'Importing' Restrictions from One Federal Rule of Evidence Provision to Another: The Limits of Legitimate Contextual Interpretation in the Age of Statutes

Abstract

In 1975, the Federal Rules of Evidence took effect. The basic policy thrust of the Rules was to simplify and liberalize the law of Evidence in federal court. In particular, as the Supreme Court has acknowledged, Federal Rule 402 was intended to deprive the courts of the power to either enforce or enunciate uncodified exclusionary rules. Yet, as Part I of this article demonstrates, in several lines of authority federal courts have relied on contextual interpretation to impose evidentiary restrictions that have no grounding in statutory text. The common fact pattern in these lines of authority is the following: One provision of the Federal Rules contains a restriction, a second provision is silent on the restriction, and the text of neither provision manifests a legislative intent to import the restriction from the first provision into the second. The question naturally arises as to what are the legitimate uses and limits of contextual construction. As Part II explains, the enactment of the Federal Rules roughly coincided with the emergence of the textualist school of statutory interpretation. For formal and practical reasons, textualists assert the primacy of text and caution against uncritical reliance on extrinsic legislative history material. Unlike extrinsic material, legislative text has the formal status of law; and extrinsic history materials are vulnerable to distortion from the influence of special interest groups. The diminished importance of extrinsic history has enhanced the importance of contextual arguments, that is, arguments based on other provisions in the same legislative scheme. After all, like the text being construed, the contextual provisions have the formal force of law. The question of contextual interpretation is not limited to the setting of the Federal Rules of Evidence. More broadly, it affects the construction of all legislation in the Age of Statutes. Part II uses the Federal Rule as a microcosm for exploring the concept of contextual interpretation. On the one hand, Part II identifies several perfectly legitimate uses of contextual interpretation. To begin with, the wording of one provision may be used to eliminate an ambiguity in the wording of a second provision. By way of example, the court may look to the character evidence prohibition codified in Rules 404-45 to inform the meaning of “unfair prejudice” in Rule 403. Moreover, a blanket prohibition on the admission of a certain type of evidence in one provision may necessitate a narrowing construction of another provision that would otherwise permit the introduction of that very type of evidence. Hence, the prohibition of the introduction of evidence of nolo contendere pleas in Rule 410 can require a limiting construction of Rule 801(d)(2)(A) on statements or admissions of a party-opponent. However, when neither of those uses of context is in play, with one exception a court may not simply import a restriction from one provision of the Federal Rules into another. Doing so exceeds the interpretive power of context. Subpart II.B proposes that the importation is justifiable only in the exceptional situation in which the extrinsic legislative history contains an extraordinarily powerful showing of a broad legislative intent to bar the admission of a particular type of evidence, not a narrower intent to prescribe a restriction in one provision of the Federal Rules. Part III uses the standard proposed in subpart II.B to critically evaluate the three lines of authority discussed in Part I. Part III concludes that two of the three lines are flawed; one does not manifest the right type of intent, and the second relies on extrinsic history that is too mixed and conflicted to qualify as an extraordinarily powerful showing of intent. Only one line of authority is based on extrinsic history that includes compelling evidence of an intent to prevent the admission of a certain type of evidence under any theory. Hopefully, this article will not only prevent misreadings of the Federal Rules but also contribute to the larger debate over the proper role of contextual interpretation in the Age of Statutes.