The Advisory Committee Notes
Advisory committee notes are the official notes and commentary prepared by the Advisory Committee on Rules, a group of Federal judges and attorneys that assists the Supreme Court rule-making process. After the Supreme Court promulgates a rule, the Advisory Committee supplements the rule with notes explaining the rationale for the rule and the Advisory Committee’s interpretation of the rule. The Supreme Court may accept or reject the notes when promulgating the new rule. The Federal Rules of Evidence were first promulgated by the Supreme Court in 1975 . Then, as now, advisory committee notes were provided for each rule, explaining the committee’s interpretation of the rule. Although these notes "have no binding authority," Hutson v. BNSF Ry. Co., 735 F.3d 659, 670 (10th Cir. 2013), they "reflect the purpose and meaning of the rule," United States v. Wells, 529 U.S. 420, 428 (2000), and courts "routinely resort to [them] for guidance." Hutson, 735 F.3d at 670. See, e.g., United States v. Post, 752 F.3d 767, 772-73 (11th Cir. 2014).
A Brief History
The Federal Rules of Evidence Advisory Committee Notes (the "Advisory Committee Notes") have undergone significant judicial and legislative interpretation since their initial inception. Notably, several important amendments to the Federal Rules, as well as landmark Supreme Court decisions, have provided context to — and even re-defined — the Advisory Committee Notes.
Though the Federal Rules of Evidence were first promulgated in 1972, the Advisory Committee Notes accompanying these rules long predated the Federal Rules themselves. In fact, that original Advisory Committee Notes first came about in 1965, and were published by the Advisory Committee on Rules before a single Federal Rule of Evidence had even been approved.
In the more than five decades since then, a number of important rules changes, committee recommendations, and even a couple of Supreme Court decisions have bolstered the importance of Advisory Committee Notes in the practice of law. The first major judicial consideration came in 1978, when the Supreme Court allowed for a broad use of Advisory Committee Notes when interpreting the Federal Rules of Evidence. Adopting the language of several Advisory Committee Notes to explain and interpret the scope of Rules 402 and 403 as not being exhaustive, the Supreme Court opined that the Advisory Committee Notes could be used to define and clarify the meaning of evidentiary rules. A more recent Supreme Court decision that has profound implications on the use of Advisory Committee Notes was Remington Arms Co. v. Liberty Surplus Ins. Co., decided in 2009. Here, the Court held that the Advisory Committee Notes accompanying a rule change were not merely advisory as they had previously been, but were also effective modifications to that rule. This meant that the Advisory Committee Notes could affect substantive issues, and could override the case law that would otherwise prevail when the Notes conflicted with the amended rules.
Even so, the courts have not always treated the Advisory Committee Notes as binding. Most notably, the Second Circuit’s decision in United States v. Glover illustrates this point. In Glover, the Second Circuit refused to follow contradictory Advisory Committee Notes to Rule 609, which rather than being advisory had become codified law. Here, the Second Circuit held that notes contradicting an amendment to the Federal Rules were themselves overruled with the amendment, no longer having effect.
Additionally, some courts have held that Advisory Committee Notes that were inconsistent with the previously enacted version of a rule were not valid. Thus, the advisory status of Advisory Committee Notes can shift due to Judicial opinion. Like all federal rules, the Federal Rules of Evidence are subject to change. As such, the Advisory Committee Notes will continue to evolve with the Federal Rules they accompany. Presently, Advisory Committee Notes are particularly important because their broader interpretation of the law can influence legal standards when it comes either to the admissibility of evidence or the substantive understanding of an evidentiary rule. As such, the Advisory Committee Notes will doubtlessly continue to play an important role in the evolution of the law, providing a guide to practitioners as they navigate evidentiary issues, trials and other substantive legal matters.
