Federal Evidence Review

The February deadline for submitting public comments regarding the proposed amendment to FRE 803(10) passed with only two email comments submitted to the Advisory Committee on Evidence Rules. The proposed amendment adopts a "notice and demand" procedure sanctioned by the Supreme Court and used by some states

The version of the amendment released for public comment “would permit a prosecutor who intends to offer a certification to provide written notice of that intent at least 14 days before trial. If the defendant does not object in writing within 7 days of receiving the notice, the prosecutor would be permitted to introduce a certification that a diligent search failed to disclose" a public record or statement. This would be in lieu of the government having to produce a witness to so testify as to the absence of the record. The proposed amendment is response to the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. __ (2009) (No. 07–591), which called into question under the Confrontation Clause the admission of certificates to prove the absence of a public record to be used at a criminal trial.

The two comments received by e-mail include the following:

• Federal Magistrate Judges Association: Comment on behalf of the FMJA by Malachy E. Mannion (M.D.Pa), President, at page 7, which simply noted that "[t]he FMJA endorses the proposed amendment."
• National Association of Criminal Defense Lawyers: Comment transmitted by attorney Peter Goldberg of Ardmore, PA, Chair of the NACDL Committee on Federal Rules of Procedure on February 14, 2012, noting that "[i]n principle, NACDL does not disapprove of this amendment, but we see problems with the wording and the timing aspects." Several adjustments in the wording of the rule and the time frame anticipated by the amended rule are noted.

In addition, as reported in the January 2012 issue of the Federal Evidence Review (Volume 9, No. 1), few comments were received during the public comment period:

Perhaps the lack of vigor in the bar to weigh in on the proposed rule changes was reflected by the fact that as with most of the rules subcommittees, the evidence committee found it necessary to cancel two public hearings scheduled on the proposed amendment to FRE 803(10). The first public hearing which was canceled was the session planned for January 7, 2012 in Phoenix, Arizona. The second public hearing on the amendment -- scheduled for January 17 in Washington D.C. -- was also canceled.

Pending Amendments to the Federal Rules of Evidence, 9 Fed. Evid. Rev. 110 (Jan. 2012).

The next steps after the close of the public comment period is for the Evidence Rules Committee to consider the comments and determine whether any adjustments are needed and whether to submit the proposed amendment to the United States Judicial Conference. The next session of the Evidence Rules Committee to consider the amendment is scheduled for April 3, 2012 in Dallas, Texas.

For more information on the pending amendment, includling background materials, see the FRE 803(10) Amendment Legislative History Page.

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