Rule Impacts Report

Evidence

 RULE  AFFECTS  SUMMARY AND IMPACT

Arizona Rules of Evidence Rule 17.4(f), Arizona Rules of Criminal Procedure
 
R-10-0035

AOC Contact: Mark Meltzer

 

Court of Appeals
Superior Court
Justice Court
Municipal Court

Judges

Summary: These rule changes were initiated by the Ad Hoc Committee on the Rules of Evidence, which was established by Administrative Order 2010-42 and was chaired by Vice Chief Justice Hurwitz. The AO directed the committee to compare the Arizona Rules of Evidence with the Federal Rules of Evidence, to identify differences between the two sets of rules, and to provide input regarding conforming changes.

A “Prefatory Comment” to the amended Arizona Rules of Evidence notes that there are three different kinds of rule changes:
  1. “Restyling” changes, where the rules have been made to correspond to the federal rules, and which were not meant to change the admissibility of evidence. “Restyling” is intended to make rules more easily understood, and to make style and terminology consistent throughout the rule and with the restyled federal rules.
  2. Amendments to the Arizona rules to “conform” them to the federal rules, which may alter the way evidence is admitted.

    The Court has adopted conforming changes to Rule 103 (Rulings on Evidence); Rule 201 (Judicial Notice); Rule 301 (Presumptions); Rule 407 (Subsequent Remedial Measures); Rule 410 (Plea Discussions); Rules 412-415; Rule 606 (Juror’s Competency as a Witness); Rule 608 (Character Evidence); Rule 609 (Impeachment by Criminal Conviction); Rule 611 (Mode of Presenting Evidence); Rule 615 (Excluding Witnesses); Rule 701 (Opinion Testimony by Lay Witnesses); Rule 702 (Testimony by Expert Witnesses); Rule 706 (Court Appointed Experts); Rule 801(d)(2) (Definitions That Apply to This Article; Exclusions from Hearsay); Rule 803(6)(A), (6)(D) and (24) (Hearsay Exceptions Regardless of Unavailability); Rule 804 (b)(1), (b)(3) and (b)(7) (Hearsay Exceptions When Declarant Unavailable); and Rule 807 (Residual Exception).
  3. Some instances where the Arizona rules either retain language that is distinct from the federal rules (e.g., Rule 404) or that deliberately depart from the language of the federal rules (e.g., Rule 412).

Impact:
Conforming changes that are not merely restyling, as well as deliberate departures from the language of the federal rules, are noted at the outset of comments to particular Arizona rules.

Rule 702, Testimony by Expert Witnesses, is among the conforming changes. While the corresponding Federal Rule 702 has been adopted, the comment to the Arizona rule notes that “the trial court’s gatekeeping function is not intended to replace the adversary system.”

Rule 17.4(f) of the Rules of Criminal Procedure has also been amended by this Order. Under the former rule, neither the plea discussion nor statements made at a hearing on the plea are admissible. Under the amended rule, Rule 410 of the Rules of Evidence governs the admissibility of these items. Rule 410 provides in part that these items may be admissible in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.