On this episode, host Paul W. Grimm, a retired federal judge and director of the Bolch Judicial Institute at Duke Law, and Professor Dan Capra, the Reed Professor of Law at Fordham University and a reporter for the Advisory Committee of the Federal Rules of Evidence, discuss the 2023 amendments to the Federal Rules of Evidence 106, 615, and 702. Their conversation highlights how even subtle revisions to the rules can significantly improve the fairness of court proceedings.
Intro: Hello and welcome to Order in the Court, a podcast production of the Bolch Judicial Institute of Duke Law School. Here’s your host, retired federal judge, and the director of the Bolch Judicial Institute, Paul Grimm.
Paul W. Grimm: Welcome to Order in the Court, the podcast where we talk about rules and issues that make it possible for courts to do their work as fairly and efficiently as possible. I’m thrilled today to have my good friend and personal hero, Professor Dan Capra, with us today to talk about the proposed changes to the federal rules of evidence that are scheduled to take effect on December First — next month — unless Congress acts to prevent them or to modify them before they go into effect.
Professor Capra is a distinguished professor at Fordham Law School, and has for many, many years been the esteemed reporter for the Federal Evidence Rules Advisory Committee. Today, we’re going to talk about the three evidence rules that are subject to change next month: Rules 106, 615, and 702.
Professor Capra, let me warmly welcome you my friend to this podcast, and tell you how much I’ve been looking forward to it.
Prof. Daniel Capra: Thank you. Thank you. It’s great to be here, Paul. Thank you so much for inviting me.
Paul W. Grimm: Before we get started with the actual rules themselves, Dan, I’d like to address a preliminary matter. I was a practicing lawyer for so many years, and had no idea how Rules of Practice and procedure got enacted or amended. We’ve had a podcast where we’ve gone through that in detail, but for some of our listeners they might do with a little bit of a refresher. What does it take to add a new rule of evidence or to amend the rule of evidence? Could you just briefly go over that process, so our audience gets a sense of just how much effort goes in behind the scenes?
Prof. Daniel Capra: Happy to do so.
We start with any rule amendment in terms of thinking about the power to amend rules and how they get amended. We start with Congress because Congress has the authority to establish federal courts in the first place, much less establish rules of procedure, and Congress can still — to this day — directly enact rules of practice or procedure and has done so a couple of times in the evidence rules, probably more often in the Criminal Rules.
But Congress has ceded the authority — basically to share the authority — with the Supreme Court, and that’s pursuant to the Rules Enabling Act. The Supreme Court obviously is too busy to directly enact rules, and so has delegated that authority to the Judicial Conference of the United States. The Judicial Conference of the United States then has many Committees that deal with all sorts of issues that come up in the federal courts, and one of those committees is the Rules Committee, also called a Standing Committee. Basically, this is where the rule amendments would come from.
There are five advisory committees that serve the Rules Committee, which meets twice a year. And so, it has a pretty broad agenda to deal with a lot of issues, and obviously needs to have others work on it before it gets to the Rules Committee. And those are our Advisory Committees, and the Evidence Rules Advisory Committee is the one that I serve as a reporter. There’s also Appellate, Civil, Criminal and Bankruptcy.
The way a rule starts is basically with the reporter; the reporter’s job is to determine whether rule management might be needed based on information coming from the public, conflicts in the case law, and other sources, and proposes a rule to the Evidence Rules Committee. The Evidence Rules Committee looks over that rule. If the rule is acceptable to the committee, and obviously there’ll be changes in drafting, et cetera, it gets sent to the Standing Committee. And then if that’s approved at that point it gets sent out for a period of public comment, which is six months, approximately six months. It goes back to the Advisory Committee for refining, rejecting, adding, whatever it might be — very complicated process. Then to the Standing Committee again this time for final approval, then to the Judicial Conference, then to the Supreme Court, which has essentially from mid-September or October until May to review the rule and can send the rule back to the Rules Committee. Or if they approve of it, then they send it to Congress. The way that works is it’s sent out around May. Congress has until December 1st of that year to do something about the rule. They can reject the rule, they can amend the rule, but if they do nothing about that rule — this is the genius of the enabling act — then it becomes law.
The whole process, if it’s working completely successfully without any hindrances, without any problems, takes three years from basically where it would first be proposed to go through the public comment and the like. And some have rued the fact that it is such a slow process, but others think that with slow processes you get a lot more input from the public, you get a lot more thought put into the rule. And so, slowness has its benefits and detriments, I would say. And so that’s the way the rules get amended. Many rules start out well before three years. Rule 106, which we’re going to talk about, actually has been in the works for about 22 years. So, it’s playing the long game when you’re on the Rules Committee.
Paul W. Grimm: Well, Dan, I served on the Civil Rules Advisory Committee, and I think that the length of time it takes can be a real benefit. I know a lot of people lament that you can’t snap your fingers and change a rule. But these rules of practice and procedure govern all of the procedures in the federal courts, and they should not be changed willy-nilly, or amended, or adopted without some thoughtfulness. And it is a very transparent process with lots of opportunity for folks to take a look at what has been proposed, and make sure that whatever comes out is really going to be effective, and that it’s not going to upend how people practice with sudden lurches from one area to another, so I think that that is the benefit of it.