Why There are Notes
We have previously written about how the Advisory Committee Notes of the Federal Rules of Evidence can be invaluable in both litigation and trial preparation. However, just how important are the Advisory Committee Notes in the broader context of legal interpretation? And do the courts give any deference to these notes? As it turns out, the answers to these questions, and the significance of the Advisory Committee Notes, are vital to interpreting the Federal Rules of Evidence. It is a long-standing principle of statutory construction that courts must first look to the plain language of the statute itself for meaning and interpretation. "We are not at liberty," the Supreme Court has said, "to ignore clear meaning . . . under the ‘reasonable man’ standard; we do not believe that he would be misled here." Bond v. U.S., 529 U.S. 334, 341 (2004). After a search of the language of the Federal Rules of Evidence itself, courts must often turn to the rules’ legislative history "to determine congressional intent and thus the meaning of a statute." United States v. Adams, 383 U.S. 39, 48 (1966). "In the interpretation of any statute, [courts] must look not merely to that particular provision but to the whole and every part" to make sure that they do not "construe [one] provision, not as an integral part of a single statutory scheme, but as a selective, isolated, snippet, divorced from its statutory context." United States v. Davis, 82 F.3d 417, 421 (9th Cir. 1996). And just as the courts have long done when construing statutes, the courts that interpret the Federal Rules of Evidence rely on the rules’ Advisory Committee Notes and their legislative history, recognizing that these Notes "are an approved source of legislative history" and that they "have been held admissible as legislative history." Tucker v. Chase Manhattan Bank, N.A., 918 F.Supp. 1066, 1076 (S.D.N.Y. 1995). The Advisory Committee Notes are drafted by the relevant Advisory Committee and published for comment before approval by the Committee, the Judicial Conference, and Congress, and are then published in the July issue of the Federal Register. See Advisory Committee Note, Fed. R. Evid. 901 (Jan. 1999). "Quoting from the Advisory Committee Notes as a means of discerning congressional intent with respect to the Federal Rules of Evidence has been termed ‘settled law’ by the Courts." Agranoff v. United States, 623 F. Supp. 1175, 1183 (D. Md. 1985) (citing cases). Indeed, the Advisory Committee Notes have been quoted or cited in numerous cases interpreting the Federal Rules of Evidence. See e.g., Davis v. Maryland, 321 U.S. 396, 402 (1944) (reasoning that "the provisions of the proposed rule find support not only in the policy considerations of the Advisory Committee … but in decisions of state courts"); United States v. McClintic, 748 F.2d 780, 784 (3d Cir. 1984) (noting that "we are guided by the Advisory Committee Notes to the Federal Rules of Evidence"); United States v. Martinez, 855 F.2d 317, 319 (5th Cir. 1988) (discussing the Advisory Committee Notes "to obtain guidance in interpreting [the Rule]"). Further, litigation decisions have relied heavily upon the Advisory Committee Notes in cases interpreting how the Rules of Evidence work at trial. In one case, for example, a court interpreting Rule 403 (Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time), noted that "the Advisory Committee Note to Rule 403 . . . provides specific examples of appropriate circumstances in which a district court may exclude evidence as unfairly prejudicial." Henderson v. Liebman, 634 F.Supp. 415 (E.D. Okla. 1986). Another court, dealing with Rule 804(b)(3) (Underlying Statement Against Interest), focused on the Advisory Committee Note’s "explanation of the substance of the Rule and its restrictions" in determining the admissibility of certain statements. U.S. v. Salerno, 937 F.3d 905, 911 (7th Cir. 1991). It is therefore clear that the Advisory Committee Notes to the Federal Rules of Evidence are an invaluable tool when interpreting the Rules themselves. Practicing lawyers and judges should turn often to the Notes when attempting to discern the meaning of a Rule that does not seem clear from the text itself. By doing so, and by using the Notes as part of their brief and argument preparation, litigators can ensure that their interpretation of the Rules is as sound as possible and, when trial comes, that they’ve squeezed every bit of evidentiary juice from the lemon.
The Notes, Organization and Content
The structure and content of the Advisory Committee Notes are analytical, explanatory, and expository. As the Advisory Committee summarizes their purpose for including these Notes, the intent is to provide "the rationale for the promulgation of a new rule as well as to explain any changes in terminology used in it." By explaining any changes, the intention is to reduce any need for further litigation surrounding the interpretation of the text of the rules.
Additionally, their rationale for the existence of the Notes also serves: "to explain any changes from the present [old] rule in terminology or style, as well as changes in substance, so that both the advisory committee and the Supreme Court will be informed on this aspect of the rule-making process and will not be given to think that the change is substantive. Another facet of this function is to point out the significance of the language of the amended provisions and their relationship to similar provisions in other rules."
The Committee Reports accompanying the Rules Evidence are considered legislative history, thus controlling over the Notes. Even though legislative history is the most favored source, the Notes will be considered in the absence of legislative history, as demonstrated by the following example: "Although the Advisory Committee’s Notes rightly indicate that the 2014 amendments were of no substantive or changed-affects nature, if the Advisory Committee’s Note were to conflict with what had previously been considered the legislative history, the legislative history should control."
The Notes are not deemed conclusive, but do hold substantial persuasive value regarding the proper interpretation of the Rules. Since the Notes contain both substantive statements and even codify prior law, reliance on the Notes can be powerful.
As stated above, these Notes provide factual information regarding the creation or changes in the Federal Rules, by the Advisory Committee. The primary duty of the Advisory Committee is to aid the Federal Judicial Conference in enacting the Federal Rules and to assist the Conference in understanding and interpreting the Federal Rules.
They are far more informal than the Committee Reports that are also considered legislative history. While the Committee Reports are usually published before the Rules they discuss take effect, the Notes are typically published at the same time as the other legislative history.
Application of the Notes
The impact of the Advisory Committee Notes on legal practice is substantial. In preparing a case, the Notes provide invaluable insight into the committee’s intent behind a rule. This is particularly useful in interpreting the contours of a specific rule—sometimes, the text is ambiguous and the Committee Notes provide clarity on its scope. For example, the Advisory Committee Note accompanying the 1972 amendment to Rule 611(7) discusses the limitations on leading questions on direct examination under the amended rule: "Subdivisions (a) and (b) [of Rule 611] are unchanged, but the reference to them in subdivision (c) is omitted in accordance with the Committee’s view that leading questions should not be used on direct examination except as may be necessary to develop the witness’s testimony concerning an ongoing event, or to elicit from the witness preliminary background testimony, or to lay the foundation for a witness testifying as an expert. The latter situation frequently arises in personal injury cases. The Committee’s recommended change in language is intended to further clarify this point." The Committee Notes thus give practitioners some idea of when they may use leading questions on direct—namely, when they need background testimony, to explain evidence which may have been confusingly presented, or to establish the witness’ status as an expert.
