Federal Evidence Review

The proposed amendment to FRE 804(b)(3) will be transmitted to the Supreme Court for its review with a recommendation from the U.S. Judicial Conference that the Supreme Court approve and transmit the proposed amendment to Congress

On September 15, 2009, the Judicial Conference of the United States approved the proposed amendment to FRE 804(b)(3). The Judicial Conference is 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. See 28 U.S.C. §§ 2073(a), (b). The Advisory Committee on Evidence Rules had previously 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. See Proposed FRE 804(b)(3) Amendment. Under the Rules Enabling Act, the proposed amendment will be transmitted to the Supreme Court which will decide whether to transmitted to Congress.

For more on the proposed amendment to FRE 804(b)(3), see the Proposed FRE 804(b)(3) Amendment Legislative History Page. For the Judicial Conference Report approving the amendment along with others, see Report Of The Judicial Conference, Committee On Rules Of Practice And Procedure To The Chief Justice Of The United States And Members Of The Judicial Conference Of The United States (Sept. 2009) (including proposed amendments to Fed. R. App. P. 1, 4, and 29, and Form 4; Fed. R. Civ. P. 8, 26, and 56, and Illustrative Form 52; Fed. R. Crim. P. 12.3, 15, 21, and 32.1; and Bankruptcy Rules 1007, 1014, 1015, 1018, 1019, 4001, 4004, 5009, 7001, 9001 and new Rule 5012, and Exhibit D of Official Form 1 and Official Form 23).

Under the Rules Enabling Act, 28 U.S.C. § 2071-77, the schedule for the amendment would be:

• September 15, 2009 - The United States Judicial Conference approves the proposed amendment to FRE 804(b)(3) which is “transmitted” to the United States Supreme Court for its review. See 28 U.S.C. § 2073(a) & (b)
• May 2010 - The Supreme Court has the authority to prescribe the federal rules, subject to a statutory waiting period. See 28 U.S.C. §§ 2072, 2075. The Court “shall transmit to the Congress not later than May 1” of the year in which the proposed amendment is to take effect. See 28 U.S.C. §§ 2074(a), 2075
• December 1, 2010 - Congress has a statutory period of at least seven 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. See 28 U.S.C. §§ 2074, 2075.

Under the proposed amendment approved by the U.S. Judicial Conference, FRE 803(b)(3) would be amended as follows:

PROPOSED AMENDMENT TO THE FEDERAL RULES OF EVIDENCE 804(b)(3) (“clean” form)

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 that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

For further background on the amendment, see Part VII (May 6, 2009), Part VI (Feb. 19, 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).