Prof. Daniel Capra: It’s very true. And not to digress, I think the rule process and the length was a very useful thing with respect to the rules we’re going to talk about today. It’s a little bit more difficult with respect to rules that you and I have been working on regarding things like computerization, artificial intelligence. Then the problem is if you take three years to adopt a rule, by the time you get it you’re talking about things that are a 100 years behind. And so that’s a big problem in those areas. I’m not sure what to do about it frankly.
Paul W. Grimm: So, let’s jump into the first rule, Rule 106, that’s known as the “Rule of Completeness.” I think it comes from the common law. Can you just briefly describe for our audience what the purpose of the rule of completeness is as it was imagined in the common law? And then we’ll focus in on the current version before we talk about the changes.
Prof. Daniel Capra: The purpose of the rule of completeness is to prevent basically an unfair presentation of evidence. A rule of completeness issue arises when there’s an entire statement or a series of statements, and the proponent is selective in what they produce. Now selectivity is not a bad thing. You wouldn’t want to have to introduce the entire Bible if you’re trying to introduce a passage of the Bible, or all the business records if you only want one. So, selectivity is not a bad thing. But selectivity is a bad thing if it’s done in a way that misrepresents what was actually said in that record. And the remainder can actually put the entirety of the statement before the fact finder in a way that shows that that’s what it actually said. Then that’s where the rule of completeness applies. It’s a matter of fairness to prevent against misrepresentations in selective presentation of statements.
Paul W. Grimm: And I think that one of the reasons why the rule has such power is that it allows the party that wants the statement completed to request that the court order that it be done at the time that the adversary has put in the incomplete version, as opposed to just telling the person who wants to complete it, “Well, wait your turn. You’re going to go in a couple of days, you could put it on then.” Given the danger that the fact finder — particularly a jury — would not remember and would miss the context of it and be misled for a period of time. Is that the basic theory?
Prof. Daniel Capra: That’s true, and part of the problem is the way the rule was written is it looks like that’s all it does, that it’s basically a timing issue. The idea of timing is you don’t want that misapprehension to fester for a long time. You want to correct it right away. That’s true, but it’s more complicated when you’re correcting with the completing information that is either an oral statement or is hearsay. And the rule as written, I don’t think did a good job of answering those more sophisticated questions.
Paul W. Grimm: So, let’s talk about that. The current version, the one that will be changed effective December the 1st, Rule 106, limited the statements that were subject to completion to writings or recorded statements. Now the amended rule makes two changes, it broadens the statements it’s applicable to, and it has some discussion about hearsay.
Why don’t you walk us through what the new rule is going to say and how it builds from what the original rule was, and addresses some of the shortcomings of the original rule.
Prof. Daniel Capra: So, I must say, though just to start out on this answer, that the rule comes from an opinion from I would say the best judge in the United States on rules of procedure, an opinion by Judge Paul Grimm, all the questions about how the rule of completeness ought to operate. And there was a hypothetical that was given in that opinion that led the committee through five years of turmoil and dispute about this rule, so I think I’m going to start with that hypo if you don’t mind.
Paul W. Grimm: Please do —
Prof. Daniel Capra: It is one in which the defendant is charged with essentially a gun crime, and he’s speaking to police officers. He says really two things. He says, one, “Yes, I bought that gun two years ago.” But this is the second part, “But I sold it a year later.” Meaning, basically he had it two years ago, hadn’t had it for a year.
So, what the government does is introduce the first part of that statement, not introducing the second. How can they do that? Well, the first part of the statement is admissible as a party opponent statement under 801(d)(2). Oh, and we should also add that this is an oral statement, and not one that’s recorded. So, it’s really two problems we’re going to be talking about.
So, the first part is admissible under 801(d)(2). But the second part, the one where he says, “I sold it a year ago,” the government doesn’t have to admit that. They don’t want to admit that.
When the defendant tries to admit the second part he’s subject to a hearsay objection and the reason for that is rule 801(d)(2). Under 801(d)(2) your statements can be offered against you, but it doesn’t give you the right to offer your own statements. So, he’s arguing that the statement is basically misleading, which clearly it is because if the jury only hears the first part, then they’re going to draw the inference that he still has it. Why say you bought it and don’t say anything more unless you still have it? But that’s not what he said. So, this is a classic situation where the rule of completeness ought to work.
However, as of today until December 1st, it doesn’t work that way in many courts for two reasons. One is that many courts will hold that the rule of completeness is not a hearsay exception. All it is is the timing rule. It means that if the completing portion is independently admissible, then it could be admitted at the same time the selected portion is admitted. That’s got a very limited application because to have that statement in the typical situation where a defendant is making statements to the police what they want to complete with is not independently admissible — it’s just not — there’s no hearsay exception for it.
