Supreme Court approves "notice and demand" amendment to FRE 803(10) (Absence of a Public Record), which becomes effective on December 1, 2013 unless Congress takes other action under the Rules Enabling Act
On April 16, 2013, the Supreme Court approved an amendment to FRE 803(10) concerning the absence of a public record. As we have noted in tracking the progress of the amendment, it "would permit a prosecutor who intends to offer a certification" to provide "written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice ... 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?
The approval by the Judicial Conference is the sixth of seven key steps identified by the Administrative Office of the Courts in the adoption of an amendment under the Rules Enabling Act. For more information on the pending amendment, see the background materials at the FRE 803(10) Amendment Legislative History Page; see also H. Doc. No. 113-26 (May 15, 2013) (Communication from the Chief Justice, the Supreme Court of the United States Transmitting Amendment to the Federal Rules of Evidence That Have Been Adopted by the Supreme Court, Pursuant To 28 U.S.C. 2072).
The amendment approved by the Supreme Court follows:
Advisory Committee on Evidence Rules
Proposed Amendment: Rule 803(10)
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:
(10) Absence of a Public Record. Testimony — or a certification under Rule 902 — that a diligent search failed to disclose a public record or statement if
the testimony or certification is admitted to prove that:
(A) the testimony or certification is admitted to prove
A ) the record or statement does not exist;
B ) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind;
Rule 803(10) has been amended in response to Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The Melendez-Diaz Court declared that a testimonial certificate could be admitted if the accused is given advance notice and does not timely demand the presence of the official who prepared the certificate. The amendment incorporates, with minor variations, a “notice-and-demand” procedure that was approved by the Melendez-Diaz Court. See Tex. 36 Code Crim. P. Ann., art. 38.41.
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