on writ of certiorari to the united states court of appeals for the
tenth circuit
[January 10, 1995]
Justice Scalia
, concurring in part and concurring in I have previously acquiesced in,
see, e.g., Beech Aircraft Corp. v. Rainey, 488
U.S. 153 (1988), and indeed myself engaged in, see United States
v. Owens, 484
U.S. 554, 562 (1988), similar use of the Advisory Committee Notes.
More mature consideration has persuaded me that is wrong. Having been prepared
by a body of experts, the Notes are assuredly persuasive scholarly commentaries--ordinarily
the most persuasive--concerning the meaning of the Rules. But they
bear no special authoritativeness as the work of the draftsmen, any more
than the views of Alexander Hamilton (a draftsman) bear more authority
than the views of Thomas Jefferson (not a draftsman) with regard to the
meaning of the Constitution. It is the words of the Rules that have been
authoritatively adopted--by this Court, or by Congress if it makes a statutory
change. See 28
U.S.C. §§ 2072 2074 (1988 ed. and Supp. IV). In my view even
the adopting Justices' thoughts, unpromulgated as Rules, have no authoritative
(as opposed to persuasive) effect, any more than their thoughts regarding
an opinion (reflected in exchanges of memoranda before the opinion issues)
authoritatively demonstrate the meaning of that opinion. And the same for
the thoughts of congressional draftsmen who prepare statutory amendments
to the Rules. Like a judicial opinion and like a statute, the promulgated
Rule says what it says, regardless of the intent of its drafters. The Notes
are, to be sure, submitted to us and to the Members of Congress as the
thoughts of the body initiating the recommendations, see §2073(d);
but there is no certainty that either we or they read those thoughts, nor
is there any procedure by which we formally endorse or disclaim them. That
being so, the Notes cannot, by some power inherent in the draftsmen, change
the meaning that the Rules would otherwise bear.
In the present case, the merely persuasive force of the Advisory
Committee Notes suffices. Indeed, in my view the case can be adequately
resolved without resort to the Advisory Committee at all. It is well established
that " ` "the body of common law knowledge" ' " must be " ` "a source of
guidance" ' " in our interpretation of the Rules. Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U. S. __, __ (1993) (slip op., at 7)
(quoting United States v. Abel, 469
U.S. 45, 52 (1984) (quoting Cleary, Preliminary Notes on Reading the
Rules of Evidence, 57 Neb. L. Rev. 908, 915 (1978))). Rule 801(d)(1)(B)
uses language that tracks common law cases and prescribes a result that
makes no sense except on the assumption that that language indeed adopts
the common law rule. As the Court's opinion points out, only the premotive
statement limitation makes it rational to admit a prior corroborating statement
to rebut a charge of recent fabrication or improper motive, but not to
rebut a charge that the witness' memory is playing tricks.
