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Article
It’s a Code: Amending the Federal Rules of Evidence to Achieve Uniform Results
Jessica Berch and Daniel J. Capra
58 Wake Forest Law Review 549 (2023)
 
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Abstract:

This Article identifies, explores, and attempts to resolve nine conflicts that have arisen in the federal courts regarding the proper interpretation and scope of the Federal Rules of Evidence. For each conflict, we set forth the language of the current rule, its policy goals, and the differing positions taken by the courts. We then analyze the merits of the debate and propose new rule language to resolve the matter.

In this Article, we consider whether theft-based convictions are automatically admissible under Rule 609(a)(2), and how to calculate the passage of ten years for old convictions under Rule 609(b). We chart the hazy line between lay and expert opinion testimony under Rules 701 and 702 to determine whether, for example, a law enforcement officer's opinion about things like code words qualifies as expert or lay opinion. We discuss two debates arising from Rule 801(d)(2): first, whether an expert's statements are attributable to the party that retained the expert, and second, whether statements by government officials are statements by a government party, particularly in criminal cases. We tackle whether Rule 803(3) permits statements about a declarant's state of mind to prove another person's actions, and the foundation necessary under Rule 803(4) to admit statements by children regarding child abuse. We end the Article by analyzing the meaning of “predecessor in interest” for purposes of Rule 804(b)(1), and also whether exculpatory grand jury testimony is admissible against the government under that same rule.
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