Then, even if there were a hearsay exception for it, the rule of completeness as currently written does not cover statements that are not written or recorded. It does not cover oral, unrecorded statements. The reason for that, we can talk about that later as we go through this as to why that would be, but that’s what the rule provided.
And so many courts would say that the rule of completeness will not work if the statement is an oral, unrecorded statement. Other courts would say, “Oh, well, if it’s properly completing, we will admit it even though it’s oral unrecorded under the court’s power under Rule 611(a).” Rule 611(a) gives the court the authority to control evidence as to any issues as to presentation of evidence. And in the famous case by Judge Friendly, the Second Circuit said that “You can complete under Rule 611(a),” but other courts do not.
The problem is how to figure this all out? Some courts say “Well, we can still use the common law” because the Supreme Court, in a very unfortunate turn of phrase in the Beech Aircraft case, said that — in dictum — said that Rule 106 is a partial codification of the common law, which led some courts to say, “Well, there’s still this common law rule of completeness, and the common law rule of completeness covered oral statements, so we’re going to cover oral statements under the common law.”
I think just the way I’ve gone through this confuses me, and I’ve been working on this since 2004. And so, it’s really hard I think for courts and litigants to figure this out, especially given the problem that these rule of completeness issues usually don’t arise in limine. They don’t arise when there’s a brief in front of the court or anything like that.
They arise when the government comes in with a police officer who gives part of a statement at trial, and the defendant wants to complete. Who’s going to be looking at the common law in that circumstance? And I know you know, Paul, there’s an important Fourth Circuit case. I think it was on appeal of your decision, where a defendant wanted to use the rule of completeness to justify admitting an oral completing statement. And what Judge Niemeyer said is, “What, why would the common law apply here?” Which is a pretty good answer — why would the common law apply here? Well, we don’t think the common law would apply here. And at any rate, even if the common law applied here, it couldn’t establish a hearsay exception.
There was obviously a hearsay problem and the oral statement problem because that’s not what is allowed. There’s no such thing as a common law hearsay exception under the federal rules of evidence. Not a bad point.
Anyway, it’s a very confusing area and also quite unfair, especially to criminal defendants who can’t complete and make a statement [of] what they actually said, as opposed to what the government is using in a misleading way. And so the dual goal of the 106 Amendment is to, one, create a hearsay exception, specifically in Rule 106. Or let’s put it this way, [it’s] a way to overcome the hearsay objection of the government. And secondly to cover all statements — whether they’re recorded or not.
Paul W. Grimm: So, the new change will allow the rule of completeness for all statements regardless of whether they’re written or recorded. And it will allow completion — I think that most lawyers think of it in the classic sense of you’re cross-examining a witness or you’re doing a direct examination of a witness, you’ve got a deposition transcript.
At page four of the transcript they say, “No, I don’t really remember what color the light was.”
And then at page 104 they say, “Wait a minute, I remember the light was red, it was definitely red.”
So, they correct themselves because the process of the deposition refreshes their recollection.
At trial the lawyer comes in and says, “Now, is it true that you testified in your deposition at page four of the light, you couldn’t recall what the color of the light was?”
“Yes, that’s right.”
The other side jumps up, wants to complete, and the judge then takes a look at it. So, most lawyers imagine this with a single document or statement being used for completion, but that’s not what the rule says, it says that “any other statement” [can be used to complete]. So, help us understand what is meant by that “any other statement” and give us some examples if you could.
Prof. Daniel Capra: So, most of the time it is just one statement that we’re talking about. In 95% of the cases, it is one statement that we’re talking about. You can see how a situation would occur in which something gets clarified later because the way that certain interactions occur. So, in one case the question was essentially: What did the defendant know about something? What were they told about something? And that’s important to the case. If they’re told one thing, the case goes one way. If they’re told an additional thing the case goes another, and it’s a whole compendium of information. How much information did they have?
And so, what’s shown in the case is that on a Friday they were at a meeting, and they were told A, all right. And A is not all that they need to know to act in the way that they did. And then on the next meeting, on Monday, they were told B. So now they’ve got the completeness, the complete information, but they got it in two separate tranches, shall we say. So, if you just introduced the first thing that happened on the meeting on Friday, you’ve misrepresented what they actually heard. And that would’ve, then, allowed completion with the meeting with what was learned in the meeting on Monday.
Paul W. Grimm: I think the most important [change] and perhaps the one that took the most discussion, and maybe even disagreement during the amendment process, is that the new rule when it goes into effect will allow the completion even in the face of a hearsay objection by the party that had originally started the process by quoting from an incomplete portion of it.
Help us understand that because I think the advisory note gives some guidance as to— it doesn’t always mean it’s going to be substantively admissible, sometimes it’s not. And help us understand that and how we should look to apply that new portion of the rule, when we’re trying to figure out is it substantively admissible or just admissible for a correcting purpose.
