"Notice and demand" proposed amendment to FRE 803(10), approved by the U.S. Judicial Conference, to be considered by the U.S. Supreme Court under the rulemaking process; action by the Supreme Court is expected by May 1, 2013
At its annual meeting, on September 11, 2012 session, the U.S. Judicial Conference approved the proposed amendment to FRE Rule 803(10), and agreed to transmit it to the Supreme Court for consideration and recommended that it be adopted by the Court and transmitted to Congress. The approval by the Judicial Conference is the fifth of seven key steps identified by the Administrative Office of the Courts in the adoption of an amendment under the Rules Enabling Act.
As previously noted, the draft amendment “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. Under this approach, the government would not have to produce a witness to testify about the absence of the record. The proposed amendment conforms with the "notice and demand" approach approved by the Supreme Court’s in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), 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. See also Confrontation Clause Trend Toward More “Notice And Demand” Rules?
For more information on the pending amendment, see Memorandum to the Advisory Committee on Evidence Rules from Professor Daniel Capra regarding Proposed Amendment to Rule 803(10) — review of public comment (March 1, 2012), and the background materials at the FRE 803(10) Amendment Legislative History Page.
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