^INTRODUCTION

^{The thirtieth anniversary of the adoption of the Federal Rules of Evidence is rapidly approaching. Since the Rules were first enacted by Congress in 1975, none of the bodies charged with the oversight of the Rules -- neither Congress, the Supreme Court, the Judicial Conference, nor the Evidence Advisory Committee has been willing to undertake a comprehensive revision of the Federal Rules of Evidence. The failure to undertake such an effort undermines the purpose of the Rules "to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined."(3)}

^{The neglect of the Rules by the Supreme Court until 1992 -- nearly twenty years after the Rules were first enacted -- when it established the Evidence Advisory Committee has caused disjuncture between the language of a number of the Rules and both the practical application of the Rules and the policies underlying those Rules. The establishment of the Evidence Advisory Committee has only perpetuated the problem. The hands-off approach adopted by the Evidence Advisory Committee means that only the most egregious issues are addressed, leaving many other short-comings in the Rules intact.}

^{This article addresses the problems with the Evidence Advisory Committee's reserved approach to its task of overseeing the Rules of Evidence. Part I of the article begins with an overview of the manner in which federal rules of practice and procedure are supervised and amended. This discussion is followed by a brief history of the adoption of the Federal Rules of Evidence, and a discussion of the policy adopted by the Supreme Court and Evidence Advisory Committee in reviewing changes to the Rules.}

^{Part II of the article focuses on the inconsistencies that have developed due to the hands-off approach to revising the Rules of Evidence. This section considers the inconsistencies that have developed within the Rules themselves and inconsistencies between the Rules and case law, the Constitution, and practice.}

^{Part III discusses the Advisory Committee's efforts to revise Article VII of the Rules of Evidence, relating to lay and expert witness testimony. This section illustrates that the Advisory Committee's policies underlying its decision to revise particular rules is both inconsistent with its practice and that the piecemeal approach to revising the Rules perpetuates and compounds existing problems with the Rules.}

^{Part IV of this article demonstrates that the Evidence Advisory Committee is unwilling to undertake an in-depth and open review of the entire Evidence Code. The Evidence Project at the American University's Washington College of Law has engaged in a two-year long review of every one of the Rules of Evidence. Its conclusions and suggestions have been forwarded to the Evidence Advisory Committee, which summarily rejected the entire package. Part IV addresses the Evidence Project's work and experience with the Evidence Advisory Committee.}

^{Finally, the article concludes that a new method of oversight is necessary in order to establish a comprehensive, open, and evolving review of the Evidence Code.}
 

^{I. AN OVERVIEW OF THE FEDERAL RULE-MAKING PROCESS.}

^{A. Revising The Rules Of Practice And Procedure}

^{In 1934 Congress passed the Rules Enabling Act, which authorized the U.S. Supreme Court to promulgate rules of procedure for federal courts.(4)}

^{As originally enacted the Act provided that the Supreme Court was assigned the responsibility of proposing rules of practice and procedure for the federal courts.(5)}

^{In 1958, the stewardship of the rule-making process was transferred from the Supreme Court to the Judicial Conference, although the Supreme Court retained the ultimate power to adopt, modify, or reject and proposals made by the Conference.(6)}

^{The current rule-making process remains essentially the same as adopted by Congress in 1958.(7)}
 

^{The Judicial Conference is aided in its rule-making powers by five advisory committees.(8)}

^{Each advisory committee is responsible for "carry[ing] on a continuous study of the operation and effect of the general rules of practice and procedure now or hereinafter in use in its particular field," i.e. appellate, bankruptcy, civil, criminal, and evidence.(9)}

^{Each of the committees must be composed of members of the bench, including appellate and trial judges, and the bar.(10)}

^{Committee members are appointed by the Chief Justice of the Supreme Court to a three-year term, which may be renewed one time.(11)}

^{Each advisory committee is also assisted by a reporter who is also appointed by the Chief Justice upon recommendation of the chairman of the advisory committee.(12)}

^{The work of each of the advisory committees is in turn coordinated and supervised by the Judicial Conference Committee on Rules of Practice, Procedure, and Evidence (the "Standing Committee").(13)}

^{Proposed changes to any of the rules of practice or procedure may be submitted by judges, clerks of court, lawyers, professors, or other interested members of the public.(14)}

^{The Judicial Conference has established procedures governing the consideration of proposed changes. These procedures require that once a proposal is received, the secretary of the Standing Committee send an acknowledgment of receipt to the person who submitted the rule.(15)}

^{The proposal is then transmitted to each member of the appropriate advisory committee for consideration.(16)}

^{The advisory committee then conducts a public meeting(17)}

^{at the call of the chairman to consider the appropriate action to be taken on proposals.(18)}

^{The advisory committee may take any of the following actions on a proposal:}

^{accepting the suggestion, either completely or with modifications or limitations;}

^{deferring action on the suggestion or seeking additional information regarding its operation and impact;}

^{rejecting the suggestion because it does not have merit or would be inconsistent with other rules or a statute; or}

^{rejecting the suggestion because, while it may have some merit, it is not really necessary or sufficiently important to warrant a formal amendment.(19)}
 

^{The Advisory Committees must maintain minutes of each open meeting and make those minutes available to the public.(20)}

^{Once the Advisory Committee has determined that a proposal warrants further action, the reporter is required to compile an initial draft of the proposed changes, "Committee Notes," explaining the purpose and intent of the proposal, and summaries of all recommendations or suggestions received by the Advisory Committee, and transmit that information to each member of the Advisory Committee.(21)}

^{If the Advisory Committee approves a new or amended rule, the proposal, together with the Advisory Committee's explanation for its action, and any minority views are submitted to the Standing Committee for action.(22)}
 

^{The Standing Committee may then accept, reject, or modify the Advisory Committee's proposal.(23)}

^{Any modifications that effect a substantive change to the proposal are sent back to the Advisory Committee for further consideration.(24)}

^{If the Standing Committee accepts a proposal, the proposal is distributed for public comment.(25)}

^{For a period of approximately six months from the public notice of the proposal, the Advisory Committee accepts comments and suggestions and conducts public hearings around the country on the proposal.(26)}

^{After the public comment period, the reporter compiles a summary of all comments and submits this information to the Advisory Committee for its consideration.(27)}

^{If the committee believes that further changes to the proposal are required based on the public comments, there may be an additional notice and comment period.(28)}

^{Once the Advisory Committee has approved a proposal after notice and comment, the proposal is again submitted to the Standing Committee for its consideration with a separate report on all comments received.(29)}

^{If the Standing Committee accepts the proposal unchanged, it is then submitted to the Judicial Conference.(30)}

^{Proposed rule changes submitted to the Judicial Conference are generally considered at the Conference's September session each year.(31)}

^{If the Conference approves the proposal, it is submitted to the Supreme Court.(32)}

^{If the Supreme Court approves the proposal, it must submit the proposal to Congress by May 1, of the year in which the rule is to take effect.(33)}

^{Congress has until December 1, of that year to act upon the rule.(34)}

^{If Congress takes no action the rule automatically goes into effect.(35)}

^{B. History Of The Adoption Of The Federal Rules Of Evidence And Creation Of The Advisory Committee On The Rules Of Evidence.}

^{In 1938, a few short years after the enactment of the Rules Enabling Act, the Supreme Court promulgated the Federal Rules of Civil Procedure -- rules which revolutionized practice in the federal courts.(36)}

^{At almost the same time that the Federal Rules of Civil Procedure were adopted, the idea of a uniform body of rules of evidence for the federal courts also emerged.(37)}

^{With the exception of occasional scholarly commentary, the idea lay dormant for more than twenty years.(38)}

^{In 1961, the Judicial Conference approved the formation of a group to study the feasibility of the adoption of a uniform code of evidence.(39)}

^{That same year, Chief Justice Warren appointed the Special Committee on Evidence to study the matter.(40)}

^{At the end of the year, the Special Committee on Evidence released its report. In that report, the Committee reasoned that the Supreme Court had the authority under the Rules Enabling Act to promulgate rules of evidence(41)}

^{and concluded that "the formulation of uniform rules of evidence for the federal courts is both feasible and desirable."(42)}
 

^{In 1965, Chief Justice Warren appointed a 15-member Advisory Committee to undertake the process of crafting a comprehensive code of evidence.(43)}

^{Although the Advisory Committee was composed of many highly respected members,(44)}

^{the membership of the committee nonetheless came under sharp criticism.(45)}

^{As the chairman of the committee conceded during the subsequent Congressional hearings on the rules, "the Advisory Committee was not 'inclined to give the family jewels away or tip or rock the laws of evidence.'"(46)}

^{Most of the work was completed by Professor Cleary, the Advisory Committee reporter.(47)}

^{Over the three and one half years it took the committee to complete the rules of evidence, the group met fourteen times to discuss drafts compiled by Professor Cleary.(48)}

^{After extensive public comment on the initial draft, which was distributed in 1969, the Advisory Committee revised some of the rules.(49)}

^{The revised draft was sent to the Judicial Conference, which approved the draft and submitted it to the Supreme Court.(50)}

^{The Supreme Court returned the draft to the Judicial Conference for distribution and public comment.(51)}

^{Once the proposed rules were circulated widely to the public, both the Justice Department and the Senator McClellan submitted numerous objections to the rules, most of which related to the failure of the rules to consider law enforcement objectives.(52)}

^{Many of the requested changes were made by the Advisory Committee.(53)}

^{A revised draft was again submitted to the Supreme Court for action.(54)}

^{The Justice Department requested that the Court make further changes to the rules, which it did before submitting the proposed rules to Congress for approval on November 20, 1972.(55)}
 

^{On February 7, 1973, the same day that the Senate Select Committee on Watergate was established, the Senate passed a bill delaying enactment of the rules.(56)}

^{After extensive hearings in both the House and Senate, the rules were signed into law on January 2, 1975.(57)}

^{Following submission of the proposed rules to Congress, the Supreme Court disbanded the Advisory Committee on Evidence.(58)}

^{The "institutional history" of the lack of an Evidence Advisory Committee has been characterized as "disconcerting."(59)}

^{Despite numerous calls to reconstitute the Evidence Advisory Committee, the Supreme Court took no action.(60)}

^{This "institutional glitch in the federal rulemaking process" caused a "lack of much needed oversight over the Rules."(61)}
 

^{Finally, in 1992, the Judicial Conference created the Evidence Advisory Committee in order to oversee revisions to the Rules of Evidence.(62)}

^{Shortly before its creation, Judge Becker of the United States Court of Appeals for the Third Circuit and Professor Orenstein urged the Judicial Conference to create an Evidence Advisory Committee for the purpose of conducting a "broad-based review of the Rules."(63)}

^{They were of the opinion that many judges, law professors, and practitioners believed "that review and selective revision of these excellent rules are overdue."(64)}

^{They envisioned that the role of the Advisory Committee would be to "monitor 'plain meaning, respond to the Court's interpretations, and engage in evidence reform."(65)}
 