Prof. Daniel Capra: Well, this was the disagreement in the committee that took so long to work out, and it actually happened over a couple of [committee] chairs. The problem that some people saw it on the committee was that the completing statement — we’re going to assume for basically the integrity of this discussion that you really have a completing statement — that is to say that what’s happened is there’s something misleading and this other statement will complete it, which is a rarity actually, but let’s assume that that’s the case.
Well, in that situation, the completing statement could be offered just for context as it was said. It puts the first statement introduced into context. And therefore, that’s the answer. It’s just a context thing. Really if you think about it that way, then the rule doesn’t need to be amended. Because if it’s offered for the non-hearsay purpose of context, that can be done under the original 106. But they were willing to say, “Well, maybe we should put in context because courts aren’t getting that. Courts are not getting that. They’re not [permitting] it. They’re not admitting it for context.”
The problem with admitting it for context is it puts, in this case we’ve been talking about, the defendant at a disadvantage. Just to go back to our statement about the guns, the government gets to admit the first statement that “he bought the gun” for its truth. The defendant gets to admit the second statement, “But I gave away the gun,” for context. Well, context doesn’t mean that the jury can admit that statement for its truth. And also, that the government upon request gets a limiting instruction that the jury won’t understand, don’t even know what’s going on. This can be offered only for context, but not for the fact that he gave up the gun. Well, but the defendant wants to show that he gave up the gun, that’s what he’s got to show.
And the only reason that puts the first statement in context is if it’s true. It’s not useful for context unless it’s true. So, I thought the context thing was a bunch of hooey quite frankly, and complicated — unnecessarily so. So, why not just admit the statement for its truth?
That said, there will be situations in which a statement actually is admitted for completion for context. In other words, it’s not required that it be admitted for its truth. In the example that’s given in the committee note — this one we were just talking about — that you’ve got a completing statement. And you don’t want to know whether that statement is true, you just want to know that the defendant took it into account. In other words, it’s offered for its effect on the listener. And if it completes what the listener then knows, then it could be admissible.
But it’s not admissible for its truth. It truly is admissible just for its effect on the listener. So, the way that this got solved in the rule — I have to take credit for this, I think I [found] a pretty good answer to this problem — is to just say that the statement if it completes is admissible over a hearsay objection. That covers use for context and that covers use for truth. But in the situation that Judge Grimm raised — the one about the two statements about having the gun — it’s definitely got to be admissible for its truth, definitely.
Basically, what the rule gives is a case-by-case approach that judges are to follow. But obviously in most cut-up statements the completion has to be admitted for its truth, otherwise it doesn’t really clarify anything.
Paul W. Grimm: And then I want to complete our discussion of Rule 106 before we move on to our remaining two rules. I want to save the most time for 702 because that’s the heaviest lift here. I think it’s important for our audience to remember that the rule of completeness has always been a narrow rule, and it only really applies when there has been something misleading or unfair about the omission. I remember times as a judge and as a lawyer seeing a party try to leverage something that was not necessary to complete for fairness to avoid a misimpression, but simply to go to a completely different portion of the same statement that supported their theory of the case, but it was not necessary to complete any misstatement that the offering party had made. Nothing about the new rule changes that, I take it.
Prof. Daniel Capra: Let me give you a leading example of a case has been decided under the old rule, and the answer would be exactly the same under the new rule.
The case is called Branch, it’s in the Fifth Circuit.
It’s about the Branch Davidians around Waco. The defendant is charged with picking up a gun during an ATF raid. The ATF is raiding the premises, and the charge is that he picked up a gun during that time, and that’s a felony. Good idea, don’t be picking up a gun when the ATF is coming. And so, what he says to the police officer is, “When I saw the ATF coming, I went down to the kitchen, and I picked up my AK-47. But then what I did was I went up to the bedroom and I did nothing during the raid. I sat [it] under my pillow during the raid, and I did nothing. I didn’t shoot it, I just had it.”
So, the government introduces the first part of that. I picked up the gun and the defendant says, “What about all the completing aspects of it?” There’s no completion required there or really allowed there under Rule 106 because the first statement is a complete statement of the crime, “I picked up the gun.” It doesn’t matter what he did after, but what if he’s charged with shooting a gun during the ATF raid? Then that statement, the first part of that then becomes misleading because if all the jury hears is that he picked up a gun, they’re going to infer, of course, that he shot a gun during the time when that’s not what he said. So, if you follow that distinction, you can see where the rule applies and where it doesn’t.
Paul W. Grimm: That’s a great way to sort of sum it up in terms of what the underlying purpose is, and what the parameters are. The next rule change was one that was an interesting change to me, it was the change to Rule 615, so-called Rule of Sequestration. I mean I think lawyers are very familiar with that. The current rule provides that upon motion of a party, or the court acting on its own can order that a person who is intended to be a witness in the case be excluded from the court while other witnesses are testifying to make sure that they’re not being coached. The exceptions are clear and common sense.
Obviously, a named party cannot be excluded — a designated representative of an organization or an entity, a single designated representation, representative; a person whose presence is necessary to help a party prosecute or defend, for example, an expert who needs to hear testimony for the basis [of their opinion]. And then individuals who have a statutory right to be there, or a victim in a crime perhaps might have a statutory right.
