Last week, the U.S. Supreme Court transmitted an amendment to FRE 804(b)(3) to the Congress for its review. As noted below, the rule would 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.
On April 28, 2010, the Supreme Court adopted the proposed amendment which had been previously recommended on September 15, 2009 by the Judicial Conference of the United States, which 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).
For more background information on the proposed amendment to FRE 804(b)(3), see the 2010 Proposed FRE 804(b)(3) Amendment Legislative History Page; the 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) (beginning at p. 27; and including other proposed amendments).
As previously noted, under the Rules Enabling Act, 28 U.S.C. § 2071-77, the most recent schedule for the amendment includes:
| Time Line For Pending FRE 804(b)(3) Amendment | |
| Date | Action |
| 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 | The 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 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)
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.
A prior proposed amendment to FRE 804(b)(3) was recommended by the U.S. Judicial Conference but declined in 2004 by the Supreme Court. For more on this amendment, see the 2004 Proposed FRE 804(b)(3) Amendment Legislative History Page.
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