^{Creation of the Advisory Committee on Evidence, however, has not resulted in substantial improvement in the stewardship of the rules of evidence. Two years after it was created, the Advisory Committee published a "Special Request For Comments On Certain Federal Rules of Evidence."(66)}

^{The Advisory Committee announced that it had engaged in "a comprehensive review of all of the Evidence Rules, and it has now completed an initial assessment of a substantial number of the rules."(67)}

^{This "assessment" constituted the pronouncement that the Committee had decided not to amend twenty-five of the Rules. The Committee offered no explanation for its decision, did not describe the proposals that it had considered before making this decision, and gave no particular insight into why it had rejected particular proposals. Instead, it simply announced:}

^{Its philosophy has been that an amendment to a Rule should not be undertaken absent a showing either that it is not working well in practice or that it embodies a policy decision believed by the Committee to be erroneous. Any amendment will create problems in practical application. The trial bar and bench are familiar with the Rules as they presently exist and extensive changes might affect trials adversely for some time to come. Finally, amendments that seek to provide guidance for every conceivable situation that may arise would entail complexities that might make the rules difficult to apply in practice.(68)}
 

^{The Advisory Committee's "philosophy," however, appears to be inconsistent with the opinion of a substantial number of judges, professors, and practitioners.(69)}

^{Indeed, the Advisory Committee acknowledged that it "is keenly aware . . . that the bar, the bench, and the public do not follow its deliberations with care."(70)}

^{It also recognized that it had "not had much input from outside even though it engaged in a comprehensive review of each Rule."(71)}
 

^{The Advisory Committee's limited stewardship role has led to substantive revisions to approximately 15 of the nearly 125 distinct common law evidence rules within the Code.(72)}

^{While undoubtedly reflecting the high quality of the Evidence Code as originally adopted, the nominal revisions are more a reflection of the reserved management philosophy of the Chief Justice and his Committee appointees. The Committee's often repeated mantra has been, "If it ain't broke, don't fix it." While perhaps a reasonable day-to-day management philosophy, its long term adequacy is tied to the Committee's perception of when something is broken. Unfortunately, in the eyes of the Committee members, a rule isn't broken if it isn't stopping traffic.(73)}

^{This policy leaves unattended those bad rules that are accommodated by good practices. As a consequence, the code "works" but it seldom improves. In 1999 the Committee proposed revisions to seven additional Rules.(74)}

^{As discussed in more detail below, in many respects these proposals are inadequate and only touch the tip of the iceberg. These seven proposals, unchanged after extensive public comment and hearing, were sent to the full Judicial Conference in September 1999 and approved, as presented, for submission to the Supreme Court the following month.}
 

^{II. INCONSISTENCIES IN THE EVIDENCE CODE.}

^{The Advisory Committee's policy of minimal revisions has led to a myriad of problems being ignored by the Committee. Most prevalent among them have been problems of consistency. Inconsistencies within the Evidence Code are of six types: (1) Rules that contain inconsistent provisions; (2) provisions within Rules that are inconsistent with their underlying principles; (3) inconsistencies among Rules addressing comparable problems; (4) provisions that have codified constitutional principles that are inconsistent with prevailing Supreme Court interpretations and inconsistently incorporated into the Rules; (5) Rules that are inconsistent with controlling case law; and (6) provisions that are inconsistent with the nature of our adjudicatory system and the roles of its participants.}

^{A. Inconsistent Provisions Within Rules}
 

^{Rules 405(a) & 608(a) (Character evidence of party or witness).(75)}

^{In our adjudicatory system, the jury is supposed to be the independent finder of facts, listening to the evidence from both sides and then drawing factual conclusions. The common law permitted character to be proven only with reputation evidence.(76)}

^{The reputation witness has to be familiar with the circles in which the person under attack travels and be familiar with other people's assessment of that individual. Only then could a reputation witness testify that the individual in question had a reputation for being, for example, an honest person in an action in which honesty is relevant to the case. Under Rules 405(a) and 608(a), character also may be proven with opinion evidence. If the same character witness also knows the defendant or victim, he can now testify to his personal opinion of the individual's relevant character trait. For example, "I think he is a nonviolent person." Consistent with the common law, evidence of specific instances of conduct continues to be inadmissible to prove character under either rule.(77)}
 
 
 

^{The perpetuation of this common law "specific act" evidence limitation, however, creates a conflict with the Federal Rules relating to opinion evidence. Opinions have no value independent of the opinion holder's basis. That basis, if explored, would likely be specific instances of conduct. As a consequence, expanding the permissible type of evidence to include opinions necessitates an expansion to specific acts as well. If it does not, the jury is not being permitted to perform its independent fact-finding role.}
 

^{For example, if a reputation witness testifies that he knows people in the community who know the defendant and he has heard them talking about the defendant relative to the defendant's character trait of honesty, that reputation witness can testify to his conclusion that the collective community belief is that the defendant is an honest person. There is, however, no way to cross-examine the reliability of that collective opinion through the reputation witness since its basis is within the collective minds of each member of the community. The only way the quality of the reputation witness's conclusions can be tested on cross-examination is by exploring the witness's knowledge of what he claims to know, that is, whether the character witness is truly familiar with what other people in the community are saying about the person in question. Therefore, the cross-examiner is permitted to ask such questions as "Have you heard that the defendant was fired from his job for filing false travel vouchers?" Supposedly, if the witness has not heard this information, he is less credible as a reputation witness. The assumption here, of course, is that the community has heard and is talking about this event. The jury is instructed, however, that they are not supposed to assume that the accusation of filing false travel vouchers is true. They are only supposed to consider the fact that the witness has not heard about the alleged transgression, and therefore, may not be credible.}
 

^{Now that the character witness's personal opinion is admissible under Rule 405, he can testify: "I believe that the defendant is an honest person." Unlike reputation testimony, the reliability of this opinion can be determined by examining the witness's basis. For example, if the opinion witness were asked "Why do you hold that opinion?" he might respond, "Because the defendant scrupulously understates his expenses on his tax returns and always acknowledges excessive change from store clerks." When this evidence is used to assess the value of the opinion, the jury, like the witness, is considering the specific instances of conduct for their truth. Not permitting this inquiry, requires the jury to accept the witness's opinion as a fait accompli--a role that is inconsistent with the jury's independent fact-finding responsibility.}
 

^{B. Provisions That Are Inconsistent With A Rule's Underlying Principles}
 

^{Rule 801(a) (definition of "statement" in the definition of hearsay). (78)}

^{The inadmissibility of hearsay is premised on the belief that hearsay evidence is unreliable because of problems with the out-of-court declarant's unexplored perception, memory and sincerity, as well as the ambiguity of the "statement". However, Rule 801(a) excludes from the definition of "statement," any unintended communications of the out-of-court declaring. The sole reason for this exclusion was the assurance of "sincerity" from the lack of intent.(79)}
 
 
 

^{Without justification, the Advisory Committee concluded that if a statement is sincere, because there was no intention to communicate, it must also be reliable. The remaining unexplored, and often untestable, problems of perception, memory and ambiguity are now supposed to be considered only on the question of weight that the jury should give to the evidence; yet the jury often has no means of weighing these factors because they cannot be explored when the out-of-court declarant is not available for cross-examination. This distinction, therefore, is inconsistent with the principles driving the hearsay concept.(80)}
 
 
 

^{C. Inconsistencies Among Comparable Rules}
 

^{a. Rule 801(d) (exclusions for the definition of hearsay) and Rules 803 and 804 (exceptions to the hearsay rule).}
 

^{After "hearsay" is defined by Rule 801(c),(81)}

^{Rule 801(d)(82)}

^{excludes from the definition several types of statements that otherwise would be excluded by Rule 802's general prohibition on the use of hearsay. Statements falling outside the scope of hearsay include, for example, admissions of a party opponent.(83)}

^{The Advisory Committee's reason for creating this new category of "exclusions from the definition," rather than allowing the use of admissions under an "exception," was that the common law admissions exception, unlike the other exceptions recognized under the common law equivalent of Rules 803 and 804, was not premised on the inherent reliability of admissions, but rather on the adversarial nature of the process.(84)}
 
 
 

^{While it is true that admissions are premised on the adversarial nature of the process, not all of the statements admitted under the exception rules are premised on the inherent reliability of the statements in question. The ancient document exception in Rule 803(16),(85)}

^{for example, is premised on necessity, not reliability. There is nothing about being old that guarantees reliability. While it is true that the issues in the litigation where the document is being used could not have been anticipated, every other conceivable reason for fabrication and distortion could have existed at the time of its creation.}
 

^{This same problem with the lack of reliability also exists under the new exception recently adopted by the Advisory Committee in Rule 804(b)(6),(86)}

^{which permits the free use of statements (regardless of their demonstrated reliability) of hearsay declarants whose unavailability was wrongfully procured by the party against whom the statement is offered. If the logic of Rule 801(d) were consistently applied, this new exception would be an exclusion from the definition, rather than an exception.}
 

^{Also within Rule 801(d)'s exclusion from the definition of hearsay are prior statements of a testifying witness that are either (1) inconsistent with his testimony, (2) consistent with the testimony and offered to rebut a charge of recent fabrication, or (3) prior identifications. These appear in Rule 801(d)(1)(A)-(C). The theory for admitting these statements for their truth as nonhearsay is that their reliability can be adequately explored through the examination of the witness being confronted with his own statements. If assurances of reliability, or at least an adequate exploration of unreliability, justifies the admission of these statements for their substantive truth, their appearance in Rule 801(d) is inconsistent with the theory underlying that classification.}
 

^{While the admission of the statements delineated in Rule 801(d)(1) (A)-(C) seems justified, a more appropriate classification would be under a new category of hearsay exception that makes the presence of the out-of-court declarant material to its admissibility (consistent with the current requirement in Rule 801(d) that the declarant be testifying and subject to cross-examination when the statement is offered). Such a classification would have the added benefit of creating a more appropriate home for the established exception, recorded recollection,(87)}

^{which requires a loss of memory but the presence of the declarant to authenticate the written record.(88)}
 
 
 

^{b. Rule 803(22), judgment of previous conviction, and both Rule 801(d)(2)(A), personal admissions and Rule 803(8)(C), findings of fact from agency investigations.}
 

^{Rule 803(22) recognizes a hearsay exception for "a final judgment, entered . . . upon a plea of guilty . . . adjudging a person guilty of a [felony]." This exception is inconsistent with Rule 801(d)(2)(A) that admits personal admissions of a party. Under Rule 801(d)(2)(A) a personal admission can come in the form of a guilty plea in a criminal case, regardless of the gravity of the crime. Consequently, a guilty plea to a misdemeanor charge is admissible in future judicial proceedings as a personal admission, but the judgment automatically entered on that plea is inadmissible hearsay.}
 

