Sweet Caroline: The Backslide from Federal Rule of Evidence 613(b) to the Rule in Queen Caroline’s Case

Since 1975, Rule 613(b) of the Federal Rules of Evidence has governed the admission of extrinsic evidence of a prior inconsistent statement in federal court. Rule 613(b) requires the proponent of the prior inconsistent statement to provide the declarant an opportunity to explain or deny it. There is no requirement that the proponent provide that opportunity at any particular time or in any particular sequence. Rule 613 reflected a change from the common law that had fallen out of fashion in the federal courts. That common law rule, known as the Rule in Queen Caroline’s Case, required the proponent of a prior inconsistent statement to confront the declarant witness with the statement on cross-examination before introducing any extrinsic evidence of the prior statement. For a variety of reasons, the Advisory Committee reasoned that the Rule in Queen Caroline’s Case constituted an unnecessary encumbrance on cross-examination. Despite the plain meaning of Rule 613(b), and the clear explanation in the Advisory Committee’s Note, a number of federal courts have continued to apply the common law Rule in Queen Caroline’s Case, citing assorted rationales for doing so. Their actions have caught the attention of the Advisory Committee on Evidence Rules, which has entertained the idea of amending Rule 613(b) to reflect the common law Rule in Queen Caroline’s Case. All things considered, amending Rule 613(b) to adopt the common law of thirty-five years ago is unwise. The English history behind the Rule in Queen Caroline’s Case undermines its credibility. Furthermore, Rule 613(b) accomplishes nearly all of the legitimate policy goals of that common law rule while providing for more effective cross-examination. While there does exist a split among United States courts of appeals, most circuit courts apply Rule 613(b) as intended, and only a minority of circuit courts apply the superseded Rule in Queen Caroline’s Case. Rather than amend Rule 613(b) to return to the common law Rule in Queen Caroline’s Case, the Advisory Committee should consider amending the Rule to make uniform the application of the Rule as originally intended. At the very least, the Advisory Committee should not amend Rule 613(b) to return Queen Caroline to her throne.