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History of the Federal Rules of Evidence

By Josh Camson

The Federal Rules of Evidence were originally enacted in 1975. This year marks the 35th anniversary of that enactment. However, the long road to codifying a uniform set of Federal Rules of Evidence started officially almost 50 years ago in March 1961. At a special session in mid-March, the Judicial Conference of the United States approved a proposal to start an Advisory Committee on Rules of Evidence. That meeting in 1961 was far from the first time such an idea was proposed. In 1938, former Attorney General William D. Mitchell suggested that an “advisory committee should tackle the task of revising the rules of evidence and composing them into a new set of rules to be promulgated by the Supreme Court.”[1] In the next 20 years, articles in the Harvard Law Review, Vanderbilt Law Review, and Insurance Law Journal all discussed the adoption of uniform Federal Rules of Evidence. In 1958, the House of Delegates of the ABA recommended the formulation of uniform rules. Later that same year, the Judicial Conference established a Committee on Rules of Practice and Procedure. In 1961, the Committee on Rules of Practice and Procedure requested, and the Judicial Conference approved, the creation of an Advisory Committee.

The Advisory Committee then formed a special committee whose role was seemingly straightforward: make a recommendation on the advisability and feasibility of creating uniform rules of evidence for the federal courts. Chief Justice Earl Warren appointed the eight members of the special committee. To ensure diversity from experts in all areas of the law, “the Chief Justice designated the Chairmen of the Civil, Criminal, Bankruptcy, Admiralty, and Appellate [Advisory] Committees, under the chairmanship of Prof. James Wm. Moore.”[2] The Chief Justice appointed Professor Thomas F. Green, Jr. of the University of Georgia Law School as the reporter to the special committee. The special committee’s report was submitted for commentary on February 12, 1962, along with an attached work by Professor Green: “Preliminary Study of the Advisability and Feasibility of Developing Uniform Rules of Evidence for the Federal Courts.”

The Need for Uniform Federal Rules of Evidence
The special committee surveyed the history of evidence law in the civil, criminal, admiralty, and bankruptcy fields. The survey found several peculiarities in the history of evidence law through the years. For example, until 1933, the federal courts hearing a criminal case used the rules of evidence governing the state where the federal court sat. However, they had to apply the state rules as they existed in 1789, when the federal courts were created. If a state joined the union after 1789, the court had to utilize the state evidence law as it existed when the state joined the union. In bankruptcy law, the Competency of Witnesses Act governed; that is, unless the case involved the examination of “a bankrupt and his wife,” in which case the Bankruptcy Act governed.

The contemporary shambles of evidence law was almost as troubling as earlier practices. In a civil case, the governing evidentiary law could come from federal statutes, federal decisional law, or state evidence law.[3] Of course, these three sources could also conflict. In the arena of criminal law, Criminal Rules of Procedure 26 and 27 dealt with evidence. Rule 26 stated:

In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an act of Congress or by these rules. The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, 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.[4]

Rule 27 states that “[a]n official record or an entry therein or the lack of such a record or entry may be proved in the same manner as in civil actions.” These rules were not meant to rely on state law. Instead, according to the Criminal Rules Advisory Committee notes, the rules contemplate “the development of a uniform body of rules of evidence to be applicable in trials of criminal cases . . . ” Of course, those uniform rules weren’t adopted for another 30 years.

Many legal scholars at the time agreed about the poor state of evidence law and the drastic need for some kind of rehabilitation. Dean Mason Ladd of the University of Iowa said that “[a]ll of the law of evidence needs clarification and simplification. . . . A review of the history of evidence, with its spotted and often accidental growth, is persuasive proof of the need of introspective study of the law of evidence with a view to far-reaching improvement.”[5] Professor Edmund Morgan wrote about the rule of hearsay that “a picture of the hearsay rule with its exceptions would resemble an old-fashioned crazy quilt made of patches cut from a group of paintings by cubists, futurists and surrealists.”[6] With evidence law in a blatant state of disrepair, something needed to be done.

Writing the Rules
In its report on the advisability and feasibility of drafting uniform federal rules of evidence, the special committee made two conclusions. First: “the Rules of Evidence applied in the Federal Courts should be improved.” Second: “Rules of Evidence which would be uniform throughout the Federal Court system, are both advisable and feasible.”[7] The special committee’s report was circulated, and legal professionals from around the country provided feedback. The feedback confirmed the special committee’s conclusions, and Chief Justice Warren appointed an advisory committee of 15 people to draft the first uniform federal rules of evidence.

The advisory committee consisted of trial lawyers, federal judges, and law professors, and met for the first time in June 1965. On January 30, 1969, the Advisory Committee on Rules of Evidence sent the first Preliminary Draft of Rules of Evidence to the Chairman of the Standing Committee on Rules of Practice and Procedure. In a letter attached to the preliminary draft, the advisory committee recognized the help provided by the American Law Institute Model Code of Evidence, Uniform Rules of Evidence, New Jersey Rules of Evidence, and California Evidence Code. Those rules ensured that the Advisory Committee didn’t have to start from scratch.

This article looks at the original proposed draft circulated in 1969 for historical and comparative purposes, but this was far from the final version signed into law. After the initial draft, the legal community commented on the rules, and various changes were made. Those rules were sent to the Judicial Conference, which then sent them to the Supreme Court. Further changes were made to that draft, including many suggestions from the Justice Department. Once the final changes were made to the draft rules, they were submitted to Congress on November 20, 1972.

Unfortunately, in early 1973, Congress established the Senate Select Committee on Watergate. That same day, the Senate passed a bill to delay enactment of the rules.[8] For the next two years, the House and Senate held extensive hearings about the rules and made changes to the submitted draft. Finally, on January 2, 1975, the rules were signed into law.