^{The exclusion of all civil judgments as hearsay (judgments entered after trials where extensive procedural process was afforded and the rules of evidence were followed) is inconsistent with the admission under Rule 803(8)(C) of "factual findings resulting from investigations authorized by law." A hearsay exception permitting the admission of civil judgments would permit the admission of the substantial equivalent of evidence currently admissible under Rule 802(8)(C)--the facts upon which those judgments must have been based. Civil judgments, however, offer a far greater degree of reliability than agency findings. Factual findings from administrative agencies are inherently less reliable because agency investigations are not adversarial in nature, do not involve the same level of discovery for participants, involve less procedural process, generally do not follow the rules of evidence, and findings are often tainted by agency biases.}
 

^{D. Inconsistencies With The Constitution}
 

^{Some Rules within the Evidence Code have codified what the drafters believed the right of confrontation guaranteed criminal defendants.(89)}

^{Since the early 1970's, however, the Supreme Court's interpretation of the Sixth Amendment guarantee of confrontation has changed, but the Rules' provisions premised on that interpretation have not been revised to reflect the change.(90)}

^{They have remained frozen as the Bill of Rights guarantee has evolved. For example, prior to Ohio v. Roberts it was believed that prior testimony from one criminal defendant's trial could not be used against another criminal defendant.(91)}

^{However, in Roberts the Court held that the confrontation right only guarantees that the government will use good faith efforts to locate and produce a witness at the defendant's trial, and that only reliable evidence will be employed in lieu of the unavailable witness. By this interpretation, nothing in the Constitution would preclude the government from using a transcript of a witness's testimony from the trial of defendant A against defendant B if the witness who testified at defendant A's trial is adequately shown to be unavailable at the time of defendant B's trial. Rule 804(b)(1), however, permits prior testimony to be used in criminal cases only against the same party against whom it was previously used--"if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." Consequently, for antiquated reasons, the Rule precludes what the Constitution is no longer interpreted as prohibiting--creating inconsistency and confusion among the rules.}
 

^{Similarly, in Rule 803(8)(B), which creates a hearsay exception for public records and agency reports that contain statements of "matters observed pursuant to duty imposed by law," such statements are made inadmissible in criminal cases if they were made "by police officers and other law enforcement personnel." While this restriction is consistent with one scholar's interpretation of the confrontation right,(92)}

^{Supreme Court decisions do not compel the limitation.}
 

^{The codification of constitutional rights is undesirable for a number of reasons. First, it is unnecessary since the Bill of Rights guarantees modify all Rules regardless of whether they are explicitly restated in the provisions. Second, since all constitutional rights have not been codified in all of the hearsay exceptions, subsequent constitutional developments will result in different applications of the same constitutional right in the Rules.(93)}

^{Third, by attempting to codify the defendant's right to confront witnesses, the Rules simply restrict admissibility in "criminal cases". As a result, the Government also gets the benefit of the "confrontation right." Consequently, criminal defendants are precluded from using favorable evidence against the federal government elicited from a witness under oath in a previous state prosecution. Where such evidence is sufficiently reliable to be introduced in a civil action, there is no reason why the evidence should not be admissible by a defendant against the Government in a criminal case. Fourth, the interpretation of the constitutional right in the codification may place unnecessarily restrictive limitations on some of the more reliable types of hearsay, e.g. "confrontation" restricting evidence tested under oath or matters personally observed and reported by agency personnel.}
 

^{It might be argued by those who support these provisions that what appears to be a codification of constitutional rights, like the right of confrontation discussed above, is actually nothing more than factual elements thought to be necessary when particular forms of hearsay are being used in criminal cases. In other words, the fact that certain aspects of the hearsay exceptions are similar to definitions of constitutional rights that have subsequently been abandoned by courts is merely coincidental. This could explain the extension of the confrontation right to the government, as well as the defendant, but that explanation would not explain why these same protections are not extended to civil cases. But that problem aside, if these requirements or restrictions were necessary for fairness in a criminal case, there is no apparent reason for selectively incorporating them only in Rules 804(b)(1) and 803(8). The absence of such a condition in the co-conspirator admissions rule in 801(d)(2)(E) (94)}

^{illustrates the arbitrary way in which this constitutional looking right has been incorporated in the rules.}
 

^{There does not appear to be a logical reason why statements admissible pursuant to Rules 804(b)(1) and 803(8) need greater indicia of reliability than the co-conspirator admission exception. In recent decisions the Supreme Court has held that Rule 801(d)(2)(E) did not carry forward many of the procedural requirements of the common law rule. The Court reached this conclusion because those requirements were not explicitly delineated in Rule 801(d)(2)(E). In United States v. Inadi (95)}

^{the Court held that the first of the Ohio v. Roberts two prong decision,(96)}

^{that required the government to demonstrate that it has used reasonable efforts in an attempt to produce the declarant at trial, was not applicable to co-conspirator admissions because the right of confrontation would serve no useful purpose. In Bourjaily v. United States (97)}

^{the Court held that the widely followed Glasser (98)}

^{rule, that required the admissibility of co-conspirator admissions to be determined from independent evidence (prohibiting courts from considering the content of the hearsay statement being offered to determine its admissibility) was not carried forward in the codified rules. In the same Bourjaily opinion the court held that the second prong of the Ohio v. Roberts decision--the demonstration of reliability--was automatically satisfied by the applicability of the admissions exception--an exception that was premised on the adversarial nature of the process, not the inherent reliability of the statements.}
 

^{Thereafter, through a series of decisions, the Supreme Court has demonstrated that the right of an accused to literally confront his accuser is limited by the hearsay exception under which the Advisory Committee and Congress has catalogued the rule. Unless an exception appears in Rule 804, where the demonstration of unavailability of the declaration is material to admissibility, the Court has never imposed the obligation on the government as a constitutional imperative. The Court has never found a constitutionally imposed demonstration of the declarant's unavailability when hearsay has been admitted against a criminal defendant under either Rule 803 exceptions (where the availability or unavailability of the declarant is explicitly made immaterial), or as an exclusion from the definition of hearsay in Rule 801(d).}
 

^{E. Inconsistencies With The Controlling Case Law}
 

^{a. Rule 612 (writing used to refresh memory). (99)}
 
 
 

^{When a party uses a writing to refresh a witness's recollection, Rule 612 states that the adverse party is entitled to (1) have the document produced at trial (if, for example, the witness reviewed a document prior to taking the witness stand to refresh his recollection), (2) inspect it, (3) cross-examine the witness about it, and (4) "introduce in evidence those portions which relate to the testimony of the witness." Rule 612 and accompanying Advisory Committee commentary do not place any restrictions on the purpose for which the writing may be "introduced in evidence." Judges have consistently refused to admit these writing for any purpose other than impeachment because no foundation needs to be laid when they are used for refreshment purposes that ensures either authenticity or reliability of the statement.(100)}

^{Indeed, it has even been acknowledged that the written statements can be known to be false.(101)}
 
 
 

^{If the statement was created by the testifying witness, it could, of course, be offered as a prior inconsistent statement--limited to the purpose of demonstrating that the witness testified inconsistently, and, therefore lack of credibility. However, if the writing were created by a third party, it cannot even be introduced for impeachment purposes since the inconsistency will not have been the witness's. Therefore, its only relevance would be for the truth of the inconsistent matters asserted, and Rule 612 is not an exception to the hearsay rule.}
 

^{The Evidence Project has suggested that Rule 612 be revised to explicitly limit the introduction of such evidence to "establishing similarities between the witness's testimony and the writing."(102)}

^{Rule 612 is also deficient in two additional respects: (1) that it refers only to "adverse parties," rather than all other parties having the right to inspect and use the writing, and (2) it does not address the regularly occurring, and exceptionally difficult problem of whether refreshing recollection with writings before, as well as during an examination, waives the attorney-client privilege protection for the writing--an issue on which courts are widely split.(103)}
 
 
 

^{b. Rules 803(8)(B) & (C) (public records and reports).(104)}
 
 
 

^{The hearsay exception for government records is the public equivalent of the hearsay exception for private business records.(105)}

^{Subsection (B) addresses "matters observed pursuant to a duty imposed by law" and (C) addresses "factual findings resulting from an investigation made pursuant to authority granted by law." Clearly, the matters "observed" by public officials in subsection (B) are inherently more trustworthy than the "factual findings" from investigations in subsection (C) because the former are based on personal observations. Nevertheless, greater restrictions are placed on the use of the "matters observed"--for instance, the rule completely excludes the use of matters observed by law enforcement personnel in criminal cases. Thus, criminal defendants are not being permitted to use such observations against the government.}

^{In contrast, the factual findings in (C) are made admissible in civil cases and against the Government in criminal cases. Courts have uniformly ignored the limitation in (B) and substituted the less restrictive limitation in (C).(106)}

^{In addition, the term "law enforcement personnel" in (B) has also been ignored. Instead of excluding all observations of all law enforcement personnel, the courts have construed the provision as permitting the use of law enforcement observations if they were made in the process of performing a "ministerial act" that would not have been tainted by their prosecutorial bias.(107)}
 
 
 

^{F. Inconsistencies With The Nature Of Our Adjudicatory System And The Roles Of Participants}
 

^{Rule 703. Basis of opinion testimony by experts. Although expert witnesses are allowed to assist the jury in performing its role as the independent finder of facts, Rule 703 permits the expert to rely on facts and data that the jury will not be permitted to consider because they are otherwise inadmissible.(108)}

^{Nevertheless, the jury is being asked to accept the expert's opinions that have been based on the truth of that evidence. Permitting the expert to testify in this fashion fundamentally changes the expert's role in the trial. It permits the expert witness to advocate conclusions that he would not be willing to reach if he were the finder of facts denied the use of the same evidence. Rather than assisting the jury, as the exclusive finder of facts, the expert has become an independent fact finder in her own right--a super-thirteenth juror encouraging a conclusion in a case that is factually different than the one heard by real jurors. The expert is encouraging a conclusion based on the "truth" as only she knows it. This is inconsistent with the historical roles of both the expert and the jury.(109)}
 
 
 

^{G. Selected Other Inadequacies Within The Evidence Code}
 

^{The preceding discussion only highlighted examples of one type of problem. Numerous additional problems of logic, fairness, ambiguity and inadequacy have been identified. For example: (1) the rule on conditional relevance, Rule 104(b), is confusing, illogical, incomplete and unnecessary;(110)}

^{(2) judicial notice provisions in Rule 201 are incomplete and address only notice of adjudicative facts, not legislative facts or law;(111)}

^{(3) presumptions in Article III have adopted the "bursting bubble" theory that has resulted in significant inconsistency in its application because judges fundamentally disagree with the theory and are dissatisfied with the results it compels;(112)}

^{(4) there are no specific privilege rules;(113)}

^{(5) there is no bias rule;(114)}

^{and (6) the rules for screening expert witnesses and their bases, Rules 702 and 703, are both ambiguous and confusing.(115)}
 

