Next step taken for consideration of an amendment to FRE 804(b)(3): At its June 1-2, 2009 meeting, the Committee on Rules of Practice and Procedure adopted a recommendation from the Advisory Committee on Evidence Rules concerning the Declarations Against Interest. The Evidence Committee recommended that FRE 804(b)(3) be amended so that the corroborating circumstances requirement for admission of a declaration against interest applies to statements against penal interest introduced by the government as well as those by the defendant. This amendment has been previously noted in May 2009, February 2009, and June, 2008.
The Rules of Practice and Procedure Committee’s action paves the way for the amendment to be implemented by December 1, 2010. Under the Rules Enabling Act, 28 U.S.C. § 2071-77, the schedule for the amendment would be:
| Date | Action |
|---|---|
| September, 2009 | Consideration by the United States Judicial Conference, an administrative body made up of the Chief Justice and of the chief judges of each circuit and representatives of the district judges of each circuit. 28 U.S.C. § 2073(a) & (b) |
| Fall, 2009 | If approved by the United States Judicial Conference, the proposed amendment would be “promptly transmitted” to the United States Supreme Court for promulgation. |
| May, 2010 | The Supreme Court has the authority to prescribe the federal rules, subject to a statutory waiting period. 28 U.S.C. §§ 2072, 2075. The Court must transmit proposed amendments to Congress by May 1 of the year in which the amendment is to take effect. 28 U.S.C. §§ 2074, 2075 |
| December 1, 2010 | The Congress has a statutory period of at least 7 months to act on any rules prescribed by the Supreme Court. If the Congress does not enact legislation to reject, modify, or defer the rules, they take effect as a matter of law on December 1. 28 U.S.C. §§ 2074, 2075. |
Under the amendment approved by the Rules of Practice and Procedure Committee, FRE 803(b)(3) would be changed as follows:
PROPOSED AMENDMENT TO THE FEDERAL RULES OF EVIDENCE 804(b)(3)
strike outindicates deletion; underline indicates insertion
Rule 804. Hearsay Exceptions; Declarant Unavailable
(b) Hearsay exceptions. - The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
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(3) Statement against interest. - A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offeredto exculpate the accusedin a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
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