Digitally signed

by Joseph Zernik
Human Rights Alert DN: cn=Joseph
Zernik, o, ou,
PO Box 526, La Verne, CA 91750 email=jz12345@
earthlink.net,
Fax: 323.488.9697; Email: jz12345@earthlink.net c=US
Blog: http://human-rights-alert.blogspot.com/ Date: 2010.10.14
Scribd: http://www.scribd.com/Human_Rights_Alert 15:16:28 +03'00'

10-10-14 Brief History of the Federal Rules of Evidence, and Proposed Federal Rules of
PACER & CM/ECF

The enabling tool and the proposed solution:

The pattern of conduct, which is routinely seen at the US District Court in Los Angeles, is not
unique at all. Similar instances can be found at US District Courts across the nation.
Regardless of the part of the US District Court involved, the method is uniform - enabled by
PACER & CM/ECF - pretense litigations, which are not overturned upon pretense appeals or
petitions, failure to publish Rules of Court pertaining to fundamental clerical procedures that are
inherent to the systems, and denial of public access to critical authentication and other clerical
records.
The proposed solution is in the enactment of Federal Rules of PACER & CM/ECF. It is
claimed that such Federal Rules would contribute to the safeguard of Human Rights in the United
States much more than most realize.
The precedent is with the publication by US courts of Federal Rules of Evidence, which the US
Congress rejected and replaced with its own enacted version. [1]
In the case of PACER & CM/ECF, the US courts simply never published any rules at all, in what
must be deemed serious violation of Due Process and Fair Hearings rights, and therefore
undermined Access to the Courts in what are in the US the National Tribunals for Protection of
Rights.
ATTACHED
[1] Federal Rules of Evidence – downloaded from Wikipedia on October 14, 2010
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Federal Rules of Evidence

From Wikipedia, the free encyclopedia

The Federal Rules of Evidence (FRE) is a code of evidence law governing the admission of facts by which parties in the United States federal court system may

prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments.

The Rules were the product of protracted academic, legislative, and judicial examination before being formally promulgated in 1975. U.S. states are free to adopt

or maintain evidence rules different from the Federal Rules, but a substantial majority have adopted codes in whole or part based on the FRE. Because they

govern the initial presentation of evidence in a trial, the Rules primarily serve to govern federal trial courts rather than appellate courts, as appellate courts, due to

their function and scope address very few questions touching upon the facts of a case. Appellate courts do, however, monitor the application of the rules to ensure

consistent application and coherent development of the federal common law of evidence. The Rules are also a focus of most Evidence courses in American law

schools.

Contents
1 History
2 Purpose
3 Structure of the Rules
4 References
5 Further reading
6 External links

1. History

The law of evidence governs the proof of facts and the inferences flowing from such facts during the trial of civil and criminal lawsuits. Before the twentieth century,

evidence law was largely the product of decisional law. During the twentieth century, projects such as the California Evidence Code and the Uniform Rules of

Evidence encouraged the codification of those common-law evidence rules. In 1965, Chief Justice Earl Warrenappointed an advisory committee of fifteen to draft

the new rules. The committee was composed of lawyers and legal scholars from across the country.

The Federal Rules of Evidence began as rules proposed pursuant to a statutory grant of authority, the Rules Enabling Act, but were eventually passed as statutory

laws.

The United States Supreme Court circulated drafts of the FRE in 1969, 1971 and 1972, but Congress then exercised its power under the Rules Enabling Act to

suspend implementation of the FRE until it could study them further. After a long delay blamed on the Watergate scandal, the FRE became federal law on January

2, 1975, when the President signed the Act to Establish Rules of Evidence for Certain Courts and Proceedings,Pub.L. 93-595, 88 Stat. 1926.

The law was enacted only after Congress made a series of modifications to the proposed rules. Much of the debate on the Rules stemmed from concerns that

came to lawmakers' attention due to the Watergate scandal, prarticularly questions of privilege.[1] Some of the most prominent congressional amendments when

Congress adopted the rules included:

Prior Inconsistent Statement - Rule 801(d)(1)(A): Congress amended the proposed rule so that the "rule now requires that the prior inconsistent statement be

given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. The rule as adopted covers statements before a grand jury."[2]
 Page 3/5 October 14, 2010

Privileges - Rule 501: Although the original proposal included thirteen rules providing for various privileges, Congress struck all of them. To guide privileges in the

federal courts, Congress adopted Rule 501. The rule specified that except as otherwise provided by Act of Congress or by other federal rules, privileges in the federal courts

would be "governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience."[3]

Impeachment by Conviction - Rule 609(a): The rule specified when a party could use evidence of a prior conviction to impeach a witness. Congress reformed

most of Rule 609(a), to specify when a court could exercise discretion to admit evidence of a conviction which was a felony, but that the court must admit the prior conviction if

the crime was one involving "dishonesty or false statement."[4]

The Advisory Committee Notes[5] still function as an important source of material courts use to interpret the Rules.

Even though the Federal Rules of Evidence are statutory, the Supreme Court is empowered to amend the Rules, subject to congressional disapproval. However,

amendments creating, abolishing, or modifying privileges require affirmative approval by Congress under 28 U.S.C. § 2074.

