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SWEET CAROLINE: THE BACKSLIDE FROM FEDERAL RULEOF EVIDENCE 613(b) TO THE RULE INQUEEN CAROLINES CASE
Katharine T. Schaffzin*
Since 1975, Rule 613(b) of the Federal Rules of Evidence has governed the admis-sion of extrinsic evidence of a prior inconsistent statement in federal court. Rule613(b) requires the proponent of the prior inconsistent statement to provide thedeclarant an opportunity to explain or deny it. There is no requirement that theproponent provide that opportunity at any particular time or in any particularsequence.
Rule 613 reflected a change from the common law that had fallen out of fashion inthe federal courts. That common law rule, known as the Rule in Queen CarolinesCase, required the proponent of a prior inconsistent statement to confront the de-clarant witness with the statement on cross-examination before introducing anyextrinsic evidence of the prior statement. For a variety of reasons, the AdvisoryCommittee reasoned that the Rule in Queen Carolines Case constituted an unnec-essary encumbrance on cross-examination.
Despite the plain meaning of Rule 613(b), and the clear explanation in the Advi-sory Committees Note, a number of federal courts have continued to apply thecommon law Rule in Queen Carolines Case, citing assorted rationales for doingso. Their actions have caught the attention of the Advisory Committee on EvidenceRules, which has entertained the idea of amending Rule 613(b) to reflect the com-mon law Rule in Queen Carolines 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 CarolinesCase undermines its credibility. Furthermore, Rule 613(b) accomplishes nearly allof the legitimate policy goals of that common law rule while providing for moreeffective cross-examination. While there does exist a split among United Statescourts of appeals, most circuit courts apply Rule 613(b) as intended, and only aminority of circuit courts apply the superseded Rule in Queen Carolines Case.Rather than amend Rule 613(b) to return to the common law Rule in QueenCarolines Case, the Advisory Committee should consider amending the Rule tomake uniform the application of the Rule as originally intended. At the very least,
* Associate Professor at the University of Memphis Cecil C. Humphreys School of Lawwhere I teach Evidence, Trial Advocacy, and Civil Procedure. I would like to thank the hardwork of the Advisory Committee on Evidence Rules, especially its reporter, Daniel J. Capra,for working tirelessly to find ways to improve the Federal Rules of Evidence. Additionally, Ithank the faculty of the University of Tennessee College of Law for welcoming me to speakon this subject and offering its critical commentary, which helped shape the direction of thepiece. I am grateful to Whitney Goode and Rachel Cade for their excellent researchassistance.
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284 University of Michigan Journal of Law Reform [VOL. 47:2
the Advisory Committee should not amend Rule 613(b) to return Queen Carolineto her throne.
INTRODUCTION
Where it began,I cant begin to knowinBut then I know its growing strong. . . .Sweet Caroline,Good times never seemed so good. . . .
Neil Diamond 1
To courts pining for a common law rule lost in federal practicesince before Congress enacted the Federal Rules of Evidence,[g]ood times never seemed so good as when they could freelyapply the Rule in Queen Carolines Case. Rule 613(b) of the Fed-eral Rules of Evidence, however, intentionally superseded thatcommon law rule.2 For more than thirty years, the solution of aminority of such nostalgic courts has been to apply the common lawrule despite the plain meaning of Rule 613(b).3 The refusal of thesecourts to recognize that the Rule in Queen Carolines Case is nolonger sound federal law has led the Advisory Committee on Evi-dence Rules to reconsider if the drafters should have just codifiedthe common law rule in the first place.4 However, for the manyreasons explained below, that would be a mistake.
Since 1975, Rule 613(b) of the Federal Rules of Evidence hasgoverned the admission of extrinsic evidence of a prior inconsistentstatement in federal court.5 The easiest way to define extrinsic evi-dence of a prior inconsistent statement is to start with a descriptionof what it is not. When a cross-examiner questions a declarant wit-ness directly about the witnesss own prior statement, extrinsicevidence is not involved.6 For example, a cross-examiner asks a wit-ness, Didnt you tell the responding officer that your assailant wasbetween 58 and 60? Such questions are permitted as direct evi-dence of a prior inconsistent statement without limitation under
1. NEIL DIAMOND, Sweet Caroline, on SWEET CAROLINE (UNI Records 1969).2. See infra Part II.3. See infra note 157. R4. See ADVISORY COMM. ON RULES OF EVIDENCE, AGENDA BOOK 23839 (April 3, 2012),
available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Agenda%20Books/Evidence/EV2012-04.pdf.
5. FED. R. EVID. 613(b).6. See ROGER PARK & TOM LININGER, THE NEW WIGMORE: A TREATISE ON EVIDENCE: IM-
PEACHMENT AND REHABILITATION 5.6 (2012).

