Rule 101. Scope; Definitions

(a) Scope. These rules apply to proceedings in Mississippi courts. The specific

courts and proceedings to which the rules apply, along with exceptions, are set out

in Rule 1101.

(b) Definitions. In these rules:

(1) “civil case” means a civil action or proceeding;

(2) “criminal case” includes a criminal proceeding;

(3) “record” includes a memorandum, report, or data compilation; and

(4) a reference to any kind of written material or any other medium includes

electronically stored information.

Advisory Committee Historical Note

Effective July 1, 2016, the Rule was amended as part of the general

restyling of the Evidence Rules.

Effective June 16, 2016, the “Comment” was retitled “Advisory Committee

Note.”

Advisory Committee Note

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

he 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.

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.

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:

e 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.]