Miss. R. Evid. 101
Miss. R. Evid. 101
Comment
The language of Rule 101 has been amended, and definitions have been added, as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. Rule 101(b)(3)-(4) expands the meaning of 'record,' a term used frequently in Articles VIII-X. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
The Style Project
The Rules of Evidence are the first set of Mississippi procedural rules to be restyled. They are based on the restyled Federal Rules of Evidence, which took effect in 2011, and which followed restyling of the Federal Rules of Civil Procedure in 2007, the Federal Rules of Criminal Procedure in 2002, and the Federal Rules of Appellate Procedure in 1998.
1. General Guidelines
In addition to following the restyled Federal Rules of Evidence, guidance in drafting, usage, and style was provided by Bryan Garner, Guidelines for Drafting and Editing Court Rules, Administrative Office of the United States Courts (1996) and Bryan Garner, Dictionary of Modern Legal Usage (2d ed. 1995). See also Joseph Kimble, Guiding Principles for Restyling the Civil Rules, in Preliminary Draft of Proposed Style Revision of the Federal Rules of Civil Procedure, at page x (Feb. 2005)
(http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Prelim_draft_proposed_pt1.pdf); Joseph Kimble, Lessons in Drafting from the New Federal Rules of Civil Procedure, 12 Scribes J. Legal Writing 25 (2008-2009). For specific commentary on the Evidence restyling project, see Joseph Kimble, A Drafting Example from the Proposed New Federal Rules of Evidence, 88 Mich. B.J. 52 (Aug. 2009); 88 Mich. B.J. 46 (Sept. 2009); 88 Mich. B.J. 54 (Oct. 2009); 88 Mich. B.J. 50 (Nov. 2009).
2. Formatting Changes
Many changes result from using format to achieve clearer presentations. The rules are broken down into constituent parts, using progressively indented subparagraphs with headings and substituting vertical for horizontal lists. "Hanging indents" are used throughout. These formatting changes make the structure of the rules graphic and make the restyled rules easier to read and understand even when the words remain unchanged. Rules 103, 404(b), 606(b), and 612 illustrate the benefits of formatting changes.
Structural divisions within a rule are identified using standard terms and cascading indents, illustrated by the following:
(a) the first level is a lettered subdivision (e.g. "subdivision (a)"); (1) followed by a numbered paragraph (e.g. "paragraph (a)(1)"); (A) then a subparagraph, identified by a capital letter (e.g. "subparagraph (a)(1)(A)"); and (i) concluding with an item, identified by a romanette (e.g. "item (a)(1)(A)(i)").
Bullet points are employed within a rule to set out a list of roughly equal, parallel elements.
While the structural divisions within a rule generally follow this standard pattern throughout, a few exceptions were warranted. Lower-case lettered subdivisions were not used in Rules 803 and 902. Rather, those Rules retained numbered paragraphs as first-level formatting because changing their structure would disrupt electronic search results and thus impose transaction costs that outweigh any benefit in strictly consistent formatting.
3. Changes to Reduce Inconsistent, Ambiguous, Redundant, Repetitive, or Archaic Words
The restyled rules reduce the use of inconsistent terms that say the same thing in different ways. Because different words are presumed to have different meanings, such inconsistencies can result in confusion. The restyled rules reduce inconsistencies by using the same words to express the same meaning. For example, consistent expression is achieved by not switching between "accused" and "defendant" or between "party opponent" and "opposing party" or between the various formulations of civil and criminal action/case/proceeding.
The restyled rules minimize the use of inherently ambiguous words. For example, the word "shall" can mean "must," "may," or something else, depending on context. The potential for confusion is exacerbated by the fact the word "shall" is no longer generally used in spoken or clearly written English. The restyled rules replace "shall" with "must," "may," or "should," depending on which one the context and established interpretation make correct in each rule. The restyled rules minimize the use of redundant "intensifiers." These are expressions that attempt to add emphasis, but instead state the obvious and create negative implications for other rules. The absence of intensifiers in the restyled rules does not change their substantive meaning. See, e.g., Rule 104(c) (omitting "in all cases"); Rule 602 (omitting "but need not"); Rule 611(b) (omitting "in the exercise of discretion").
The restyled rules also remove words and concepts that are outdated or redundant.
4. Rule Numbers
The restyled rules keep the same numbers to minimize the effect on research. Subdivisions have been rearranged within some rules, and created within others, to achieve greater clarity and simplicity.
5. No Substantive Change
Special efforts were made to reject any purported style improvement that might result in a substantive change in the application of a rule. A change was considered "substantive" if any of the following conditions were met:
(a) Under current practice, the change could lead to a different result on a question of admissibility (e.g., a change that requires a court to provide either a less or more stringent standard in evaluating the admissibility of particular evidence);
(b) Under current practice, it could lead to a change in the procedure by which an admissibility decision is made (e.g., a change in the time in which an objection must be made, or a change in whether a court must hold a hearing on an admissibility question);
(c) The change would restructure a rule in a way that would alter the approach that courts and litigants have used to think about, and argue about, questions of admissibility (e.g. merging Rules 104(a) and 104(b) into a single subdivision); or
(d) The amendment would change a "sacred phrase" - one that has become so familiar in practice that to alter it would be unduly disruptive to practice and expectations. Examples include "unfair prejudice" and "truth of the matter asserted."
This rule requires that The Mississippi Rules of Evidence be applicable both in civil and criminal cases. Rule 1101 delineates more specifically what judicial proceedings are exempted from the rules' coverage.
["Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling.]
.