Under the Rules Enabling Act, 28 U.S.C. §§ 2071–77, amendments to the Federal Rules of Procedure and Evidence are initially considered by the respective advisory committees, who draft the rules, circulate them for public comment, and forward the rules for approval to the Judicial Conference’s Standing Committee on the Rules. If the rules are approved by the Judicial Conference of the United States, they are forwarded to the Supreme Court of the United States, which reviews the rules, makes any appropriate changes, and in turn forwards them to Congress. If Congress makes no further changes to the rules, they become effective on December 1. That process—from initial drafting by the advisory committee to effective date—typically takes three years. In August 2018, the Standing Committee approved the publication of proposed amendments to Federal Rules of Appellate Procedure 35 and 40 and to Federal Rule of Evidence 404. The public comment period for those proposals closes on February 15, 2019. The text of the proposed amendments is available at http://www.uscourts.gov/rules-policies/proposed-amendments-published-public-comment. Members of the public also may submit their comments on those proposed amendments at the same link.
Federal Rules Update
Federal Rules Published for Public Comment
By David A. Schlueter
Federal Rule of Appellate Procedure 35. En Banc Determination. Federal Rule of Appellate Procedure 35 addresses procedures for requesting an en banc decision by the court. Rule 35(b) provides that a party may petition for a hearing or rehearing en banc and Rule 35(b)(2) establishes limits on the length of the petition. If the petition is computer generated, it must not exceed 3,900 words, and if the petition is handwritten, it must not exceed 15 pages. The court may grant exceptions to those limits. Rule 35 is silent, however, on limiting the length of any responses to the petition. The proposed amendment to Rule 35(e) would make it clear that the limits applied to a petition, in Rule 35(b)(2), also would apply to the response.
Federal Rule of Appellate Procedure 40. Petition for Panel Rehearing. Federal Rule of Appellate Procedure 40 addresses the procedures for requesting a panel rehearing. Rule 40(b) establishes the length of petitions for the rehearing at 3,900 words if they are produced on a computer, and if they are handwritten, the petitions may not exceed 15 pages. Currently, there are no stated limits for any answer filed in the case. The proposed amendments would remedy that issue by stating in Rule 40(a)(3) that any answer to the petition must not exceed the limits set for the petition. The proposed amendments also conform Rule 40 to Rule 35 and change the term “answer” in Rule 40(a)(3) to the term “response.” The committee note accompanying the proposed changes states that that change is intended to be “stylist only.”
Federal Rule of Evidence 404. Evidence of Crimes, Wrongs, or Other Acts. Federal Rule of Evidence 404 addresses the admissibility of character evidence. In particular, Rule 404(b)(1) provides that evidence of other crimes, wrongs, or acts is not admissible to show a person’s propensity. Rule 404(b)(2) provides, however, that such evidence may be admissible for non-propensity reasons, some of which are listed in the rule. In addition, Rule 404(b)(2) contains a notice provision for criminal cases. On request by the defense, the prosecutor must provide reasonable notice to the defense of the general nature of the evidence that it intends to offer at trial. The notice must be given before trial, or during trial, if the court for good cause excuses pretrial notice.
The proposed amendments to Rule 404(b) make several significant changes in the notice provision. First, the pretrial notice provision would be changed to require the prosecution to identify the non-propensity purpose it intended to rely on at trial. For example, if the prosecution intended to offer a defendant’s extrinsic acts to show motive, the prosecution would need to state that in the notice. Second, the rule would be amended to require that the notice be in writing, which could be satisfied if it was in electronic form. Third, the notice would have to be given “sufficiently ahead of trial to give the defendant a fair opportunity to meet the evidence.” Such notice would give the defendant time to review the evidence and prepare any objections or motions. The amendments do not make any changes to the good cause exception to the notice requirements; but the committee note states that the good cause requirement would apply also to the requirement that the prosecution state the intended purpose of the evidence because an additional, admissible purpose may not become apparent until just before trial or during trial. And fourth, the proposed amendments remove the requirement that the defense file a request for the notice. The committee note accompanying the proposed amendments states that no other rule of evidence includes that requirement and that many courts have local rules that require the prosecution to provide the notice, even in the absence of a defense request. The committee note concludes by observing that the requirement that the defense request the prosecution to provide notice has “outlived its usefulness.”
Finally, the proposed amendments change the title of Rule 404. The proposed title would read: “Character Evidence; Other Crimes, Wrongs, or Acts.” And the title of Rule 404(b)(1) would read, “Other Crimes, Wrongs, or Acts.” The amendment moves the word “other” to the position it had before the 2011 style amendments to the Rules. The change is intended to make clear that Rule 404(b) applies to crimes, wrongs, or acts, other than those charged in the case. The committee note states that the amendment is not intended to make any substantive change.