^{In practice, many of these inconsistencies and poorly drafted rules have been accommodated by good practice in the form of strained judicial interpretations, alternative evidentiary theories, or simple disuse. The experience with Rule 407, Remedial Measures, is a good example. While the language of the Rule restricted its application to actions in which remedial measures are being offered to prove "negligence of culpable conduct," courts had to distort the Rule's language to accommodate the needs of product liability actions where neither "negligent" nor "culpable conduct" was at issue. The mere placement of a defective product in commerce gave rise to liability. Therefore, when evidence of a manufacturer's change in product design was used as an admission by the manufacturer of the defective nature of its produce--not of negligence of culpable conduct on its part--Rule 407 was technically inapplicable. Therefore, courts had to distort the language of Rule 407 in order to exclude the evidence, and thereby achieve the underlying policies of the Rule. It was not until virtually all federal appellate courts had spoken, and unanimously agreed that the rule was inadequate,(116)}

^{that the Advisory Committee proposed a revision that mimicked the prevailing practice. More leadership, or at least responsiveness, should be demanded from the Advisory Committee charged with maintaining a code of procedural law that can no longer be changed by judicial decisions.}
 

^{The most prominent and persistent example of neglect by the Advisory Committee is Article VII of the Federal Rules of Evidence. The rules in this article that address the admissibility of expert witness testimony are, as previously noted, inconsistent with the classical roles of both expert witnesses and the triers of fact and set no standards for judicial screening of expert testimony, thereby precluding any hope of consistency and uniformity among the more than 800 trial judges in our federal system. After decades of experience with the inadequacies of this Article, it was not until five years after the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceutical, (117)}

^{where the Court interpreted the Rules as imposing a difficult screening function on trial judges, that the Advisory Committee even proposed a revision to any of these rules. Despite the existence of acknowledged real-life problems, the Advisory Committee chose to wait and see how judges responded to the Daubert decision before attempting revisions. Unfortunately, the Committee's extended deliberations have produced neither complete nor adequate proposals.}
 

^{III. EXPERT WITNESS RULES IN ARTICLE VII: A STUDY OF CONTINUED NEED AND NEGLECT}
 

^{Since the Supreme Court's decision in Daubert, where the Court interpreted Rule 702 as rejecting the "general acceptance in the relevant science" test originally enunciated in Frye v. United States,(118)}

^{and replaced it with a discretionary judicial screening test, federal district judges and magistrates have been struggling to understand and consistently perform the "new" screening role that the Supreme Court interpreted Article VII rules as creating.}
 

^{In screening the admissibility of scientific evidence,(119)}

^{the Daubert decision delineated a number of factors that judges should consider in assessing the admissibility of scientific evidence in addition to general acceptance in the relevant science--(1) tests that have been conducted, (2) peer reviews in scientific journals, and (3) the rate of error. Unfortunately, it has never been clear how trial judges will be capable of independently assessing the admissibility of scientific evidence by the enunciated factors without resorting to the general practices of those in the relevant science to understand, quantify and apply those factors. As a consequence, if this is what judges are compelled to do, it appears that the reality of this practice will be no different than it was under Frye. In fact, since the Daubert decision, admissibility decisions of scientific evidence have not been significantly different from pre-Daubert decisions under Frye.(120)}

^{And because of this reality, most states that have addressed the question of judicial screening of scientific expert testimony have rejected the Daubert decision--staying with the Frye general acceptance standard.(121)}

^{As previously noted, last year the Advisory Committee proposed revisions to Rules 701, 702 and 703.}
 

^{A. Rule 701. Opinion Testimony By Lay Witnesses}
 

^{The revision to Rule 701 would add an additional restriction to the admissibility of lay opinion testimony. In addition to that testimony having to be "rationally based on the perception of the witness" and "helpful to a clear understanding of the witness' testimony or a determination of a fact in issue," the Committee wants to restrict lay opinions to those "not based on scientific, technical or other specialized knowledge."(122)}
 
 
 

^{The purpose behind this revision is to prevent parties from avoiding the requirements of Rule 702--requirements that establish standards that the presiding judge must apply in screening the expertise of the individual, as well as the basis of his opinions--by offering the expert as a lay witness whose testimony need only be "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue."}
 

^{While this revision should cure the problems of parties avoiding pretrial expert witness disclosures(123)}

^{and judicial screening at trial under Rule 702, it will create problems for lay witness opinions since virtually all opinions, lay or otherwise, are based on some level of "knowledge" or expertise acquired from special experience. For example, under the Committee proposal, it might reasonably be argued that a lay witness must be shown to be qualified to conclude that the substance he saw "looked like marijuana" or "smelled like marijuana"? This provision undoubtedly will give rise to litigation over the admissibility of lay opinions that previously would not have arisen.}
 

^{B. Rule 702. Testimony by Experts (124)}
 
 
 

^{The revisions to Rule 702 are helpful, but incomplete.(125)}

^{These revisions attempt to codify the general standard for screening the reliability, and hence the admissibility, of proffered expert testimony under the Supreme Court's Daubert decision. The revisions accept Daubert's central premise that, as a pre-condition to admissibility, the trial judge can and must resort to a series of non-exclusive factors in order to determine for himself whether the proffered testimony is reliable. The delineated standard is intended to encompass all of the factors identified in Daubert and its progeny and to extend their application to all types of expert witnesses, not just scientific experts. Again, as in the original promulgation of Article VII rules, neither the Advisory Committee's proposal nor its supporting commentary explicitly states that the "general acceptance" test enunciated in Frye was intended to be abolished. Of course, that intention is implicit since the stated purpose is to codify the general approach to the screening of expert announced in Daubert.}
 

^{The extension of the Daubert screening requirement to technical, as well as scientific evidence, appears to be justified, with different factors, of course, being emphasized in that judicial screening.(126)}

^{The confusion created by the Daubert decision exists under the Evidence Code because separate rules do not address (1) the qualifications of the expert witness, (2) the scientific, technical and other specialized principles and methodologies employed, and (3) the factual basis for the opinion. Under both current Rule 702 and the Advisory Committee's proposed revisions, expert qualifications, principles methodologies and applications employed by the expert and permissible factual bases are all lumped together in Rule 702. There is no need for this, and the Advisory Committee's insistence on perpetuating the Rules' existing structure only perpetuates confusion.(127)}
 
 
 

^{In a survey of all federal trial judges by the Evidence Project,(128)}

^{83% of those responding indicated that they would prefer that the standards by which the qualifications of expert witnesses are judged, and the standards for screening the basis of individual opinions, be addressed in separate rules.}
 

^{Since the Daubert decision interpreted the rules of evidence, it is unclear why the Advisory Committee is attempting to codify the Daubert decision rather than promulgating different rules that more clearly delineate what the Advisory Committee believes the screening responsibilities for presiding judges should be, and set forth the standards by which those responsibilities are to be carried out. The Supreme Court's interpretation of a poorly written rule should not define the parameters of how expert testimony should be screened. Phrases in the proposed revisions such as "testimony . . . sufficiently based upon reliable facts," "testimony [that] is the product of reliable principles," and "methods reliably [applied] to the facts" offer little more than platitudes intended to give the appearance of direction. How presiding judges are supposed to identify a "reliable fact" is anyone's guess. If there are conflicting opinions about the reliability of principles and methodologies, how is the court to determine whether their use in a particular context, and the manner in which they were employed, were reliable? Are judges supposed to apply a scientific standard of accuracy and reliability, that can exceed 98%, or something less? The proposed rule offers absolutely no guidance for determining reliability of an opinion other than the tautology that the opinion must be based on "reliable fact or date" and "reliable principles and methodologies" that are "reliably applied."(129)}

^{Consequently, judges have no option other than relying on experts in the relevant science as they define it--creating a de facto, rather than a de jure, Frye test. As stewards of the Evidence Code, the Advisory Committee can meaningfully respond to the identified problems within the rules and expressed needs of the judiciary only by redrafting the expert witness rules.}
 

^{In contrast, the revisions proposed by the Evidence Project would limit Rule 702 to regulating the objective qualifications of expert witnesses.(130)}

^{The basis of their testimony would be screened exclusively by an expanded Rule 703. This proposal was overwhelmingly supported by the judges responding to the Evidence Project's survey. Eighty-three percent of the respondents believed that the Project's proposal for Rule 702 was preferable to the current rule. The idea in the Project's proposal for Rule 703--having separate provisions addressing the factual basis of expert opinions and the principles, methodologies and applications upon which the expert's conclusions were premised--was supported by 85% of the responding judges.}
 

^{C. Rule 703. Basis of Opinion Testimony by Experts (131)}
 
 
 

^{The most disappointing and inadequate revisions were proposed by the Advisory Committee in Rule 703. While the current rule is entitled "Basis of Opinion Testimony of Experts," both the Supreme Court in Daubert and the Advisory Committee in its commentary to its proposed revisions, expressed the view that Rule 702, not Rule 703, controls the standard by which the "basis" is evaluated.}
 

^{While the problems created by current Rule 703 are significant, virtually all were ignored by the Advisory Committee. Skirting the fundamental substantive issues, the Advisory Committee's proposal addresses only a procedural detail--when the inadmissible evidence relied upon by the expert can be disclosed to the finder of facts.}
 

^{Current Rule 703 is problematic because it gives expert witnesses permission to rely on factual information in forming their opinions about which the experts will testify, even though the finders of facts themselves will likely not be permitted to hear the basis for the opinion. So long as the inadmissible evidence is "of a type reasonably relied upon by expert in the particular field in forming opinions or inferences," the expert may rely on it, and may encourage the jury to draw conclusions based on this inadmissible evidence that he would not be willing to support in the absence of the additional facts. In other words, he is advocating conclusions that he would not be willing to reach if he were the finder of facts denied the use of the same evidence. This strained situation is further complicated by the fact that many courts will not permit the expert to delineate in his testimony the inadmissible facts upon which he has relied.(132)}

^{When courts have permitted the expert witness to identify the inadmissible underlying facts, a limiting instruction is always given to the jury--warning its members that the information being heard is not admissible, and may not be used for substantive purposes; only for the purpose of assessing the value of the experts opinion. While confusing, and perhaps illogical, this practice has had a long history under the common law.}
 

^{A related problem is the "reasonably relied upon" standard itself. Neither Rule 703, the Advisory Committee Notes, nor the Advisory Committee's current proposal addresses the question of whether the standard of "reasonable reliance" is a generic or fact specific standard. For example, assume that an expert's conclusion is based upon information supplied by third parties, like coworkers or siblings. If interviews with these people are normally part of the expert's investigation and analysis, is the fact that the information was acquired from such interviews sufficient, without more, to satisfy the standard? To what extent does Rule 703 require the presiding judge to inquire about the manner in which the interviews were conducted?(133)}

^{If, for example, the facts were acquired through a questionnaire, must it be shown that the questionnaire was approved and administered by a trained individual, or could the lawyer's paralegal have solicited the facts through interviews with those individuals? If the premise of Rule 703 is the ability of experts to separate the "wheat from the chaff,"--thereby giving an added assurance of reliability--doesn't there have to be some showing that the expert has actually applied her expertise and assessed the reliability of the particular pieces of evidence that may determine the outcome of the trial?(134)}
 
 
 

