking," 53 HASTINGS l.j. 843, 860-61 (2002).
322. See Michelson v. United States, 335 U.S. 469, 475-76 (1948);
323. 1A WIGMORE, supra note 85, § 58.2, at 1212;
324. see also Richard D. Friedman, Minimizing the Jury Over-Valuation Concern, 2003 MICH. ST. L. REV. 967, 979 (arguing that character-evidence causes a jury to lower the burden of proof because it does not like the defendant).
325. If the evidence is not relevant, no exclusionary rule is necessary. See FED. R. EVID. 402.
326. See, e.g., Michelson, 335 U.S. at 475-76;
327. United States v. Enjady, 134 F.3d 1427, 1430-33 (10th Cir. 1998) (stating that "Rule 413 raises ... serious constitutional due process" concerns, but that the Rule passed muster because the protections of Rule 403 still applied);
328. see generally Louis M. Natali, Jr. & R. Stephen Stigall, "Are You Going to Arraign His Whole Life? ": How Sexual Propensity Evidence Violates the Due Process Clause, 28 LOY. U. CHI. L.J. 1 (1996) (examining the constitutionality of Rules 413-415, and concluding that the Rules "represent popular political fads which Congress enacted in order to satisfy the fears of constituents, without regard to protections afforded to defendants by the Constitution").
329. Representative William Hughes and Senator Joe Biden spoke up strongly against Rules 413-415, but these exceptions prove the rule. Representative Hughes was retiring from Congress at the end of the 1993-1995 term, see supra note 165, and Senator Biden has not faced serious opposition since his first election to the Senate in 1972. See Mike McIntire & Serge F. Kovaleski, An Everyman on the Trail, With Perks at Home, N.Y. TIMES, Oct. 2, 2008, at A1.
330. Paul Kirgis, A Legisprudential Analysis of Evidence Codification: Why Most Rules of Evidence Should Not Be Codified - But Privilege Law Should Be, 38 LOY. L.A. L. REV. 809, 809-810 & n.5 (2005)
331. (citing Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873 (1987)).
332. See supra note 165 (statement of Rep. Hughes). Few elected officials want to be attacked as soft on crime - an accusation more likely to be made (and to stick), if the lawmaker takes up the cause of criminal defendants.
333. Politics of Evidence Symposium, supra note 6, at 750 (comments of Gregory Joseph).
334. As a starting point, I should note it is undeniably true that Congress can amend the Federal Rules of Evidence as it sees fit, as long as those changes do not result in an unconstitutional denial of due process or equal protection. I am not arguing that Congress cannot amend the Rules of Evidence. Instead, I seek to make the case that Congress should not amend the Rules because congressional action involving evidentiary rules, especially those that are jurorcentric, is an affront to the very purposes the Rules serve.
335. 140 CONG. REC. 15208 (1994) (statement of Rep. Hughes). Additionally, Democrats included within the legislation adding Rules 413-415 a provision to keep the new rules from taking effect immediately. 23 WRIGHT & GRAHAM, supra note 15, § 5411, at 454.
336. The Judicial Conference was given 150 days to study and offer an opinion as to the new rules. Id.
337. If the Judicial Conference took no action or opposed the changes, Rules 413-415 would not take effect for 150 days. Id.
338. One can speculate that this provision was added to soothe the concerns of Democrats who believed they would be able to return to this issue after the 1994 elections and with the added weight of the Judicial Conference opposition behind them. Id. Democrats, obviously, did not anticipate losing control of both chambers of Congress as a result of that November's elections. Nevertheless, the decision to include a request for Judicial Conference comment and the 150-day stay of implementation are further demonstrations that many lawmakers prefer the process established by the Rules Enabling Act to that of direct congressional involvement in the Federal Rules of Evidence.
339. See, e.g., Gang Abatement and Prevention Act of 2007, H.R. 1582, 110th Cong. § 205 (2007) (calling for the Judicial Conference to study the necessity and desirability of amending Federal Rule of Evidence 804(b) related to hearsay exceptions for wrongdoing); Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, 109th Cong. § 214 (2006) (directing the Judicial Conference to study amending the Rules to include marital communication and adverse spousal privileges).
340. Moreover, I am not suggesting that Congress pass a law restricting its involvement in amending the Rules of Evidence. Instead, my goal is much more modest. I hope that the next time Congress considers directly implementing changes to the Rules of Evidence, the considerations raised here will influence the debate and provide support to those who argue that the Rules are too important to be the subject of congressional impulses.
341. See Politics of Evidence Symposium, supra note 6, at 750 (comments of Paul Rice).
342. See Rice, supra note 44, at 819-25.
343. Politics of Evidence Symposium, supra note 6, at 739-40 (comments of Paul Rice).
344. Id. at 741-42.