Interpreting the Federal Rules of Evidence: The Use and Abuse of the Advisory Committee Notes

Eileen A. Scallen, William Mitchell College of Law


The Federal Rules of Evidence (Rules) are just two decades old. The Rules were drafted with the goal of promoting predictability and uniformity in the admission of evidence in the federal courts. At the same time, the drafters wished to leave some flexibility and discretion in the administration of the Rules, rejecting the possibility that they could draft a code that anticipated every possible evidence problem that might arise. The by-product of codification, however, is the problem of interpretation. The United States Supreme Court and several commentators have struggled recently with the following question: How do we determine what the Rules mean when applying them to concrete cases? While I have addressed that question in a comprehensive manner elsewhere, this Essay focuses on an essential piece of the puzzle -- the role of the Advisory Committee Notes in interpreting the Federal Rules of Evidence.