The Case Of The Missing Rule Amendment?

As the Standing Committee on Rules of Practice and Procedure went into its June 9-10, 2008, meeting, it was to consider a recommendation from the Advisory Committee on Evidence Rules to amend FRE 804(b)(3).

Under the proposal, the corroborating circumstances requirement of FRE 804(b)(3) would apply to statements against penal interest offered by the prosecution - a change from the current requirement that only the "accused" need to show corroborating circumstances. But the latest report of the results of the Standing Committee meeting is silent about the fate of the proposed FRE 804(b)(3) amendment.

The only reported action by the Standing Committee was to approve publishing for public comment "restyled evidence Rules 101-415" with the actual publication to occur when the entire Federal Rules of Evidence has been restyled. It is not clear what, if anything, happened to the proposed amendment to FRE 804(b)(3).

An amendment to FRE 804(b)(3) had been submitted to the U.S. Supreme Court before the Crawford decision in 2004. As noted in the Minutes of April 29th and 30th, 2004 Advisory Committee on Evidence Rules (at page 22), the proposed amendment was withdrawn to permit restudy in light of the Supreme Court's new Confrontation Clause jurisprudence:

Shortly after the Supreme Court decided Crawford, it considered the proposed amendment to Rule 804(b)(3). The Court decided to send the amendment back to the Standing Committee for reconsideration in light of Crawford. This action was not surprising, because the very reason for the amendment was to bring the Rule into line with the Confrontation Clause. Now that the governing standards for the Confrontation Clause have been changed, the proposed amendment did not meet its intended goal. It embraced constitutional standards that are no longer applicable.

For reasons discussed earlier in the meeting in the discussion of other hearsay exceptions, the Committee determined that it was prudent to hold off on any consideration of an amendment to a hearsay exception until the courts are given some time to figure out the meaning and all the implications of Crawford. Any attempt to bring Rule 804(b)(3) into line with Crawford standards a this point would be unwise given the fact that those standards have not yet been clarified."

Federal Rules of Evidence