And pretty much everybody understood it, but the current rule does not address whether the court’s authority ends with just saying, “You’re out of the courtroom during this testimony.” Or whether the court could take action to supplement that with additional orders to make it effective beyond simply saying that the witness can’t be in the courtroom.
Can you walk us through the change to Rule 615 that will go into effect, what its purpose is and how you think it will clarify a confusing area about the authority of trial judges to make the Sequestration Rule effective?
Prof. Daniel Capra: Yes, the spirit of the rule is to regulate the problem of tailoring testimony. A witness who hears what had gone before can tailor their testimony accordingly. So, it’s protecting against that happening. The problem with the rule as it’s drafted, as it exists, is that the spirit of the rule is not completely effectuated by the rule itself. Because the rule itself simply requires a court to exclude the witnesses upon motion of any party. But a witness who’s excluded has access to trial testimony, they do. Especially today, all they have to do is get on the internet. If you’re going to testify in the Sam Bankman-Fried trial, you know exactly what was said to the word on the day before you testify. You know exactly what was said. And it could happen, and this wouldn’t be prohibited by the terms of the rule that a lawyer could just send the transcript to the witness, or the witness could just get on PACER and figure out what happened.
So, the rule is working really at a half measure if what they want to do is protect against tailoring [testimony]. What about access once you’re excluded is really the question. So, this led many courts to say that “Well, we’re going to apply the spirit of the rule to basically say that Rule 615 orders actually do extend outside the courtroom. They actually do prohibit witnesses from accessing trial testimony,” even though that’s not what the [rule] say[s]. And the problem is that Rule 615 orders [often] are not explicated very well at trial. A judge will just say, “Well, I’m imposing the rule, now get out of the courtroom.”
Sometimes they don’t even say 615, they just say “the rule”. And so, what does a rule 615 order mean? And if you’re just a witness who does not know the nuances of all Rule 615 issues, you think, “I’ve been excluded.” Well, does that mean I can’t access trial testimony? It didn’t seem, to me, that that’s what it means. And then, even if you look it up, that’s not what it [says].
Most circuits hold, actually, today that the Rule 615 order means more than it says. And it’s never good for an order to mean more than it says, especially an order which says essentially, “If you violate this order there could be sanctions.” The judge is not going to be happy about that. So, you would want these orders to be more explicit. And what’s readily recognized by all the courts is that the 615 order is not the terminus of a court’s ability to control the proceedings.
If you think about it, a court could be asked today to go further. There are gag orders that are going on, and they go farther than the courtroom. So, you could actually impose more limitations on access by witnesses to trial testimony if you were asked, but the thing is a lot of people didn’t know to ask because that’s not in any rule.
So, you had this unsatisfactory situation in which some courts were applying Rule 615 as it was written. And the First Circuit was the leader in this one and said, “Well, if you want more, just do an order,” which is a trap for the unwary because it’s not in the rule. And that becomes a problem of selective application. And other courts saying, “Well, you don’t need to do that because a Rule 615 order extends that far.” But it doesn’t actually say that. So, this rule is my favorite rule, I think, that I’ve ever had for an amendment because it really makes things clear, which is an important thing.
It rectifies a conflict in the courts. It’s not partisan. It doesn’t help defendants more than plaintiffs or defendants more than the prosecutor, it just helps everybody. So, what it does is it basically says if you’re saying “this is a Rule 615 order,” it means what it says. It just means excluding witnesses from the courtroom.
But a newer provision in 615 now says if you want to get more than that, if a party wants to get more than that, and of course a court can do this on its own motion too, then you can get an extra order or additional aspect to an order that would prevent witnesses from getting trial testimony and prevent parties from giving them trial testimony. And that’s what the rule says now, what the rule will say.
Paul W. Grimm: And I think that particularly now as you point out, Dan, when it’s so possible to get from other sources what testimony has been offered, even when you would think that that would be a hard thing to do, it’s not in many cases. And oftentimes in the cases when you most want the rule to apply and not have coaching, that it allows that explicit order from the court to make sure that there’s no confusion. Because in the absence of an order, certainly lawyers might be thinking, “Well, he didn’t say I couldn’t discuss it with the witness when I prepare them.”
I think the advisory note is helpful because it recognizes that there may be issues centering around professional responsibility of an attorney to their client, and in a criminal case effective assistance of counsel that could arise if the order prevents a lawyer from telling a witness that the prosecution witness said “X, Y, and Z. And so, one of our defense witnesses said “A, B, and C., so, I want you to know that they’re going to ask you questions about that”. Is that a violation of the rule? And I think it recognizes that the judge is going to have to deal with that on a case-by-case basis. As we conclude this can you just sort of offer some thoughts about how that might take place?
