Just before Thanksgiving the Texas Supreme Court adopted revised rules of evidence (accessible here). But no fear, the revisions are almost entirely stylistic. Only two rules received substantive amendments (discussed shortly).
The stylistic overhaul is the culmination of a several-year process intended to bring the Texas evidence rules in line with the Federal Rules of Evidence, which were revised in 2011. The Garnerization of the evidence rules is intended to make the them more accessible and easier to navigate. For instance, the revisions remove the dusty and sometimes vague "shall" in place of "must," "may," or "should." They also reduce inconsistent use of oft-repeated concepts that mean that same thing–"opposing party" and "party opponent" both existed; now only "opposing party" is used. Another example: the rules on opinion testimony, 701-706, used to refer to "opinions or inferences." The revised rules drop "inferences" because this, as the notes state, "makes the Rule flow better and easier to read, and because "inference" is covered by the broader term 'opinion'." The comment is quick to point out the courts have not made any substantive distinctions between "inferences" and "opinions" in relation to these rules.
Although there are these types of changes, the majority of the revisions involve formatting—adding white space between the separate subsections of the individual rule to increase readability. Fortunately, the rule numbers have not changed, though subdivisions within some rules have been rearranged or expanded for clarity's sake.
But some of the revisions may be jarring at first. The hearsay rule, 801, no longer calls it an "admission of a party opponent." Now it is "an opposing party's statement." As the restyling comments explain, "admission" could be confused with its colloquial use, when nothing really has to be "admitted" to fall under this hearsay exception. "Statement" provides more clarity and less chance for confusion. It may take some getting used to, but this change, along with most of the others, makes sense.
As mentioned above, the only (intended) substantive changes are to Rules 511 and 613.
Rule 511, which address waiver of privilege by voluntary disclosure, has been amended to bring the Texas rules on voluntary disclosure into line with the federal rules, even incorporating parts of Federal Rule of Evidence 502.
The other substantive change comes to Rule 613, which governs a witness's prior inconsistent statement or bias or interest. The revision leaves intact the requirement that a witness be given a chance to explain or deny his or her inconsistent statement or bias, but no longer requires that the examining attorney lay this foundation in order to introduce extrinsic evidence of the statement or circumstances showing bias or interest.
Overall, the revisions should help increase the readability and flow of the rules, which should increase understanding and application (emphasis on should). But take a look and see for yourself. The Rules Committee is still taking comments on the revisions until February 28 (send comments to Rules Attorney Martha Newton at rulescomments@txcourts.gov). The final version of the Rules will go into effect on April 1, 2015. Look for a follow up on any changes from this version and final version.
Let's just hope the nonsubstantive stylistic changes don't end up having any unintended consequences.
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