More opposition lodged against the propose amendment to FRE 801(d)(1)(B) which would broaden the use of prior consistent statements to "rehabilitate[ ] the declarant’s credibility as a witness”; the comments received indicate a good deal of consensus among those who question the need for this amendment which could take effect in December 2013; three more comments have been received by the Advisory Committee on Evidence Rules
Two weeks ago, the Federal Evidence Blog reported on the status of public comments received on the proposed amendment to FRE 801(d)(1)(B). See Public Comments Critical Of Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part IV). The proposal concerns the use of prior consistent statements for rehabilitative purposes; the amendment could extend the admission of prior consistent statements for use as substantive evidence, as well as rehabilitative use. The prior blog post noted that, at the time, only three comments had been received since the comment period began in August 2012 and that the three comments were rather critical, suggesting in a sense that the amendment was a bit much over nothing.
Since that Blog post, three further comments have been posted that the committee received before the end of the public comment period. This brings a total of six public comments. The quiet public reaction to the proposed amendment reflected by the written comments is matched by the Evidence Rules Advisory Committee's need to cancel two public hearings on the proposed change - again because of an apparent lack of public interest.
The next step in the amendment process is Step 3 (Consideration of the Public Comments and Final Approval by the Advisory Committee). Currently, the Evidence Advisory Committee is scheduled to meet on Friday May 3, 2013 in Miami, for this purpose.
As noted previously, several themes have arisen in the critique of the proposed amendment. These concerns were echoed in the three additional comments received before the end of the Comment Period:
Although the commenter notes that "the rationale of the proposed change" is compelling, she expressed reservations about the particular proposal that went to public comment. Here main reservation being that it "has the potential to deliver a mixed message to judges and litigants about the future of the Supreme Court's decision in Tome v. United States." She opined that the reason an amendment is being discussed is that the rule is ambiguous in failing to "include certain prior consistent statements or to articulate any basis for excluding them from coverage." She recommended that the amendment not be adopted as it could "potentially undermine" Tome. Her solution involved an "explicit clarification" in the Advisory Committee Notes "of the importance of consistency between trial testimony and prior statements seems critical to proper operation of the exemption."
Mr. Goldberg noted the NACDL's opposition to the proposed amendment "because it would increase the existing disparity between the admissibility of prior consistent and prior inconsistent statements ... without furthering the objective of the Rules to promote reliability in factfinding. He too expressed a concern that rather than resolve ambiguities, the change would "also introduce a fundamental ambiguity," which would be "fatally ambiguous." In lieu of the proposed change, the writer urged a more extensive amendment to FRE 801 so that it treats prior consistent statements the same as prior inconsistent statements - i.e., to admit them as substantive evidence only when they were made under penalty of perjury and during a trial-like proceeding."
Former Advisory Committee Member from 2006-2012
Mr. Hangley expressed growing "misgivings" about the proposed change and that his "concerns with the downside of the proposed amendment has not lessened with the passage of time." Mr. Hangley had previously commented on the amendment on behalf of the American Bar Association Section of Litigation. In effect, he suggested that there was a need for "further study" of the problem that the rule amendment is designed to solve. His fear involved that "[a]mending the rule would change the law of evidence without intending to, and without full consideration of whether the change is called for."
Significantly, no public comment was received supporting the amendment change. All comments urged alternative measures designed to achieve some of the same goals as the amendment. As the proposal returns for final consideration by the Advisory Committee on Evidence Rules this spring it will be interesting to see if the few, but generally negative comments, will impact the Committee's recommendations.
For more information on the pending amendment to FRE 801(d)(1)(B), see the background materials at the FRE 801(d)(1)(B) Amendment Legislative History Page, which includes various reports on the amendment, and the prior coverage in the Federal Evidence Blog.