Prof. Daniel Capra: Well, your circuit has, I think, the leading case on that. It’s the Rhynes case, and I side with [what] Judge Niemeyer [said] in dissent... In the Rhynes case the court held that preventing the defense counsel from telling the witness about something that was said about a drug transaction I think the day before in trial, preventing that violated the right to effective assistance of counsel essentially. But what Judge Niemeyer points out is you can prepare a witness in a way that gets them prepared, but you don’t have to specifically refer to trial testimony. And you could argue that that’s a distinction without a difference. I think it’s a pretty important distinction. Instead of saying, “Bill, the witness testified about this drug transaction, what do you have to say?” Versus, “Do you have anything to say about a particular drug transaction?”
In other words, not to refer to the witness testimony is not such a terrible limitation on preparation. Anyway, it’s a complicated issue. And the committee couldn’t think of writing a rule about that, about how a sequestration order and an order to limit disclosure outside of court would affect trial preparation. I do know, though, that there’s a pretty good amount of case law on this. There are many courts who have prevented, have limited, this preparation specifically with witness testimony because preparation can be done in a variety of ways that don’t implicate witness testimony. And then there are these cases where essentially what would happen would be the witnesses were at a table, this was a simple case. So, witnesses were at a table and at the end of the day the lawyers would bring in all the testimony, and they would all go over it in this woodshed situation. And the judge says, “I’m not having any of that.” And I think that’s true both before and after this amendment.
Paul W. Grimm: I think the practice pointer that I would suggest to counsel when they are applying this is when in doubt raise it with a judge beforehand, say, “I’ve got to be able to prepare my client. I’ve got to effectively represent them.” Know what the case law is for your circuit and go accordingly.
Prof. Daniel Capra: Right. And this rule does not affect any of that.
Paul W. Grimm: All right, we saved the best for last, Dan. Depending upon your perspective, one of the most bedeviling, or one of the gifts that keeps on giving is the continuous efforts on the part of the rules of evidence, and judges, and lawyers is to figure out what to do with opinion testimony, expert testimony under Rule 702.
As everyone is familiar who is listening to this podcast, a tectonic change occurred back in the late 1990s with the Daubert, Kumho Tire and Joiner cases. Rule 702, which is the rule that deals with opinion testimony on scientific, technical, and specialized information was amended in light of [Daubert], and while it did not adopt by name the Daubert standards, it certainly was informed by the underlying purposes of Daubert and added some requirements that expert testimony, in addition to helping the jury and being based upon [the witness’] expertise, that the methodology and principles that led to the opinion to be expressed were reliable and reliably applied.
And that launched a renaissance in the way in which expert testimony came in. Since that occurred, there were a number of events that focused in on what’s referred to as forensic evidence in criminal cases, which could be anything from tool mark evidence to blood splatter, to hair analysis. And a lot of back and forth about how judges functioned as the gatekeeper, which led us to the proposed changes to Rule 702 that are scheduled to take effect.
Can you walk us through what the underlying rationale was that required this change? When you read it quickly you might not pick up how important a change it is because it can be a little bit subtle. But I find this to be an important change because it clarifies, I think, in a way that had been confusing to lawyers and judges, the judge’s gatekeeper role and what the proponent must show. So, can you walk us through what these new changes are? What they’re trying to usher in, and how we can best understand and apply them?
Prof. Daniel Capra: So, the amendment came from two separate sources. One source was I would call it the preponderance of the evidence issues. The concern was — and still is — that there are many courts that have found that the requirements of the 702 Amendments-- specifically, sufficient facts or data, reliable methodology and reliably applied --many courts had treated those admissibility requirements as questions essentially of weight.
Basically, they had applied what I would call a Rule 104(b) standard to those admissibility requirements. 104(b) meaning, well, the judge is not convinced, but the judge could see that a jury could find [it convincing]. And that actually did happen in a lot of cases and especially a lot of circuits. And basically, they proceeded from this kind of discussion that, “Well, there’s a liberal thrust to expert testimony,” basically shifting the burden to the opponent to show that there was untrustworthiness.
And that’s not the way that the Rule 702 amendments were written. The Rule 702 amendments, basically they included the 104(a) standard, at least in the committee note, the preponderance of the evidence standard. And so, these courts had strayed. They had not followed the amendments in Rule 702. We can talk about why they did that in a second, but that was one strain. And so, the major amendment there is to say that the court must find that the proponent must establish more likely than not that all these factors are met.
And the second focus that was thought to need an amendment was basically about forensic evidence, and that forensic evidence, and I don’t know how far back we can go into this, but basically, courts had accepted forensic evidence for many years. And then two scientific reports came out indicating that forensics were not as scientific as the courts had thought.
Basically, that what was happening, beyond the idea of going through to see what might be unreliable about certain methodologies, which I think is probably beyond the ken of an advisory committee. The problem was that many experts were overstating their opinions. They were using a subjective process, and yet, they were saying it’s a match to 100% certainty.
And so that [a] possible amendment could be to add some kind of provision to the rule prohibiting overstatement. Over time, that turned out to be not the way that the committee decided to go. And so that part of the amendment is the provision, which says that the judge must actually investigate whether the opinion proceeds from a reliable application of reliable methodology.