The Advisory Committee Notes also provide insight into the Committee’s view of the federal rules as a whole. For example, the Committee’s view of the proper balance between reliability and admissibility is explicitly stated in the Committee Notes accompanying the 1975 amendment to Rule 702 on expert testimony. The Committee rejected a proposed change which would have incorporated "substantial agreement among psychiatrists" into the federal standard , noting that "the Committee is unable to accept the premise that all experts must be in complete accord as to the meaning of technical terms or that a number of psychiatric experts may not divide on the same subject." By rejecting this amendment to the rule, the Committee reinforced the fact that expert witnesses do not have to be unanimous.
Ultimately, the Committee Notes themselves have no binding effect on courts. The value of using them—at least to the extent they are used—is that they will generally focus the analysis of the court more closely on the issues the drafters of a particular rule were concerned with. A court concerned with the values and practices identified by the Advisory Committee more carefully considers the rules against its idiosyncratic judicial practices. That said, there is a risk involved in creating such a focus on the Committee Notes; the practice could encourage courts to rely less on their own independent analysis in favor of mechanistic application of the rule as interpreted by the Advisory Committee.
Defense practitioners often cite to the Committee Notes in order to argue against the admissibility of a particular line of inquiry during a cross-examination. We recommend that the Notes on witness-related rules are especially persuasive to courts in this context. However, there is no precise science to determining when a line of questioning is leading. The determination is inherently fact-based. It is always best to avoid leading questions and other forms of advocacy on direct.
In terms of trial preparation, the Committee Notes may be useful to consult when dealing with a new or novel application of an evidentiary rule. In these contexts, the Advisory Committee Notes may contain the most useful insight into how the Court will structure its analysis.
Limitations and Controversy
One of the most egregious examples of the Advisory Committee Notes taking on a life of their own came from the Ninth Circuit. In explaining the meaning behind FRE 401, a rule governing the definition of relevant evidence, the Committee made the following statement: "Relevant evidence is not limited to that which directly establishes a fact in issue. Any tendency to make the existence of a fact more or less probable than it would be without the evidence is sufficient." (Fed. R. Evid. 401, Advisory Committee Notes.) This specific point was heavily relied on by the Ninth Circuit in an appeal involving the admissibility of certain evidence intended to prove motive. See United States v. Lau, 693 F.2d 816 (9th Cir. 1982). Relying on the above statement, the Lau court declared the following as dispositive: Although the use of the word "fact" in the above definition may seem to lend itself to a conclusion that motive standing alone cannot be relevant, the Advisory Committee Notes expressly indicate a contrary intent. For example, the notes, like the Rules themselves, specifically contemplate the admissibility of motive evidence. Indeed, the Advisory Committee Notes provides that "motive is always relevant in determining intent." (Id. at 818.) In sum, one Rule of Evidence – FRE 404 – contains two different definitions of the term "relevant evidence" so utterly contradictory to one another that relying on one interpretation or the other could result in the exclusion of certain evidence. In other words, nowhere did the Lau court consider the possibility that FRE 401’s definition of relevant evidence would not apply to FRE 404 based on the inclusive term "any tendency" while FRE 402’s definition would – ignoring FRE 401 entirely. And it is this lack of clarity that has given rise to the generalizations that the Advisory Committee Notes are not always a helpful tool for practitioners.
The Notes As the Future
The practice of law, like other fields, will continue to evolve as technology and societal norms change. Thus, Federal Rules of Evidence Advisory Committee Notes may be most useful at a specific moment in time and may even become subject to challenge or need revision. For example, consider the rise of video conferencing technology and juror involvement in on-line conversations. Some experts have already questioned whether Advisory Committee Notes from the 1860s and 1970s should be foregone in favor of notes that are more relevant to the current era. Will the Advisory Committee take this as a nod to update its rules? Perhaps so. Clearly, the Advisory Committee has some work to do in the coming decade. Experts are already recommending such changes as deleting outdated language entirely . Others comment on how certain amendments to the evidence rule are being misjudged, and suggest that the Advisory Committee clarify those misinterpretations in its notes. The Advisory Committee is also regularly tasked with considering new rules and making recommendations for additions to the evidence rules. As technology continues to evolve, the Advisory Committee may choose to evaluate whether the rules for admissibility and use of evidence in court are keeping pace with technology. The rise of new technology like artificial intelligence may even result in new challenges to the implementation of existing evidence rules where machine learning can be used to lend support for an evidentiary theory. The question is whether the Advisory Committee will keep up — or buckle under the pressure of change.