MRE Comments are Gone

June 20, 2016 § Leave a comment

Replaced by “Advisory Committee Notes” per an order of the MSSC on June 16, 2016.

The order states:

After due consideration, we find that the comments should not represent the “Official Comments of the Court” or serve as “authoritative guides” for interpreting the Mississippi Rules of Evidence. Instead, we find that the comments should be renamed Advisory Committee Notes and represent commentary from the Advisory Committee on Rules, whose members represent the bench, bar, and the law schools of this state.

I think what the court is concerned about is that some people cite the Comments as authority on a par with the rules themselves, when what they were originally intended to be was only guide to understanding with the authority of the court behind them. Meaning that one could rely upon them as a reliable guide to understanding the rules consistent with the court’s understanding.

By making them Advisory Committee Notes, the court removes the force of authority, and casts them more in the light of secondary authority, like a hornbook or scholarly article: persuasive, but not binding on the court.

So what does this mean for most practitioners. As a practical matter, nothing significant. You will still be able to rely on the Notes as a guide to understanding, but you will likely find when you cite them as authority that they carry much less weight than the comments did.

 

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