Paul W. Grimm: And I think that that last part that the original advisory note in 2000 talked about that it wasn’t in the rule but talked about that. They talked about this analytical gap. You have certain facts that are established. You have certain methodology, and by applying the methodology to that facts there’s a range of legitimate conclusions that can flow from that. That’s a stream that you can hop over. And sometimes the hop was much wider than you could get, and that was part of the advisory note. And I think you picked it up, we really had our attention focused on this in 2009 when that first report came out. And then in 2015 when the President’s advisory council on science-technology report came out.
And so, this dual component of the new rule that requires the judge under their 104(a) gatekeeper role, to make the findings that the proponent by a preponderance has shown those criteria that were always in the rule. And then, secondly, makes sure that the opinions are not a bridge too far, so to speak, based upon that I think are very, very useful additions to what the rule does.
Prof. Daniel Capra: I think the problem is that as to the first one about the preponderance, I think the problem lies in Daubert itself. Daubert is what you make it. There’s mixed signals throughout the opinion. It does say it’s a 104(a) standard, and we’re worried about junk science. But it also has this, I think, this awful statement which says the remedy for shaky but admissible testimony is you give it to the jury, and you cross-examine, et cetera. Well, shaky but admissible assumes its own answer, right?
In other words, if you restate that it says the remedy for admissible testimony is to admit it. Well, thank you so much court, that’s really great. Thank you so much. I don’t even know what that means. But yet, it can be seized on by somebody who says, “Well, it’s a liberal thrust,” and that was the problem that hopefully is rectified by this amendment.
Paul W. Grimm: No, I think the amendment helps a lot, as a person who’s read Daubert many times. In the application of my work as a judge there were so many scratch-your-head moments in reading that. They talked about, “Well, the judge is not supposed to decide whether the expert’s opinion is correct, just whether it’s reliable.” And to the ordinary judge who’s dealing in an area of science and technology that they don’t necessarily have expertise in, how they’re supposed to do that?
Prof. Daniel Capra: And the other one is that the judge is only supposed to look at methodology not application — not how it gets applied. And then only a few years later, “Oops, we messed up on that one.” Because somebody who says, “What’s the methodology?” “Well, reading reports is a methodology.” “I read all the reports.” “What’s your conclusion?” “The earth is flat and that should be admissible.” “No, it shouldn’t.” So, this analytical gap is a really important thing. Daubert is a landmark case, but it does have its problems. These amendments are trying to correct those problems that stem from Daubert if you ask me. That’s my thought.
Paul W. Grimm: And I think that that’s right because it’s an experiental thing. And as you know, not all of the justices on the Supreme Court at any one time have had a lot of experiences either as trial lawyers or trial advocates. No criticism. They’re enormously distinguished jurists. But you really, in a nuts-and-bolts rule like this, it’s so important because so many cases now, just the mine-run of cases in civil and criminal cases involve expert testimony.
And by definition it doesn’t start unless the jury needs help in an area that they can’t figure out on their own. And so, the threat or the risk of an expert who is not using a reliable methodology or sufficient facts and limiting it to what flows properly from that analysis can be very detrimental because the jury is in a battle of wits unarmed and can’t really dispute it. And that notion about what goes to the judge and what goes to the jury, I think there’s still a lot of lawyers and judges who really are a little bit fuzzy on that distinction between what the judge controls and what the jury controls under 104(a) and 104(b).
Prof. Daniel Capra: And you say a battle of wits unarmed. I would suggest don’t put that in the committee note because there was something to that effect in the committee note about jurors being unable to handle these difficult issues. And a lot of pushbacks on how we were insulting juries and you’re insulting the jury’s intelligence, et cetera. So that got tempered, but it’s still in there. Just think the jury can’t understand complex issues of methodology. They also can’t understand complex issues of application.
And so, that really should be a judicial question. I don’t see the difference between the two, so I think you need a judge to do that. Now, the pushback from students and really anybody is why is a judge any better equipped to answer any of these questions about expert testimony than a jury? And that’s a fair question, and that’s a question that probably didn’t get enough thought in the Daubert case itself.
And maybe the Frye test is a good one — that we rely on other scientists to decide this issue of trustworthiness, but we haven’t done that. And I think over time, at least, judges are so much better at doing this now than they were in 1993 for a variety of reasons that maybe we could talk about or not, that it is true that judges do a better job of this than juries. And so that’s why 702 is as it is.
Paul W. Grimm: I think that that’s exactly right. The note that really echoes in my mind every time I think about this is Chief Justice Rehnquist’s comment either with concurrence or he concurred in [part] [and] dissent[ed in part], in which he said, “I yield to no one in my respect for the ability of the federal judiciary to be able to undertake these difficult things. But I have no idea how they’re supposed to determine falsifiability, and some of the principles that Daubert were built upon.” And some people would say that there was perhaps a naive assumption in Daubert that there was sort of a correct version of science that scientists would be able to agree on, like they don’t disagree about everything as much as lawyers disagree. So, it’s really in the application that’s the challenge.