^{It could be argued that the fact that the "reasonable reliance" standard is one of practice, not trial preparation, adequately addresses this concern. While a "practice" standard is essential, unless the presiding judge checks to ensure that the profession's standards are being adequately applied by experts who are often biased, an important part of the judge's gate-keeping function is being eliminated--thus, partially returning courts to the Frye "general acceptance" standard that the Advisory Committee professes to reject.}

^{In a limited area of expert witness testimony the common law permitted expert witnesses to rely on information that the trier of facts could not consider in arriving at the same conclusion. Under the common law, medical experts were permitted to rely on a patient's statements of medical history and causation, if either were crucial to the diagnosis or treatment, to testify to the conclusions that were formed based on the doctor's acceptance of the truth of those statements, and to repeat those statements in his testimony along with his opinions. The jurors were instructed, however, that they could only rely on the doctor's opinions.(135)}

^{They could not accept for their truth the substance of the statements that the doctor had accepted and relied upon. The inadmissible statements of history and causation could only be used to assess the value of the doctor's conclusions.}
 

^{When the Federal Rules of Evidence were promulgated, this logically questionable practice was eliminated in Rule 803(4), Statements for Purpose of Medical Diagnosis and Treatment.(136)}

^{This rule made the patient's statements of medical causation and medical history admissible for truth through the medical expert witness's testimony if they were reasonably pertinent to diagnosis or treatment. Inexplicably, however, as this problem was being resolved for medical experts, it was being created in Rule 703 for all other expert witnesses by permitting them to rely on the same type of inadmissible evidence--evidence that is "of a type reasonably relied upon by experts in the particular field in forming opinions or inference."}
 

^{The Advisory Committee's current proposal does not address this problem. Instead, it attempts to "fix" it by creating a standard for deciding when the expert witness should be permitted to delineate these inadmissible facts.(137)}

^{It permits the facts to be disclosed only if "their probative value substantially outweighs their prejudicial effect." This is the reverse of the burden in Rule 403 for the exclusion of relevant evidence.(138)}

^{Here the relevant evidence can only be admitted if the "substantially outweighs" burden is met.}
 

^{This solution creates more problems than it addresses. First, if the reliability standard is not satisfied, the finder of facts will not be permitted to hear all of the complete factual basis of the expert's opinion, and therefore, will have no adequate way of assessing the opinion's value. Second, if the jury is convinced to accept unjustified conclusions (that are only marginally supported by the record), because the expert advocated them, the jury will not be serving as the independent finder of facts. Third, this permissible reliance on inadmissible and undisclosed facts by the expert witness has changed the expert's role from one who assists the finder of facts in drawing conclusions based on the record before it, to one of advocating conclusions based on the truth as only the expert knows it.}
 

^{In applying the Advisory Committee's proposed balancing test to determine whether inadmissible evidence can be disclosed, the presiding judge presumably will assess the reliability of the evidence. If the evidence is "super-reliable," to the point where its value is so high it "substantially" outweighs the danger of unfair prejudice, it is unclear why that determination should not make the inadmissible evidence admissible for the same substantive use by the jury. Admitting the evidence in this context is particularly compelling since the expert witness is present and presumably able to explain how she evaluated the evidence and concluded that it was sufficiently trustworthy to be relied upon.(139)}
 
 
 

^{The Evidence Project's proposed revision to Rule 703 take a giant step backward to the common law. (140)}

^{The Project's proposed rule would explicitly preclude experts from relying upon facts that have not been proven through admissible evidence. This would avoid the substantive conflicts that currently exist because conclusions could no longer be advocated that are not completely supported by admissible evidence. The Project's proposal, however, would not lose the use of the otherwise inadmissible evidence that is "of a type reasonably relied upon by experts in the particular field in forming opinions." Rather than giving the carte blanc approval in the current rule to the use of such information by experts, the Evidence Project's proposals in Rule 703(c) would require the expert to demonstrate the reliability of such evidence under a new exception to the hearsay rule in Rule 803(5), Statements Employed in Expert Testimony.(141)}

^{After such a demonstration, (which is not significantly different than the balancing test being proposed in the Advisory Committee--"probative value substantially outweigh potential unfair prejudice"), the otherwise inadmissible evidence would then be admissible. Consequently, the finder of facts would be permitted to hear and consider the statements in the same way as the expert--as substantive evidence. As a result, all role conflicts currently within Rule 703, and perpetuated in the Committee's proposal, would be avoided.}
 

^{The Evidence Project's proposed revision of Rule 703 goes much further. Since the Project's proposed revisions to Rule 702 would limit that rule to regulating a witness's expert qualifications, its proposed revisions to Rule 703 would make that rule the exclusive source for the standards by which judges would screen the opinions of expert witnesses.}
 

^{After generally providing for the admission of expert witness testimony that "will help the trier of fact understand the evidence or determine a fact in issue, " the Evidence Project's proposal provides the standard for screening principles, methodologies and applications in subsection (b). Unlike the Advisory Committee's proposal, an explicit standard is provided--the proponent of the evidence must demonstrate by a preponderance of the evidence that all principles, methodologies and applications employed by the expert produce credible results.(142)}

^{While the Advisory Committee notes to the proposed rule indicates that "the pertinent admissibility requirements [must be] met by a preponderance of the evidence," it gives no indication of what is supposed to meet that standard. For example, it must be established that "the testimony is the product of reliable principles and methods." If the presiding judge is gauging reliability by peer review and general acceptance in the relevant scientific field, a "preponderance of the evidence" standard could mean nothing different than "more likely than not accepted in the relevant science." Defined by this standard, of course, we have returned to the 98-99% accuracy standard of the hard sciences. Preponderance of evidence should be tied to "credible results" measured from a nonscientific perspective, not the standard of "reliability" that has a distinctly different scientific meaning.}
 

^{Other problems within Article VII, specifically in Rules 704 and 705 have been ignored by the Advisory Committee. As explained below, the ultimate issue rule that was abolished in Rule 704(a) has been partially restored in Rule 704(b) without justification or positive consequence. Rule 705, which permits experts to give opinions without previously disclosing their underlying factual basis, is inconsistent with the screening role assigned to the presiding judge, inconsistent with the independent fact-finding role of the jury, and generally incompetent litigation strategy.}
 

^{D. Rule 704. Opinion on Ultimate Issue}
 

^{The ultimate issue rule under the common law precluded litigants from offering opinion testimony on factual issues the jury must decide. The rule was premised on the belief that such testimony usurped the function of the jury.(143)}

^{It was assumed that a jury, upon hearing an expert answer the very question they must decide, will simply adopt the expert's conclusion and fail to reach an independent decision based on all the evidence offered at trial.}
 

^{This idea was rejected in the Rule 704.(144)}

^{As originally adopted the rule explicitly forbade the exclusion of any testimony on ultimate issue grounds.(145)}

^{A expert could be asked to voice an opinion on any disputed issue without concern for whether the answer would usurp the function of the jury. In 1984, however, Congress amended Current Rule 704.(146)}

^{In what now appears as Rule 704(b) it revived the ultimate issue rule in cases requiring a jury determination of a criminal defendant's mental state.(147)}

^{Specifically, the Rules now forbids an expert witness from offering an opinion couched in legal terms about the defendant's mental state at the time of the crime. Therefore, a defendant who enters a plea of not guilty by reason of insanity may not call a psychiatrist and ask whether, in the psychiatrist's opinion, the defendant was legally insane at the time of the charged crime. A defendant may, however, call a psychiatrist and elicit testimony about a mental disorder that would, under applicable law, allow for a defense of insanity.(148)}

^{The defendant's expert may testify, for example, that the defendant suffers from schizophrenia; what the consequences of the disease may be on the ability of the person who possesses it to perceive reality and conform his conduct to the requirement of the law; what the symptoms of the disease are and how the defendant has betrayed those symptoms. The expert may not, however, venture an opinion on whether the defendant possessed a specific intent when the crime was committed, or apply the law to the facts and offer a conclusion about the defendant's legal sanity at the time of the alleged crime.(149)}

^{In the same fashion, the prosecutor may not call an expert witness and ask whether, in the expert's opinion, the defendant had formed the required intent at the time of the alleged crime.(150)}

^{The only testimony that the revision eliminates from the trial is the most useful testimony the expert could offer--the expert's opinion about the defendant's state of mind at the time the crime was committed.}
 

^{In originally adopting Rule 704 (now codified as Rule 704(a)), the drafters of the federal rules sought to abolish the ultimate issue rule.(151)}

^{At the time, judicial authority supported such an abolition.(152)}

^{Despite this seemingly simple objective, questions regarding the precise meaning of Rule 704 remain unanswered and remnants of the ultimate issue rule have continued to surface.(153)}

^{Most significant among these, but unaddressed in the recently proposed revisions, is whether subsection (a) precludes experts from applying applicable law to the facts of the case.(154)}
 
 
 

^{Subsection (b) was enacted in the wake of John Hinckley's attempted assassination of President Ronald Reagan.(155)}

^{Mr. Hinckley successfully defended himself by proving that he was not guilty by reason of insanity. Congress reacted to public outrage over the verdict by passing the Insanity Defense Reform Act of 1984.(156)}

^{In that Act, Congress included the limitation on expert witness testimony about the mental state of a criminal defendant. Congress's reasons did not support the provision it enacted.(157)}

^{It cited the disproportionate weight juries give to expert testimony on mental states, the "soft" nature of the science of psychiatry, and the confusing nature of such testimony. Even if these reasons were legitimate, the enacted provision did not achieve its stated goal.}
 

^{Rule 704(b) is so focused in what it excludes, it admits virtually ninety-nine percent of the "soft" psychiatric testimony that embarrassed the Congress and enraged the public.(158)}

^{Expert witnesses continue to testify to mental disorders that criminal defendants may or may have possessed. The experts continue to testify to the attributes of the disorder and to its effects on the defendant. The limitation merely requires that the jury, rather than the psychiatrist, apply the law to the facts and reach a conclusion as to the defendant's mental state.(159)}

^{In reality, the limitation imposed by subsection (b) adds to, rather than diminishes, jury confusion.(160)}

^{After experts present competing diagnoses, the jury must decipher the meaning of each, perhaps choose one, and decide whether that diagnosis equates with the applicable legal standard. If experts were permitted to present a diagnosis and to relate that diagnosis to the legal definition of insanity, the jury would be able to make a far more informed decision.}

^{It is important to remember that the jury will be hearing competing experts and does not have to accept the diagnosis of either, or either's application of the law to their diagnoses.(161)}

^{Any limitation on this testimony after the jury has already heard the entire factual predicate simply hides probative information from the jury--a conclusion the jury probably has already anticipated--without justification or benefit. The expert's ideas about the relationship between a psychological diagnosis and the applicable legal standard is the critical final link in the expert's extensive testimony that should not be severed from the trial.(162)}

^{No one is better able to bridge the gap between psychiatry and the societal standard reflected by the insanity defense than those experts who are members of both communities.}