2. Purpose

In general, the purpose of rules of evidence is to regulate the evidence that the jury may use to reach a verdict. Historically, the rules of evidence reflected a

marked distrust of jurors. The Federal Rules of Evidence strive to eliminate this distrust, and encourage admitting evidence in close cases. Even so, there are

some rules that perpetuate the historical mistrust of jurors, expressly limiting the kind of evidence they may receive or the purpose for which they may consider it.

At the same time, the Rules center on a few basic ideas – relevance, unfair surprise, efficiency, reliability, and overall fairness of the adversary process. The Rules

grant trial judges broad discretion to admit evidence in the face of competing arguments from the parties. This ensures that the jury has a broad spectrum of

evidence before it, but not so much evidence that is repetitive, inflammatory, or unnecessarily confusing. The Rules define relevance broadly and relax the

common-law prohibitions on witnesses' competence to testify. Hearsay standards are similarly relaxed, as are the standards for authenticating written documents.

At the same time, the judge retains power to exclude evidence that has too great a danger for unfair prejudice to a party due to its inflammatory, repetitive, or

confusing nature or its propensity to waste the court's time.

3. Structure of the Rules

There are 67 individually numbered rules, divided among 11 articles:

1. General Provisions

2. Judicial Notice

3. Presumptions in Civil Actions and Proceedings

4. Relevancy and Its Limits

5. Privileges

6. Witnesses

7. Opinions and Expert Testimony

8. Hearsay

9. Authentication and Identification

10.Contents of Writings, Recordings, and Photographs

11.Miscellaneous Rules
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The Rules embody some very common concepts, and lawyers frequently refer to those concepts by the rule number. The most important concept – the balancing

of relevance against other competing interests – is embodied in Rule 403.[6]

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair
“ prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. ”
The basic rule regarding inferences the jury may draw from particular testimony is Rule 404.[7]

1. Character evidence generally.

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

1. Character of accused - In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of

character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the

prosecution.

2. Character of alleged victim - In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime

offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide

case to rebut evidence that the alleged victim was the first aggressor.

3. Character of witness - Evidence of the character of a witness, as provided in rules 607, 608, and 609.

2. Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the

accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the

general nature of any such evidence it intends to introduce at trial.

Other common-law concepts with previously amorphous limits have been more clearly delineated. This is especially true regarding hearsay evidence. Among

scholars and in historical judicial decisions, four related definitions of "hearsay" emerged, and the various exceptions and exemptions flowed from the particular

definition preferred by the scholar or court. The Federal Rules of Evidence settled on one of these four definitions and then fixed the various exceptions and

exemptions in relation to the preferred definition of hearsay.

On the other hand, the law of privileges remains a creature of federal common law under the Rules, rather than the subject of judicial interpretation of the text of

the rule. Just as the Uniform Rules of Evidence had, the advisory committee draft of the rules that the Supreme Court formally transmitted to Congress codified

nine evidentiary privileges – required reports, attorney-client, psychotherapist-patient, husband-wife, communications to clergymen, political vote, trade secrets,

official secrets, and identity of informer. When debate over the privileges included in the proposed Rules threatened to delay adoption of the Rules in their entirety,

Congress replaced the proposed codified privileges with what became Rule 501.

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules
“ prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or
political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the
courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect
to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person,
government, State, or political subdivision thereof shall be determined in accordance with State law. ”
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The scope of the privileges under the Rules thus is the subject of federal common law, except in those situations where state law supplies the rule to be applied.

Accordingly, theSupreme Court is ultimately responsible for determining which privileges exist. In the years since the adoption of the Rules, the Court has both

expressly adopted a privilege, in Jaffee v. Redmond, 518 U.S. 1 (1996), and expressly declined to adopt a privilege, in University of Pennsylvania v.

EEOC, 493 U.S. 182 (1990).

4. References
1. ^ Christopher B. Mueller, Laird C. Kirkpatrick. Evidence (4th ed., 2009). Aspen Treatise Series. ISBN: 9780735579675.
2. ^ House Report No. 93-1597 (Conference Committee Report)
3. ^ House Report No. 93-650 (House Committee on the Judiciary – 1974)
4. ^ House Report No. 93-1597 (Conference Committee Report – 1975)

5. ^ federalevidence.com
6. ^ http://federalevidence.com/rules-of-evidence#Rule403

7. ^ http://federalevidence.com/rules-of-evidence#Rule404

5. Further reading

Rothstein, Paul; Raeder, Myrna S.; Crump, David (2003). Evidence in a Nutshell (4th ed.). Thomson/West. ISBN 0314260986.

Rice, Paul R.; Delker, Neals-Erik W. (2000). "Federal Rules of Evidence Advisory Committee: A Short History of Too Little Consequence". Federal Rules Decisions 191:
678.

Scott, John Norman (2000). Evidence Illustrated: Cases to Illustrate How All the Rules Work. Holmes Beach, Fla.: LP Law. ISBN 1-55691-181-5.

6. External links

Online text of the Federal Rules of Evidence - Federalevidence.com

Online access to the Advisory Committee Notes - Federalevidence.com

Complete text of the Federal Rules of Evidence, including links to the Advisory Committee notes (Cornell University) (Dec. 1, 2008)

Federal Rules of Evidence (PDF) - Committee on the Judiciary, U.S. House of Representatives (Dec. 1, 2009)

This page was last modified on 22 June 2010 at 20:44.

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