Federal Evidence Review

On August 8, 2008, a draft amendment to FRE 804(b)(3) (Declarations Against Interest) was released for public comment by the U.S. Judicial Conference Committee on Rules of Practice and Procedure. The proposed amendment would clarify that the corroborating circumstances requirement under the rule applies to statements against penal interest introduced by the government. This requirement already applies to statements admitted by the defendant. Some courts have held that the same requirement applies to statements offered by the government. Only four comments were received as the public comments period closed on February 17, 2009.

The following public comments were received:

• David F. Binder (questioning why “all statements that happen to be against the declarant's penal interest ‘not admissible’ in a criminal case unless corroborating circumstances clearly indicate their trustworthiness”; recommending new language for last sentence of FRE 804(b)(3): “A statement tending to expose the declarant to criminal liability, when offered in a criminal case, is included within this exception from the hearsay rule only if corroborating circumstances clearly indicate the trustworthiness of the statement”)
• Professor R. Friedman (Professor Friedman requested an opportunity to testify at the Evidence Rules Committee's planned January 26 session in Atlanta. Committee staff responded that the hearing had been canceled because no other requests to testify had been received)
• Professor P. Leonard (endorsing some of the observations of Mr. Binder, but proposing alternate wording to correct any possible misconception arising from the wording of the proposed amendment. The professor also discussed the impact of Crawford v. Washington on the amended rule, particularly how the rule would interact with the requirements of Williamson v. United States)
• Federal Magistrate Judges Association (supporting the concept embodied in the amendment, but suggest adding text to resolve any ambiguity concerning whether the amendment is intended to apply only to criminal trials as opposed to all criminal proceedings)

Now with the comments received, the appropriate committees of the U.S. Judicial Conference will consider them and make a final recommendation on any amendment to the U.S. Judicial Conference. For further background on the amendment, see Part VIII (Sept. 18, 2009), Part VII (May 6, 2009), Part V (Jan. 21, 2008), Part IV (Nov. 18, 2008), Part III (Aug. 21, 2008), Part II (June 19, 2008), and Part I (June 9, 2008).