^{E. Rule 705. Disclosure of Facts or Data Underlying Expert Opinions}
 

^{Regardless of how experts are presented with the facts upon which they base their opinion--from personal examination of an individual, for example, or from information supplied prior to testifying or while testifying through a hypothetical question--the revelation of that basis is critical to the ability of the jurors to assess the value of those opinions. For the jurors' purposes, however, it is not critical that the basis of an opinion be disclosed before the opinion is given. The same, however, is not true for the screening role being performed by the presiding judge.}
 

^{The very nature of screening implies a revelation of basis before a conclusion is given. Without prior disclosure, the presiding judge is incapable of determining either the relevance of the opinion or the sufficiency of its factual, scientific or technical bases. Moreover, without prior disclosure, the court cannot exclude the expert's opinion before it is heard by the jury and influences its verdict, regardless of the limiting instruction that might be given. Rule 705 needs to be revised to require the disclosure of the expert's factual basis before any opinion is offered.(163)}
 
 
 

^{Half a decade after the Daubert opinion, the Advisory Committee has proposed its first revisions to Article VII. As illustrated in the preceding discussion, this has not been because Article VII does not pose serious "real life problems." The reason given over three years ago was that the Committee wanted to see how judges would respond to the problems.}
 

^{This wait-and-see attitude, however, reflects a fundamental misunderstanding of how evidentiary practices are controlled and evolve under a code system of rules, as opposed to the common law that is replaced. When the application of codified rules does not produce just results, judges no longer have the power and flexibility that they had under the common law, to redesign the rules to fit the particular factual circumstances confronting them. The loss of flexibility (and of the fairness that it ensured) was the trade-off for the consistency of the codified rules. This loss accentuates the management responsibilities of those filling the shoes of the common law judges--the members of the Federal Rules of Evidence Advisory Committee. If crisis intervention is to be the daily management philosophy of the Committee (perhaps a credible approach for the day-to-day management of a procedural code), at least every quarter of a century the entire Evidence Code should be reexamined from the perspective of trying to making it better, rather than simply keeping it working.}
 

^{Over time, and certainly after more than twenty-five years, the consistency permitted by the Committee's reserved management philosophy comes at too great a cost to the Evidence Code. Too many inconsistencies, illogical concepts, and ill-advised policies--bad rules--have gone unattended for so long they have become entrenched doctrine.}
 

^{IV. THE EVIDENCE PROJECT'S EXPERIENCE WITH THE}

^{ADVISORY COMMITTEE}
 

^{Working with the Advisory Committee has been difficult. In 1994, twenty years after the Federal Rules of Evidence were adopted, the American University's Washington College of Law established an Evidence Project to examine the Rules and the practices that have developed under them. Two years later, the Project published a 350-page Report containing analysis, proposed revisions to the Rules, and supporting commentary.(164)}

^{These proposals sought to correct the inconsistencies previously identified.}
 

^{In October of 1996, as a courtesy to the Judicial Conference of the United States, the Project sent a final draft of the Report to the Conference's Chair, Chief Justice Rehnquist, and to the Chairperson of the Conference's Advisory Committee on the Federal Rules of Evidence, Judge Fern Smith. A little more than one month later, without having acknowledged receipt of either that Report or of any of the preliminary drafts that preceded it, without notifying the Evidence Project that its proposals were being reviewed, and without offering the Project an opportunity to be heard on any issue, the Advisory Committee summarily(165)}

^{rejected the Report in its entirety. The Judicial Conference notified the Evidence Project by letter that its Advisory Committee had decided to engage its rule-making process only if it was necessary to obviate "real-life problems caused by the imperfect rules."(166)}

^{At the very least, the method in which the Evidence Project's proposal was handled appears inconsistent with procedures established by the Standing Committee for handling proposals from the public--including distribution of the proposals to each member of the committee and a public meeting to discuss the Committee's action on the proposal.(167)}
 
 
 

^{Approximately one year later, in November 1997, the Evidence Project sought direction from the Advisory Committee on whether portions of its comprehensive Report should be resubmitted to the Committee now that it had been published, the debate had continued, and responses to specific proposals had been received on the Project's webpage and through the Project's judicial survey. The answer was no. "[T]he Committee found no new circumstances justifying a new comprehensive review of the Evidence Rules as suggested by your Project's report. While considering new proposed amendments to individual rules, however, the committee has accounted for your Project's . . . recommendations."(168)}
 
 
 

^{In contrast, some of the problems actually addressed by the Advisory Committee in its December 1997 revisions were, by any standard, insubstantial:}

^{(1) the creation of a new rule, 807, into which it moved, unchanged, the identical residual hearsay exceptions that appeared in Rules 803(24) and 804(b)(5);}

^{(2) the problem of the intentional elimination of witnesses by parties was addressed by creating a new hearsay exception for all previous statements made by those eliminated witnesses, regardless of their reliability;(169)}

^{(3) Rule 407, Remedial Measures (which explicitly excluded evidence of remedial measures only when offered to prove "negligence or culpable conduct") was extended to product liability cases where neither negligence nor culpable conduct are at issue--an extension that already had been read into the rule by virtually every judicial circuit;(170)}
 

^{(4) the revision of Rule 801(d)(2) (admissions), to sanction a practice already sanctioned by the Supreme Court in United States v. Bourjaily:(171)}

^{the revision permitted judges to consider the content of a statement in question to determine its admissibility (generally referred to as "bootstrapping,") and preclude a practice in which few, if any, judges had engaged--exclusively relying on the content of statements to determine their admissibility under the evidence rules.(172)}
 
 
 

^{The Commissions "go slow" management philosophy reflected in limited revisions prompted only by compelling needs, seems to be selectively followed. It was not necessary to move two identical hearsay exceptions in Rules 803(24) and 804(b)(5) to a new rule number rather than simply deleting one of the existing exceptions. There was no "real-life problem" resolved by this number change. For very different reasons the revisions to Rule 407 resolved no "problem" since virtually all courts had agreed to a solution through misinterpretation and judicial legislation. Rule 407 was clearly broken, but it didn't "need" to be fixed. This codification of solutions upon which the courts have already agreed is troublesome, not because it revises rules to reflect logic, good practice and sound social policy, but because (1) the Committee is using the "real life problems" excuse for its inaction on equally pressing proposals, and (2) by waiting to codifying generally agreed-upon solutions to inadequate rules, the Committee is waiting for consensus to be reflected in judicial manipulation and distortion of existing rules.}
 

^{Indeed, the Committee's go-slow approach was again embodied in its "editorial comments" to the original Advisory Committee Notes to the Rules of Evidence published at the end of 1998.(173)}

^{The Committee recognized that there were problems with the substance of the original Advisory Committee Notes due to legislative changes and inaccuracies in the Notes as originally promulgated. Nonetheless, the Committee acknowledged that it could not simply amend or update the original Notes unless such an effort was done in conjunction with a complete recodification of the rules.(174)}

^{The Committee asserted that there was no interest in a complete recodification of the Evidence Code. The Committee reasoned that such an effort would create more problems than it would solve by "upsetting settled expectations" and creating inadvertent changes.(175) Therefore, the Committee chose to make only "editorial comments" to particular Notes. This effort was, thus, ministerial at best. By only correcting "typos", correcting cross-references, and describing legislative history, the Committee left the fundamental inconsistencies in the Evidence Code untouched.}
 

^{The Advisory Committee's efforts have been much like watching the engineers of the poorly designed Jaguar re-engineer on top of poor engineering, rather than simply starting over and producing a better automobile. The product was a cumbersome instrument that was ten times harder to work on than comparable vehicles of competitors. A mechanic actually had to pull the engine out of the car in order to change the clutch! For too long the company was too stubborn and too stingy to do what obviously had to be done and eventually was done -- start afresh. Thus, much like the former makers of Jaguar, the Advisory Committee has repeatedly attempted to tinker with rules and solutions without getting to the heart of the problems in the Evidence Code.}
 

^{Discouraged by the Judicial Conference from independently pursuing its proposals with the Advisory Committee, regardless of what judicial surveys and independent commentary may have disclosed, the Evidence Project's options under the Rules Enabling Act were limited to two: (1) pursuing independent proposals only as an alternative to reform initiatives of the Advisory Committee; and (2) taking the issue of reform to Congress either as reform legislation or in an effort to block the changes approved in the Advisory Committee process. Because the Evidence Project strongly believes the Advisory Committee process can be more efficient, responsive and effective than the legislative process, all efforts initially were focused on the first option. This seemed particularly opportune in light of the fact that the Committee had finally moved on the issues of expert witnesses in Article VII--issues that the Evidence Project considered the most pressing. Unfortunately, as previously explained, the Advisory Committee's gestures proved to be more ceremonial than substantive. Keeping the faith with precedent, tradition and predictability, the Committee again turned its back on logic and consistency. This quickly because apparent in the public hearing on the Committee's proposals.}
 

^{When the Evidence Project orally presented its comments and alternatives to the Committee's proposed revisions to Rules 702 and 703, objections and questions were raised that were as insubstantial as the proposals the Committee was putting forward. These were concerns about the Project's proposal that were equally applicable to the proposals of the Committee.(176)}

^{The questions also did not seem to take into account the problems of logic and consistency of Rule 703.(177)}

^{Challenges to the supporting judicial survey and assumptions upon which proposals were made seemed to minimize or ignore the needs and the problems that the existing rules have created.(178)}

^{Comments about proposals did not seem to consider the common law or current practice under the Evidence Code.(179)}
 
 
 

^{It is unrealistic to conclude that members of the Advisory Committee lack the knowledge and understanding of either the common law or the Evidence Code. The members represent some of the most accomplished judges, practitioners and scholars in the country. Why, then, are such fundamental issues raised by Rules like 702 and 703 ignored? The answer seems to lie in the blindness created by tradition. It is definitely true that there are none so blind as those who will not see.}
 
 
 

^{IV. THE ADVISORY COMMITTEE STRUCTURE: SHUTTERED AND INSULAR}
 

^{Why have so many problems apparently been ignored by the Committee? Is the neglect more apparent then real? Perhaps these problems have been considered by the Committee and no actions were taken for reasons not apparent to the outside observer. Under current Committee practices, few standing outside the Committee's shuttered window are informed about subjects under consideration. Fewer still are informed about specific proposals that are being evaluated. Virtually no one is informed why problems or solutions were not considered worthy of Committee action or approval.(180)}

^{Of course the bottom line is that the Evidence Code is still riddled with uncorrected problems, regardless of the reasons for the Committee's failure to act.}
 

^{In a recent survey of the reaction of federal trial judges to the Evidence Project's proposed revisions to the expert witness rules in Article VII, the majority of responding judges expressed the belief that Article VII is in need of legislative attention.(181)}

^{With widely differing views on each proposal, most judges concluded that Rules 702 through 705 would be improved with some of the Project's proposed revisions. Similar views are undoubtedly held by members of the judiciary with regard to many of the other problems that have been identified. Those surveys have not been conducted.}
 

^{While the Committee professes to seek broad input from the bench and bar, it does so only after a majority of the Committee members have identified a problem and have tentatively been convinced that a particular solution adequately addresses it. Perhaps the apparent need to dissuade Committee members from doing what they have already decided should be done is a reason why the Committee receives relatively few responses to its proposed revisions.(182)}

