Federal Evidence Review

Few public comments yet received with the deadline approaching on February 17, 2009

The proposed amendment to FRE 804(b)(3) (Declarations Against Interest) appears to be generating little controversy and few public comments.

On August 8, 2008, a draft amendment to FRE 804(b)(3) 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.

Public hearings were to be held by the Advisory Committee on Evidence on in San Antonio, Texas, on January 13, 2009, and in Atlanta, Georgia, on January 26, 2009. However, these hearings were cancelled. The public comment period ends by February 17, 2009. Public comments may be provided online. After the comments are 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. Public comments are posted online.

With a month remaining, only two public comments have been received so far:

• Comment by 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.”)
• Comment by Richard D. Friedman (requesting an opportunity to provide comments). Professor Friedman is the Ralph W. Aigler Professor of Law at the University of Michigan Law School and has written extensively on the Confrontation Clause, advocating a "testimonial" approach that the Supreme Court adopted in Crawford. He maintains a blog focused on Confrontation Clause issues.

For more information, review the Memorandum to the Bench, Bar, and Public on Proposed Amendments to the Federal Rules (Aug. 2008). For a copy of the draft amendment language, and an explanation of the purpose for the amendment, see this prior post. For a copy of the draft amendment language, and an explanation of the purpose for the amendment, see this explanatory post. For further background on the amendment, see Part VIII (Sept. 18, 2009), Part VII (May 6, 2009), Part VI (Feb. 19, 2009), Part IV (Nov. 18, 2008), Part III (Aug. 21, 2008), Part II (June 19, 2008), and Part I (June 9, 2008).