The Proposed Federal Rules of Evidence: Of Privileges and the Division of Rule-Making Power

This Note proposes that the lower federal courts accord the same binding authority to the Proposed Rules that they give those judicially promulgated procedural rules, such as the Federal Rules of Civil Procedure, that have been implicitly approved by Congress.

Part I of the Note analyzes the constitutional division of the rule-making power by examining both the policy considerations involved and the relevant constitutional language and doctrines. That examination indicates that the power to establish such rules is shared by Congress and the Supreme Court. To determine when that power is appropriately exercised by one branch rather than the other, the Note turns to an analogous area of shared power, the power to define the jurisdiction of the federal courts. This analogy suggests that a “primarily adjudicative” test should be consulted to allocate rule-making power between the two branches. Part I concludes by demonstrating that this test best explains the history of federal judicial rule-making.

Part II explores the development of the federal law of evidence. The early stages of that development suggest the propriety of using the “primarily adjudicative” test for the specific area of evidence rules. That test is then applied through an analysis of the intent behind the congressional treatment of the Proposed Rules, and it is concluded that the Proposed Rules are binding on the lower courts.

Part III surveys the present confused state of federal rules of privilege and argues that they must be uniform if they are to be effective. Only by heeding the “primarily adjudicative” test and treating the Proposed Rules as binding authority can the present disuniformity be ended and the rules be rescued from uselessness.