If you could take a minute as we conclude and just share with our audience, what do you think is most important for lawyers and judges themselves to take away from 702 that would help them better employ this rule to accomplish its objectives and make sure that juries get the most helpful information on highly technical and specialized information, knowing that neither the judge nor the jury is ever going to be as expert as the people who are expressing their opinions? What’s the key takeaways that you would address on this rule as we wrap up our conversation today?
Prof. Daniel Capra: I guess what I would say is the idea that you can get away with a half-effort reading a couple of studies, doing a drive-by for an accidentologist. Basically, not doing enough homework to come up with your conclusion, that should be in the past now. Because what’s clear is that you, by a preponderance, have to show sufficient facts or data, and I think a court can suss out insufficient facts or data pretty easily.
Maybe they don’t know all about the methodology and how it works, but I think they do know how hard the expert is working, how hard the expert isn’t working. And you see constantly in opinions where the expert is asked, “Well, did you do this particular thing? ‘No, I didn’t do that thing, I didn’t think it was necessary.’“ And it looks like they’re just breezing to their conclusion, and courts get that.
And it’s true. I hear especially with experience-based experts who are relying on the methodology being one of experience is hard to explicate, but what a court will say is, “We’ll look at is, well, how hard did you work to come to this opinion?” If you’re just walking by an accident and you say, “Well, in my opinion based on 3000 accidents this is what happened.” I’m not going to allow that. I need to make [sure] you did some testing, you did some investigation, you did some talking to people. So, I think sufficient facts of data is a really important thing now.
And then I think that courts are now going to take more account of, “How did they come to this opinion?” If they say, for example, that, “We used cell phone triangulation for location, and we located the defendant in a particular apartment.” You can’t do that because the methodology, the technology doesn’t allow you to do that, you’re over promising.
So, I think those are the two important factors. I think the methodology issue is one that courts have worked with, that’s hard to figure out. I don’t think this rule is intended to change much there. What the committee saw was misapplications of sufficient facts or data and application, and I think that’s what it was trying to drive at. I do note that a lot of the comment indicated a misunderstanding of what the rule was supposed to be.
And so that’s going to have to change, an idea that my expert is presumed to be reliable, that’s not so. That all I have to show is methodology and not application. These were actually comments in opposition to the rule, saying that the rule was being changed from the happy day when all of these things were so, but they were never so, and so that’s a good reason to have the rule. It seems to me that the negative comments actually proved out the rule. It really did.
Paul W. Grimm: I think that that’s exactly right. And I would just simply suggest to our audience that they should continue to read the 2000 Amendment advisory note because it makes it clear that while most of the lawyers know the mantra of Daubert — error rate, peer review, general acceptance, and standard testing protocols. There’s a lot of other things too that go into that methodology and whether they’ve taken that analytical leap, it’s too far, such as did they account for alternative explanations? Does the methodology exist for a non-litigation purpose? And if so, was the same degree of rigor used? Those are still good questions to ask as well. So, I would not want to suggest to lawyers and judges that they not read the original suggestions in terms of how judges might do their job better. I think that the new rule focuses this much better, and I’m hopeful and looking forward to watching its application with hopefully better outcomes.
Prof. Daniel Capra: I would say a few things, one, is the 2023 amendment doubles down on everything in that note, I’d say. And one might say that the 2000 Amendment, the very reason for the 2000 Amendment was to write that note to provide guidance to people in figuring out the thousand Daubert cases that had come out. I think that was a very important reason for writing the note. And then the third thing I would say is you can’t write a note like that anymore, that note is one of a kind. And the committee, the Rules Committee says that you can only write notes about the text itself. But I would say that [2000 amendment] note really proved its worth because it’s cited everywhere, even today. And so, I would hope for a time when notes could do more than they’re doing right now, that time is so far, right now it’s passed.
Paul W. Grimm: I agree with you remembering those same injunctions that I heard on the Civil Rules Committee by our wonderful reporter saying, “You can’t do that.” But I also remember as a judge being very grateful for the note to the 2000 changes, because sometimes you’re hanging onto the edge of the ledge with just your fingernails, and you need something to hold onto to keep yourself from falling. And those would suggest comments that when you actually explored them, they made the job easier, so I agree with you.
Well, Dan, this has been a wonderful presentation. No good deed goes unpunished because we’re going to have you back next week to do another program on the proposed changes for 2024. As one person who has always looked at the entire world through the lens of the rules of evidence, I can’t tell you how fun this has been for me, to have a chance to spend so much time with one of my heroes. And I look forward to having this out there for our listening audience to get the benefit of that conversation, and to continuing it next week with some new rules. So, thanks so much, Dan.
Prof. Daniel Capra: Yeah, me too. It was really fun, Paul. And I take to heart your point about you live with the rules of evidence, because I constantly go through life and I see something happen to me and I say, “Well, that’s a 407 Moment,” or “That’s an 803(2) Moment,” so that’s the way my life is. And evidence is life, Paul, as we both know. So, thank you for having me here today.
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