WINTER 2014] Sweet Caroline 285
Rule 613(a).7 When the cross-examiner moves beyond questioningthe declarant witness about the prior statement to proving the state-ment with documentary evidence or calling another witness torecount the declarant witnesss prior statement, extrinsic evidenceexists and triggers Rule 613(b).8 For example, the testimony of theresponding officer that the witness had in fact told him that theassailant was between 58 and 60 is extrinsic evidence of the priorstatement.
Rule 613(b) requires the proponent of the prior inconsistentstatement to provide the declarant an opportunity to explain ordeny it.9 There is no requirement that the proponent provide thatopportunity at any particular time or in any particular sequence.10The Rule further requires that opposing counsel receive a similaropportunity to examine the declarant witness about thestatement.11
At the time the Advisory Committee on Evidence Rules draftedthe Federal Rules of Evidence, Rule 613 reflected a change fromthe common law that had fallen out of fashion in the federalcourts.12 That common law rule, known as the Rule in Queen Caro-lines Case or the Rule in Queens Case,13 required the proponentof a prior inconsistent statement to confront the declarant witnesswith the statement on cross-examination before introducing any ex-trinsic evidence of the prior statement.14 For a variety of reasons,the Advisory Committee reasoned that the Rule in Queen Caro-lines Case constituted an unnecessary encumbrance on cross-examination.15
Despite the plain meaning of Rule 613(b) and the clear explana-tion in the Advisory Committees Note,16 a number of federal courtshave continued to apply the common law Rule in Queen CarolinesCase, citing assorted rationales for doing so.17 The actions of thesecourts have caught the attention of the Advisory Committee on Evi-dence Rules.18 That Committee has entertained the idea of
7. See FED. R. EVID. 613(a).8. See PARK & LININGER, supra note 6. R9. FED. R. EVID. 613(b).10. See FED. R. EVID. 613(b) advisory committees note.11. FED. R. EVID. 613(b).12. See infra note 72. R13. See Leonard J. Stern & Daniel F. Grosh, A Visit with Queen Caroline: Her Trial and Its
Rule, 6 CAP. U. L. REV. 165, 166 (1976).14. See infra note 51. R15. See infra Part II.C.16. See FED. R. EVID. 613(b) advisory committees note.17. See infra Part III.B for an extended discussion of those decisions applying the Rule
in Queen Carolines Case after Congress enacted Rule 613(b).18. See ADVISORY COMM. ON RULES OF EVIDENCE, supra note 4. R

286 University of Michigan Journal of Law Reform [VOL. 47:2
amending Rule 613(b) to reflect the common law Rule in QueenCarolines Case.19
This Article considers the law governing the admission of extrin-sic evidence and evaluates the need for amending Rule 613(b) ofthe Federal Rules of Evidence. Part I explains the history behindthe Rule in Queen Carolines Case from its pronouncement in En-glish Parliament in 1820, through its adoption in the United States,to its modern application, and finally, to the adoption of the Fed-eral Rules of Evidence in 1975.20 Part II examines the application ofRule 613.21 In Part III, the Article explains the split among UnitedStates courts of appeals, in which most circuit courts apply Rule613(b) as intended,22 and a minority of circuit courts apply the su-perseded Rule in Queen Carolines Case.23 Part IV suggests that,rather than amend Rule 613(b) to return to the common law Rulein Queen Carolines Case, the Advisory Committee should take noaction concerning the Rule. If the Advisory Committee feels com-pelled to take action to make uniform the application of the Rule,it should amend the Rule to promote its enforcement as originallyintended.24
I. OLD SCHOOL: THE RULE IN QUEEN CAROLINES CASE
The Rule in Queen Carolines Case arose in the House of Lordsin 1820 as a procedure devised in the monumental Parliamentarypseudo-criminal divorce proceedings by which Queen Carolineshusband, King George IV, attempted to divest her of her title andher rights.25 Historians Leonard Stern and Daniel Grosh describedthe proceedings as involv[ing] nothing more than the foolish andscandalous personal lives of the most ridiculous royal couple inBritish history.26 The parliamentary mechanism used to divest theQueen was not ev

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