Public Comment Period Expiring On Amendment To Trustworthiness Requirement For FRE 803(6), FRE 803(7), and FRE 803(8) (Part III)

The public comment period on a pending amendment to the business record and public record hearsay exceptions under FRE 803(6), (7), (8) expires next week on February 15, 2013. To date, there appears to be no opposition or controversy to the amendment as no public comments have been submitted.

The pending amendment concerns the trustworthiness requirement for the business and public records hearsay exceptions under FRE 803(6), (7), (8). Specifically, the amendment would clarify who holds the burden of proof to show lack of trustworthiness. The proposed amendment would modify this requirement for each rule as follows (noting strike out for deletions and underline for insertions):

The business or public record is admissible where the foundational requirements are met and "neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness."

Under the proposed amendment, once the proponent of the business or public record satisfies the requirements for admission, the opposing party holds the burden to establish a lack of trustworthiness. While many courts already apply this burden, the amendment would clarify this issue.

The public comment opportunity is the second of seven steps in the rulemaking process to the Federal Rules of Evidence. Thus far, one set of comments have been received by the Federal Magistrate Judges Association (FMJA) (submitted Feb. 4, 2013), which concisely noted that: “The FMJA endorses the proposed amendments.”

In June 2012, the U.S. Judicial Conference Committee on Rules of Practice and Procedure approved the proposed amendment for publication involving FRE 803(6), (7), (8) which had been recommended by the Advisory Committee on Evidence Rules. The draft amendments are reproduced below along with a draft committee note explaining the amendment for each rule. Any public comments, which are due by February 15, 2013, may be submitted via email to: Rules_Comments@ao.uscourts.gov.

For more information on the pending amendments , see the background materials on the FRE 803(6), FRE 803(7), and FRE 803(8) Amendments Legislative History Page, which includes various reports on the amendments, and the prior blog posts in the Federal Evidence Blog discussing the amendments to FRE 803(6), FRE 803(7), and FRE 803(8).

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Advisory Committee on Evidence Rules
Proposed Amendment: Rule 803(6) (Records of a Regularly Conducted Activity)


strike out indicates deletion; underline indicates insertion

Rule 803. Exceptions to the Rule Against Hearsay — Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness.

* * *

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.

* * *


Draft Committee Note

The Rule has been amended to clarify that if the proponent has established the stated requirements of the exception — regular business with regularly kept record, source with personal knowledge, record made timely, and foundation testimony or certification — then the burden is on the opponent to show a lack of trustworthiness. While most courts have imposed that burden on the opponent, some have not. It is appropriate to impose the burden of proving untrustworthiness on the opponent, as the basic admissibility requirements are sufficient to establish a presumption that the record is reliable.

The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. For example, the opponent might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point. A determination of untrustworthiness necessarily depends on the circumstances.

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Advisory Committee on Evidence Rules
Proposed Amendment: Rule 803(7) (Absence of a Record of a Regularly Conducted Activity)


strike out indicates deletion; underline indicates insertion

Rule 803. Exceptions to the Rule Against Hearsay — Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness.

* * *

(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.

* * *


Draft Committee Note

The Rule has been amended to clarify that if the proponent has established the stated requirements of the exception — set forth in Rule 803(6) — then the burden is on the opponent to show a lack of trustworthiness. The amendment maintains consistency with the proposed amendment to the trustworthiness clause of Rule 803(6).

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Advisory Committee on Evidence Rules
Proposed Amendment: Rule 803(8) (Public Records)


strike out indicates deletion; underline indicates insertion

Rule 803. Exceptions to the Rule Against Hearsay — Regardless of Whether the Declarant Is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness.

* * *

(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.

* * *


Draft Committee Note

The Rule has been amended to clarify that if the proponent has established that the record meets the stated requirements of the exception — prepared by a public office and setting out information as specified in the Rule — then the burden is on the opponent to show a lack of trustworthiness. While most courts have imposed that burden on the opponent, some have not. Public records have justifiably carried a presumption of reliability, and it should be up to the opponent to “demonstrate why a time-tested and carefully considered presumption is not appropriate.” Ellis v. International Playtex, Inc., 745 F.2d 292, 301 (4th Cir. 1984). The amendment maintains consistency with the proposed amendment to the trustworthiness clause of Rule 803(6).

The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. For example, the opponent might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point. A determination of untrustworthiness necessarily depends on the circumstances.

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