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Case Law Divergence from the Federal Rules of Evidence

Daniel J. Capra
October 3, 2000
In Print: Available for Distribution

This report is an effort to increase the awareness of counsel practicing in federal courts, as well as judges, about the possibility that case law has diverged from the text of some of the Federal Rules of Evidence. At the request of the Judicial Conference Advisory Committee on the Rules of Evidence, Professor Daniel Capra, committee reporter, highlights the major instances in which case law has diverged from an applicable Rule. This divergence comes in two forms: (1) where the case law (defined as case law in at least one circuit) is flatly inconsistent with the text of the Rule, the Committee Note explaining the text, or both; and (2) where the case law has provided significant development on a point that is not addressed by either the text of the Rule or the Committee Note.

This report is reprinted at 197 Federal Rules Decisions 531 (2001).