The Federal Rules: Then and Now
In large part, the Federal Rules of Evidence remain substantively unchanged from the first Proposed Draft submitted in 1969. The numbering scheme has changed slightly. Where the original Proposed Draft has rules 1-03 and 1-04, we have 103 and 104. Small changes have also been made in the last 35 years to the wording of various rules.

Although most of the differences between the proposed draft and the current Federal Rules of Evidence are aesthetic, some are not. There are several rules in the proposed draft that did not make their way into today’s Federal Rules of Evidence. Of course, Rule 502 and its recent amendments were not in the proposed draft. However, the proposed draft did provide for privileges that are not specifically laid out in today’s Federal Rules. While the current Rule 501 points to the common law for a discussion of various privileges, the proposed draft enumerated these privileges and exceptions. Proposed draft Rule 5-04 allowed for a psychotherapist-patient privilege. The privilege could be claimed by the patient, the patient’s guardian, or the representative of a deceased patient. However, the privilege did not apply “as to communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense . . .”

The proposed draft also included Rules 5-05 and 5-06. Rule 5-05 created a husband-wife privilege. The privilege was simple. It provided that “[a]n accused in a criminal proceeding has a privilege to prevent his spouse from testifying against him.”[9] However, the privilege also allowed several exceptions. It did not cover events that happened before the marriage. Nor did the privilege apply in proceedings where one spouse is charged with a crime committed against the other. Rule 5-06 made all confidential communications to a clergyman privileged.

Rule 5-10 allowed the government in a criminal case to “refuse to disclose the identity of a person who has furnished to a law enforcement officer information purporting to reveal the commission of a crime.”[10] However, if the identity of the witness was disclosed by the government, then the informant’s identity was fair game. Where there was a reasonable probability that the informant could give testimony necessary to a fair determination of guilt or innocence, the judge could dismiss the proceedings.

These specific rules on privilege were not the only rules to fall by the wayside. Pursuant to proposed draft rule 1-05, the trial judge was permitted to “sum up the evidence and comment to the jury upon the weight of the evidence and the credibility of the witnesses.”[11] It should be noted that these were not jury instructions explaining the law of the land. They were the personal opinions of the trial judge. Of course, the judge had to instruct the jury that “they are to determine for themselves the weight of the evidence and the credit to be given to the witnesses and that they are not bound by the judge’s summation or comment.” Nonetheless, this undoubtedly influenced the jury on most occasions. It is pretty easy to see why this rule does not exist anymore.

Some modern rules existed in the proposed draft, yet differed substantively. For example, Rule 403 gives the trial judge discretion to exclude evidence where the probative value is substantially outweighed by the danger of unfair prejudice. In the proposed draft, that evidence had to be excluded. The other possibilities for exclusion under Rule 403 were discretionary even under the proposed draft.

Noticeably absent from the proposed draft are Rules 412, 413, 414, and 415. These rules dealing with sex offense cases, sex assault cases, and child molestation cases weren’t enacted until after the initial adoption of the Federal Rules of Evidence. Rule 412 was added in 1978, and the others were added in 1994. Also missing from the proposed draft is Rule 807, the residual exception to the hearsay rule. This is because in the proposed draft, Rule 807 was the default rule. While the current hearsay exceptions under 803 and 804 existed in 8-03 and 8-04, they were merely illustrations and not limitations on the possible hearsay exceptions. In both 8-03 and 8-04, the rules provided that a statement “is not excluded by the hearsay rule if its nature and the special circumstances under which it was made offer assurances of accuracy not likely to be enhanced by calling the declarant as a witness. . . .”[12]

Looking Forward
The Federal Rules of Evidence didn’t stop changing after 1975. Amendments in the form of new rules, and changes in wording and meaning have all taken place over the last 35 years. Now, the Judicial Conference of the United States’ Committee on Rules of Practice and Procedure has undertaken a restyling of the Rules of Evidence. The goal of the project is to simplify and clarify the rules. The restyling was in the comment phase, which ended on February 16, 2010.

The last 35 years have seen a lot of change in evidence law. Those changes occur with amendments to the actual rules, as well as formative case law from courts around the country. The next 35 years will undoubtedly see even more changes as the legal practice becomes increasingly digital and reliant on technology.

Keywords: Litigation, Federal Rules of Evidence, history, Advisory Committee on Rules of Evidence, Committee on Rules of Practice and Procedure, trial evidence

Josh Camson is a third-year law student at the University of Pittsburgh School of Law, where he focuses his study on trial litigation.

This article appears in the Spring 2010 issue of Proof, from the Trial Evidence Committee.



  1. Judicial Conference of the United States’ Committee on Rules of Practice and Procedure, Rules of Evidence; A Preliminary Report on the Advisability and Feasibility of Developing Uniform Rules of Evidence for the U.S. District Courts 1 (1962) quoting Proceedings of Cleveland Institute on Federal Rules 186 (1938).
  2. Id. at VI.
  3. Id. at 25.
  4. Id. at 17.
  5. Ladd, A Modern Code of Evidence, 27 Iowa L. Rev. 213, 214, 218 (1942).
  6. Edmund Morgan, Practical Difficulties Impeding Reforms in the Law of Evidence, 14 Vand. L. Rev. 725 (1961).
  7. 46 F.R.D. 161 at 177 (1969).
  8. 191 F.R.D. 678 at 9 (2000).
  9. Id. at 263.
  10. Id. at 276.
  11. Id. at 191–92.
  12. Id. at 345.


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