^{Of the seven rules for which revisions were proposed this past year, all seven were adopted by the Advisory Committee without a single revision after a lengthy period of public comment and hearings. Busy people might naturally conclude, "What's the use?" Of course, other contributing factors to the bar membership's apparent disinterest in this procedure are the relatively narrow issues (more often than not, matters of primary interest in criminal cases) and inconsequential matters (changing rule numbers, or making the language of the rules gender neutral) that have captured the attention of both Congress and the Committee.  To broaden the level of participation the Committee needs to broadening its inquiries--actively seeking to identify problems and seriously engaging in an exchange with those who propose solutions. A major step in this direction would be for the Committee periodically to solicit proposals on particular topics and keep participants informed of the ideas being considered, actions that are being taken, and the reasons ideas and proposals were not acceptable. From this the proponent will at least know that her proposal has been seriously considered. This courtesy to participants in the revision process can easily be accomplished through the interactive webpage that the Committee has only recently established.(183)}
 
 
 
 
 

^{CONCLUSION: IT IS TIME FOR OPEN, INTELLECTUALLY HONEST AND PRODUCTIVE ACTION}
 

^{The Evidence Code can be properly maintained only if the Advisory Committee is willing to take a broader view of its management role and demonstrate greater receptivity to outside ideas. If the Committee continues to act as though wisdom resides exclusively within its ranks, and march to the "minimal changes" drum roll of the Chief Justice, a new committee should be established, perhaps through the House and Senate Judiciary Committees (like the original Advisory Committee), that would be outside the control of the Chief Justice and Federal Judicial Conference and free to engage in a meaningful overview of the Evidence Code.}
 

^{The failure of the Advisory Committee process has had two additional undesirable consequences. The first is the Congressional action that it has prompted, independent of the Advisory Committee rule-making process. Unnecessarily, and arguably inappropriately, new character evidence provisions in Rules 413 through 415 were enacted over the objections of the Advisory Committee. Another example was the revision to the ultimate issue rule, Rule 704, enacted by Congress after the attempted assassination of President Reagan in 1980. As explained previously, this revision served virtually no useful purpose.}
 

^{Most recently, Congress, in the IRS Restructuring and Reform Act of 1998 created a new privilege, a tax practitioner privilege.(184)}

^{The Advisory Committee has not proposed a single privilege rule since Congress deleted all specific privileges when the Evidence Code was enacted in 1973. Therefore, since these proposals technically are not revising the Evidence Code, the Advisory Committee may have no formal input in the deliberation process. While the Advisory Committee is not responsible for these Congressional actions, Congress's unwillingness to employ the procedures it has so carefully set into place must be interpreted as a negative comment on its satisfaction with the process itself.}
 

^{The second undesirable consequence of the Advisory Committee's inactivity has been the loss of uniformity among the state and federal evidence codes. This is particularly reflected in the draft revisions to the Uniform Rules of Evidence that the Evidence Drafting Committee of the Uniform Laws Conference has promulgated. Unaddressed issues in the Federal Rules of Evidence have produced different proposals by the National Conference of Commissioners on Uniform State Laws(185)}

^{and different rules in a number of states.(186)}
 
 
 

^{The Rules Enabling Act established a means through which intelligent, coordinated, and meaningful change in the Federal Rules of Evidence can efficiently be accomplished. The process it established for amending practice rules was an appropriate alternative to the cumbersome legislative process. The credibility of this process, however, is wedded to the Federal Judicial Conference and its Advisory Committee having a more realistic understanding of both its long-term and short-term responsibilities under a codified system of rules, and pursuing those responsibilities with an open mind and accessible agenda. Not only is the participation of many members of the bench and bar held in the balance, the future of the Evidence Rules as a model for state practice is at stake.}

^{1.  Mr. Rice is a professor of law at the American University Washington College of Law where he has taught evidence for twenty-five years and is Director of the Evidence Project.}

^{2.  Mr. Delker is an Assistant Attorney General with the New Hampshire Attorney General's Office Criminal Bureau's Appellate Section.}

^{3.  Fed. R. Ev. 102.}

^{4.  Act of June 19, 1934, Pub. L. No. 415, 73d Cong., 2d Sess., 48 Stat. 1064 (codified as amended at 28 U.S.C. '' 331, 2071-77 (19__)) [hereinafter "Rules Enabling Act"]. For a comprehensive legislative history of the Rules Enabling Act, see Stephen B. Burbank, the Rules Enabling Act of 1934, 130 U. Pa. L. Rev. 1015 (1982).}

^{5.  Rules Enabling Act, supra note 4, 48 Stat. 1064, 1064.}

^{6.  Act of July 11, 1958, Pub. L. No. 85-513, 72 Stat. 356 (codified at 28 U.S.C. ' 33 (199_)).}

^{The Conference shall also carry on a continuous study of the operation and effect of the general rules of practice and procedure now or hereafter in use as prescribed by the Supreme Court for the other courts of the United States pursuant to law. Such changes in and additions to those rules as the Conference may deem desirable to promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay shall be recommended by the Conference from time to time to the Supreme Court for its consideration and adoption, modification or rejection, in accordance with law.}

^{28 U.S.C. ' 331.}

^{7.  Peter G. McCabe, Renewal of the Federal Rulemaking Process, 44 Am. U. L. Rev. 1655, 1664 & n.65 (1995). The rule-making process described herein is only the general rules of practice and procedure, e.g., the Federal Rules of Civil Procedure, the Federal Rules of Evidence, the Federal Rules of Criminal Procedure, etc. Each court is also empowered to promulgate local rules of practice and procedure not inconsistent with the general rules. 28 U.S.C. ' 2071(a). This article does not address the local rule-making process.}

^{8.  See Judicial Conference of the United States, Committee on Rules of Practice and Procedure, Procedures for the Conduct of Business by the Judicial Conference Committees on Rules of Practice and Procedure Pt. I(1) (Aug. 1998), reprinted in 181 F.R.D. 18, 141-48 (1998) [hereinafter "Procedures for Committees on Rules of Practice and Procedure"]. These procedures were adopted by the Judicial Conference pursuant to the Congressional mandate. See 28 U.S.C. ' 2073(a)(1); see also Judicial Conference of the United States, Subcommittee on Long Range Planning, A Self-Study of Federal Judicial Rulemaking, 168 F.R.D. 679, 687 (1996) [hereinafter "Self-Study"]. A summary of the rule-making process is found in a pamphlet distributed by the Administrative Office of the U.S. Courts, The Federal rules of Practice and Procedure, A Summary for Bench and Bar (Oct. 1997) [hereinafter "A Summary for Bench and Bar"].}

^{9.  Procedures for Committees on Rules of Practice and Procedure, supra note 8, Pt. I(1) (quotation omitted); A Summary for Bench and Bar, supra note 8; see also 28 U.S.C. ' 2073(a)(2) (authorizing the Judicial Conference to appoint committees to assist in the rule-making process).}

^{10.  28 U.S.C. ' 2073(a)(2).}

^{11.  Self-Study, supra note 8, at 688.}

^{12.  See id.; see alsoProcedures for Committees on Rules of Practice and Procedure, supra note 8, Pt. I(3)(b).}

^{13.  Id. ' 2073(b); see alsoProcedures for Committees on Rules of Practice and Procedure, supra note 8, Pt. II(7); A Summary for Bench and Bar, supra note 8.}

^{14.  McCabe, supra note 7, at 1672.}

^{15.  Procedures for Committees on Rules of Practice and Procedure, supra note 8, Pt. I(2).}

^{16.  Self-Study, supra note 8, at 689.}

^{17.  Meetings must be open to the public unless the committee "in open session and with a majority present, determines that it is in the public interest that all or part of the remainder of the meeting on that day shall be closed to the public, and states the reason for so closing the meeting." 28 U.S.C. ' 2073(c)(1). Until 1988, most meetings of the advisory committees and the Standing Committee were closed to the public. See McCabe, supra note 7, at 1670-71. Congress enacted significant changes to the Rules Enabling Act in 1988, in an effort to open meetings and records of the judicial rule-making process to the public. Pub. L. No. 100-702, 102 Stat. 4649 (Nov. 19, 1988). See David D. Siegel, Commentary on 1988 Revision, The Method of Prescribing the General Rules, reprinted in 28 U.S.C.A. ' 2073 (discussing Congressional revisions to rule-making process).}

^{18.  Self-Study, supra note 8, at 689.}

^{19.  Id.}

^{20.  28 U.S.C. ' 2073(c)(1).}

^{21.  Procedures for Committees on Rules of Practice and Procedure, supra note 8, Pt. I(3)(b).}

^{22.  Id. Pt. I(3)(c).}

^{23.  Id. Pt. II (8)(c).}

^{24.  Id.}

^{25.  Id. The proposal is sent to more than 10,000 persons and organizations and is also published in the FederalRegister. SeeSelf-Study, supra note 8, at 689-90.}

^{26.  Procedures for Committees on Rules of Practice and Procedure, supra note 8, Pt. I(4)(b), (c).}

^{27.  Id. Pt. I(5)(a).}

^{28.  Id.}

^{29.  Id. Pt. I(5)(b).}

^{30.  Id. Pt. II(8)(d).}

^{31.  McCabe, supra note 7, at 1673.}

^{32.  Id.}

^{33.  28 U.S.C. ' 2074(a).}

^{34.  Id.}

^{35.  Id.}

^{36.  McCabe, supra note 7, at 1656 & n.2.}

^{37.  See Judicial Conference, Special Comm. on Evidence, Preliminary Study of the Advisability and Feasibility of Developing Uniform Rules of Evidence for the Federal Courts, 30 F.R.D. 73 (Thomas F. Green, Rptr., 1962)) [hereinafter "Preliminary Study"].}

^{38.  See id.}

^{39.  See id. at 82.}

^{40.  See id.}

^{41.  The report of the Special Committee on Evidence conducted a lengthy analysis to determine whether rules of evidence were substantive or procedural. See id. at 100-08. If rules of evidence were substantive, the Rules Enabling Act would prohibit the adoption of such rules because the authority of the Court to promulgate rules was limited to matters of procedure. Rules Enabling Act, supra note 4, 48 Stat. at 1064. Moreover, the U.S. Supreme Court decision in Erie Railroad v. Tompkins, 304 U.S. 64 (1938), required that federal courts apply state law on substantive issues in diversity matters. The Special Committee on Evidence concluded that rules of evidence were principally procedural and therefore the Court had authority to promulgate a uniform set of rules for federal courts. Preliminary Study, supra note 37, at 108.}

^{42.  Id. at 114.}

^{43.  21 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure, Evidence ' 5006, at 98 (1977).}

^{44.  Id. at 98 n.27 (listing the members of the original advisory committee).}

^{45.  Id. at 98-99.}

^{46.  Id. at 99 (quoting Hearings on Proposed Rules of Evidence, Before Special Subcommittee on the Reform of Federal Criminal Laws of the House Committee on the Judiciary, 93d Cong., 1st Sess. Ser. No. 2, at 79 (1973)).}

