What is the role of the Advisory Committee on the Rules of Evidence?
Judge Furman: The advisory committee itself has an interesting history unlike the other advisory committees on the rules of procedure. While an Advisory Committee on the Rules of Evidence was established in the 1960s to study and draft the first set of rules of evidence, it was dissolved after they were enacted. The Advisory Committee on the Rules of Evidence was formed again in 1993 and has been evaluating possible amendments to the rules ever since.
Today, our committee is the first line of discussion and consideration of suggestions from the bench, bar, academia, Congress, and the public to amend the Federal Rules of Evidence. We carefully consider these suggestions in public meetings so anyone can see our deliberative process. If the advisory committee finds that a suggestion is appropriate and beneficial to the administration of justice, the reporter to the Committee — Professor Capra — conducts research and drafts a proposed amendment for consideration by the advisory committee. If the advisory committee chooses to proceed, and after giving feedback on the language of the draft, we publish the draft for public comment and a public hearing. Any final amendments yielded by this process are then provided for approval to the Committee on the Rules of Practice and Procedure, the Judicial Conference, and the Supreme Court. Once approved, they become effective unless Congress intervenes.
Our members include trial and appellate judges, trial attorneys, a representative from the Department of Justice, a representative from the federal public defenders’ community, along with liaisons from the other advisory committees. This structure provides invaluable multi-faceted perspectives that ensure rule proposals are examined thoroughly from all relevant angles.
Evidentiary rules also do not operate in isolation. We have to pay careful attention to how evidentiary rules operate in both civil and criminal cases and how they interact with constitutional requirements.
What is the role of the Reporter for the Advisory Committee on the Rules of Evidence and what lessons have you learned from that experience?
Professor Capra: Each committee relies heavily on the services of its official reporter appointed by the Chief Justice. I’ve had the pleasure of serving in that role for 30 years, and I serve alongside the reporters for the other rules committees, all of whom are prominent law professors and leading experts in their respective fields.
My role at the highest level is to bring my expertise in the law of evidence to help the advisory committee evaluate suggestions for amendments, and if appropriate, do the research and drafting necessary to carry a suggestion through to a final rule. In that respect, I serve as the subject matter expert on not only the Federal Rules of Evidence themselves, but the case law interpreting them, and any issues that may arise in their application or interpretation. Each year, we can receive anywhere from several to dozens of suggestions for amendments. Not every difficulty requires changing the Federal Rules of Evidence, though, and I’ve seen circumstances where a good suggestion does not lead to a final rule amendment.
The most fundamental lesson I have learned and that the advisory committee adheres to is that evidentiary rules should articulate core principles while affording courts the discretion necessary to apply them to varied and evolving factual circumstances. This purposeful flexibility has proven to be the Federal Rules of Evidence’s greatest strength in adapting to change.
Another thing I have learned is that having clear and comprehensive committee notes is very important. Many people say that lawyers do not read the committee notes, but these notes explain the purpose of amendments, address specific interpretive questions, provide examples of proper application, and identify issues that the amendment does not resolve. I’ve researched the issue and learned that committee notes in the Federal Rules of Evidence have been cited about 1,800 times in court decisions.
What do you consider the most significant accomplishments of the Advisory Committee?
Professor Capra: Since 1993, when the Advisory Committee was reestablished, the rulemaking process has generated approximately forty amendments to the Federal Rules of Evidence. Each of those amendments were significant in some respect.
Looking back at my 30 years as Reporter, however, it is hard not to think about changes made to Rule 702 governing expert testimony after the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc. The case involved the allegation that the defendant’s drug caused birth defects in the plaintiff child. The issue of whether the drug caused the birth defect was obviously a central issue in the case.
Both sides introduced expert testimony on the issue, in a classic battle of the experts situation, and the trial court relied on existing Supreme Court precedent in a decision called Frye, and not Rule 702, to decide the admissibility of the expert opinions. The Supreme Court rejected this approach and decided that Rule 702 governing expert opinions – and not Frye – applied across the federal courts.
This decision solidified the role of the trial judge as the gatekeeper in admitting expert testimony under Rule 702. It also led to amendments to Rule 702 to ensure that judges will not allow experts to testify, even if highly qualified, unless it is shown that they conducted a thorough investigation, relied on the same methodologies that they would rely on in their lives as experts outside the courtroom, and applied that methodology reliably. This was an incredibly important development in the law of evidence, and also in promoting the fairness of trial outcomes, because the credibility of expert testimony often influences the outcome in both criminal and civil cases.
Another important amendment that comes to mind is Rule 107, which regulates illustrative aids used in every trial, criminal and civil. Examples of illustrative aids could include a computerized reenactment of a shooting to illustrate the party’s theory of the case, or a slideshow presentation by a lawyer in closing argument. These aids are not evidence – they are tools that the parties can use to help the jury understand complex evidence or how the evidence together supports a conclusion. Prior to the amendment of Rule 107 in 2024, there was no rule governing the use of aids like this. Instead, the judge would make ad hoc decisions as needed through the authority to control the presentation of witnesses and evidence.
The creation of Rule 107 was therefore designed to address the inconsistency that resulted from the lack of a clear definition of permissible illustrative aids that could be shown to the jury, how and when they could be used, and the judge’s authority to weigh any prejudice that might arise from their use.
What technological advances have most impacted the Rules of Evidence?
Professor Capra: The use of technology is an issue that the advisory committee has grappled with for decades. This experience yielded an important guiding principle for the advisory committee’s work: where existing rules can reasonably be adapted to new circumstances, the Advisory Committee should favor interpretation over amendment to preserve stability and continuity.
For example, the transition from paper-based to electronic filing systems in the 1990s and early 2000s presented the first major technological challenge. Following extensive study, the advisory committee determined that existing rules were sufficiently flexible to accommodate electronic filing without substantial amendments. Similarly, the advent of social media, electronic communications, and digital recording technologies presented novel hearsay challenges. After a thorough review, the advisory committee concluded that existing hearsay exceptions adequately addressed these categories of evidence as well.
In other cases, however, rules changes were needed. For example, inadvertent disclosure of attorney-client privileged information or attorney work-product during electronic discovery led to the adoption Rule 502 governing waiver of attorney-client privilege and protection of attorney work product.
Most recently, AI-generated and AI-processed evidence present fundamental questions regarding authentication, reliability, and the establishment of proper foundations for admission. The advisory committee is currently evaluating whether the proliferation of machine-generated opinions akin to expert testimony can be admissible without a testifying witness, and whether deepfake evidence is a problem in federal trials that needs to be addressed through a potential rule change.
The challenge in dealing effectively with the use of AI is compounded by the extraordinary pace of technological development in this field. There is legitimate concern that any rule specifically addressing AI drafted today may be outdated by the time the Advisory Committee completes the standard rulemaking process.
Learn more about the rulemaking process and the history of Federal Rules of Evidence.
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