^{47.  Id. at 100.}

^{48.  Id.}

^{49.  Id.}

^{50.  Id. at 101.}

^{51.  Id.}

^{52.  Id. at 102-03.}

^{53.  Id. at 103.}

^{54.  Id.}

^{55.  Id. at 103-04.}

^{56.  Id. at 105.}

^{57.  Pub. L. No. 93-595, 93d Cong., 2d Sess., 88 Stat. 1296 (1975) (effective date July 1, 1975); see 21 Wright & Graham, supra note 43, at 104-08 (detailing the congressional debate over the rules). A detailed legislative history of the proposals considered and the rules not approved by Congress is reprinted in 11 James W. Moore, Moore's Federal Practice App. I-5 to -137 (2d ed. 1995).}

^{58.  Self-Study, supra note 8, at 686.}

^{59.  See Edward R. Becker & Aviva Orenstein, The Federal Rules of Evidence After Sixteen Years -- The Effect of "Plain Meaning" Jurisprudence, The Need For An Advisory Committee on the Rules of Evidence, and Suggestions For Selective Revision of the Rules, 142 F.R.D. 519, 522 (1992) (detailing efforts to establish an Evidence Advisory Committee).}

^{60.  Id. at 522-23.}

^{61.  Id. at 522, 524.}

^{62.  The current Evidence Advisory Committee is composed of twelve members, including five judges, three professors, two private attorneys, one public defendant, and one prosecutor. See Administration Office of the United States Courts, Proposed Amendments to the Federal Rules of Civil Procedure and Evidence, 181 F.R.D. 18, 151 (1998) (listing members of the Evidence Advisory Committee).}

^{63.  Becker & Orenstein, supra note 59, at 524.}

^{64.  Id.}

^{65.  Id. at 524-25.}

^{66.  Judicial Conference of the United States, Proposed Amendments to Federal Rules, 156 F.R.D. 339, 484 (1994) [hereinafter "Special Request"].}

^{67.  Id.}

^{68.  Id.}

^{69.  As Judge Becker and Professor Orenstein recognized, no less than three efforts had been undertaken to revise significant portions of the Evidence Code. Becker & Orenstein, supra note 59, at 521-24. The American Bar Association Committee on Rules of Criminal Procedure and Evidence, for example, recognized that despite the "genius, skill, and foresight of the drafters of the existing Federal Rules of Evidence," there are important changes that need to be made in a number of the Rules. American Bar Association, Committee on Rules of Criminal Procedure and Evidence, Federal Rules of Evidence: A Fresh Review and Evaluation, 120 F.R.D. 299, 304 (1987). In addition to the three efforts mentioned by Judge Becker and Professor Orenstein, the Evidence Project of the American University's Washington College of Law has published the most recent proposal for a comprehensive overhaul of the Rules of Evidence. See The Evidence Project, Proposed Revisions to the Federal Rules of Evidence, 171 F.R.D. 330 (1997).}

^{70.  Special Request, supra note 66, at 484.}

^{71.  Id.}

^{72.  Rule 412, Past Behavior of Victims of Sexual Crimes, was amended three times. Originally adopted in 1978, it was amended once in 1988 and twice in 1994.}

^{73.  In a recent column in the National Law Journal, the Reporter for the Evidence Advisory Committee, Professor Daniel J. Capra explained:}

^{[T]he Advisory Committee is very sensitive to the costs of amending the rules. Amendments can upset settled practices and expectations; they may have unintended consequences; they may create more problems than they solve. Therefore, the Advisory Committee's working premise is to leave unchanged those rules that, though perhaps inelegantly drafted or problematic at the margins, are generally working well. Speaking broadly, the Advisory Committee has sought to amend a rule only in the following circumstances: 1) if the rules has been subject to severely conflicting interpretations in the courts; 2) if the rule creates a substantial inconsistency with another rule or statute; 3) if Congress is considering its own amendment to a rule and the amendment would create more problems than it would solve; or 4) if the rule creates grave inefficiency or unfairness in practice.}

^{Daniel J. Capra, EVIDENCE Amendments, National L.J., Oct. 5, 1998, at B11.}

^{74.  See Proposed Amendments, supra notes 21-35 and accompanying text. The Committee has recommended revisions to the following Rules: Rule 103(a), finality of in liming ruling; Rule 404(a), expanding admissibility of character evidence; Rule 701, precluding lay opinions that require special expertise without compliance with Rule 702; Rule 702, codifying the standard for reviewing the admissibility of expert opinions and making it applicable to all types of expert witnesses; Rule 703, limiting disclosure to the jury of inadmissible evidence relied upon by expert witnesses; Rule 803(6), establishing a more efficient method for authenticating business records; Rule 902, adding two new rules addressing the self-authentication of certified domestic and foreign records of regularly conducted activities.}

^{75.  Rule 405. Methods of Proving Character}

^{(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.}
 

^{Rule 608. Evidence of Character and Conduct of Witness}

^{(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.}

^{76.  See Fed.R.Ev. 405 Advisory Comm. Note.}

^{77.  Rule 405. Methods of Proving Character}

^{. . . .}

^{(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.}
 

^{Rule 608. Evidence of Character and Conduct of Witness}

^{. . . .}

^{(b) Specific instance of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.}

^{78.  Rule 801. Definitions}

^{The following definitions apply under this article:}

^{(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.}

^{79.  Admittedly evidence of this character is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal conduct. The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of reliance will bear heavily upon the weight to be given the evidence.}
 

^{Fed. R. Ev. 801(a), Advisory Committee's Note.}

^{80.  If sincerity guaranteed reliability, half of us wouldn't be losing bets each day with our colleagues and friend about past event that we remember differently. All that the "assertive-nonassertive" distinction guarantees is that we have a sincerely erroneous statement.}

^{81.  Rule 801. Definitions}

^{The following definitions apply under this article:}

^{. . . .}

^{(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.}

^{82.  Rule 801. Definitions}

^{The following definitions apply under this article:}

^{. . . .}

^{(d) Statements which are not hearsay. A statement is not hearsay if --}

^{(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or}

^{(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.}

^{83.  Fed. R. Ev. 801(d)(2)(A)-(E).}

^{84.  See Fed. R. Ev. 801, Advisory Comm. Note.}

^{85.  Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial}

^{The following are not excluded by the hearsay rule, even though the declarant is available as a witness:}

^{. . . .}

^{(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.}

^{86.  Rule 804. Hearsay Exceptions; Declarant Unavailable}

^{. . . .}

^{(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness.}

^{. . . .}

^{(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.}

^{87.  Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial}

^{The following are not excluded by the hearsay rule, even though the declarant is available as a witness:}

^{. . . .}

^{(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.}

^{88.  In Rule 803 the availability of the declarant is supposed to be immaterial. Since the declarant must be available to authenticate, but unavailable through present recollection to give substantive testimony, the exception doesn't cleanly fit in either Rules 803 or 804.}

^{89.  While the Advisory Committee discussed these restrictions in terms of "fairness," rather than the explicit guarantee of confrontation, the instances where confrontation type rights were codified were instances where the confrontation clause had previously been applied. Therefore, "fairness" was defined by the prevailing requirements of the Confrontation Clause. For example, in Rule 804(b)(1), former testimony, "the party against whom the testimony is now offered . . . [must have] had an opportunity and similar motive to develop the testimony . . . ." By contrast, in civil actions, either the party against whom the testimony is now offered, or "a predecessor in interest" must have had an opportunity and similar motive to develop the testimony.}

^{90.  Prior to the Supreme Court's decision in Ohio v. Roberts, 448 U.S. 56 (1980), the right of confrontation was defined by the Supreme Court's opinions in Dutton v. Evans, 400 U.S. 74 (1970), and California v. Green, 399 U.S. 149 (1970). With an amorphous standard the right of confrontation was defined on a case-by-case basis considering such factors as the gravity of the evidence, the possibility of jury misuse, the inherent reliability of the statement as reflected in perception and memory problems that could be exposed through cross-examination, and the availability of other evidence. In Roberts the standard was simplified. The court announced a two-prong test. First, the government had to demonstrate that the declarant was unavailable after good faith efforts had been made to locate him. Second, the hearsay statements being offered in lieu of the declarant had to have indicia of reliability. Subsequently, in cases like United States v. Inadi, 475 U.S. 387 (1986), and Bourjaily v. United States, 483 U.S. 171 (1987), the Court backed away from a general two-prong requirement, appearing to dispense with the demonstration of unavailability unless the hearsay exception under the statement was being offered required such a demonstration.}

^{91.  See Pointer v. Texas, 380 U.S. 400 (1965) (confrontation clause precluded use of testimony from preliminary hearing where the defendant was not represented by counsel); Kirby v. Illinois, 174 U.S. 47 (1899) (a judgement from a conviction of a third party could not be used to prove that property, which the defendant was charged with possessing, had been stolen). See generally 4 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 804(b)(1)(5), at 97098 (1990); McCormick on Evidence § 303 p. 312 (9th ed. 1992).}

^{92.  M. Berger, The Deconstitutionalization of the Confrontation Clause: The Fallacy that Hearsay Rules and the Confrontation Clause Protect Similar Values, 76 Minn. L. Rev. 557 (1992) (arguing that the role of the Confrontation Clause is to restrain "the capricious use of governmental power" --curbing the government's secret generation of evidence that was exemplified in the Sir Walter Raleigh trial) and Professor Jonakait's response to Professor Berger, The Right to Confrontation: Not a Mere Restraint on Government, 76 Minn. L. Rev. 615 (1992).}

^{93.  Currently, this appears to have happened only with the right of confrontation.}

^{94.  Current Rule 801. Definitions}

^{The following definitions apply under this article:}

^{. . . .}

^{(d) Statements which are not hearsay. A statement is not hearsay if --}

^{. . . .}

^{(2) Admission by party-opponent. The statement is offered against a party and is . . . . (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).}

^{95.  475 U.S. 387 (1986).}

^{96.  448 U.S. 56 (1980). Roberts established a two-prong test for the admissibility of hearsay against criminal defendants. First, the prosecution must either produce the declarant, or demonstrate that he is unavailable. Second, the prosecution must demonstrate that the statement possesses particularized guarantees of trustworthiness. The Court went on to conclude that the particularized guarantees of trustworthiness was automatically established by the fact that the statement fell within a firmly rooted hearsay exception.}

^{97.  483 U.S. 171 (1987).}

^{98.  315 U.S. 60, 62 (1942).}

^{99.  Rule 612. Writing Used to Refresh Memory}

^{Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either --}

^{(1) while testifying, or}

^{(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,}
 

^{an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order the delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.}

^{100.  Nothing in Rule 612 requires that the party demonstrate that the hearsay dangers of memory, perception, ambiguity in narration or sincerity have been sufficiently minimized to allow admission as an exception to the hearsay rule. Rule 612 contains no restrictions on what items can be used to refresh memory. Even illegally obtained evidence can be used to refresh memory. Un}