Federal Evidence Review

On December 1, 2010, a new amendment to the Federal Rules of Evidence takes effect. The rule concerns the admission of statements against interest under FRE 804(b)(3) has been amended so that the corroborating circumstances requirement for admission of a declaration against interest applies to statements against penal interest introduced by the government as well as those by the defendant in criminal cases. This requirement previously applied to statements introduced by the defendant.

Under the Rules Enabling Act, after Congress receives proposed amendments to the federal rules from the U.S. Supreme Court by May 1st, the changes become effective unless Congress otherwise acts by December 1st. On April 28, 2010, the Supreme Court transmitted an amendment to FRE 804(b)(3) to the Congress. See also H. Doc. No. 111-113. Since Congress did not act prior to December 1, 2010, by the terms of the Rules Enabling Act, the amendment was adopted.

In the transmission message, the letter of Chief Justice John G. Roberts, Jr., noted the prospective and retroactive application of the amendment:

That the foregoing amendment to the Federal Rules of Evidence shall take effect on December 1, 2010, and shall govern in all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending.

In February 2009, the public comment period ended. In September 2009, the United States Judicial Conference approved the proposed amendment to FRE 804(b)(3) and recommended its adoption to the U.S. Supreme Court. See Report Of The Judicial Conference, Committee On Rules Of Practice And Procedure To The Chief Justice Of The United States And Members Of The Judicial Conference Of The United States, at 27-28 (Sept. 2009); see also Excerpt From The Report Of The Judicial Conference Committee On Rules Of Practice And Procedure To The Chief Justice Of The United States And Members Of The Judicial Conference Of The United States (Sept. 2009). For more background information on the specific steps toward adoption of the amendment to FRE 804(b)(3), see the 2010 FRE 804(b)(3) Amendment Legislative History Page.

According to the Advisory Committee Notes (ACN) accompanying the amendment, one question concerns the manner in which determining whether corroborating circumstances apply. The full text of the ACN is presented below:

Committee Note

Subdivision (b)(3). Rule 804(b)(3) has been amended to provide that the corroborating requirement applies to all declarations against penal interest offered in criminal cases. A number of courts have applied the corroborating circumstances requirement to declarations against penal interest offered by the prosecution, even though the text of the Rule did not so provide. See, e.g., United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978) ("by transplanting the language governing exculpatory statements onto the analysis for admitting inculpatory hearsay, a unitary standard is derived which offers the most workable basis for applying Rule 804(b)(3)"); United States v. Shukri, 207 F.3d 412 (7th Cir. 2000) (requiring corroborating circumstances for against=penal-interest statements offered by the government). A unitary approach to declarations against penal interest assures both the prosecution and the accused that the Rule will not be abused and that only reliable hearsay statements will be admitted under the exception.

All other changes to the structure and wording of the Rule are intended to be stylistic only. There is no intent to change any other result in any ruling on evidence admissibility.

The amendment does not address the use of the corroborating circumstances for declarations against penal interest offered in civil cases.

In assessing whether corroborating circumstances exist, some courts have focused on the credibility of the witness who relates the hearsay statement in court. But the credibility of the witness who relates the statement is not a proper factor for the court to consider in assessing corroborating circumstances. To base admission or exclusion of a hearsay statement on the witness’s credibility would usurp the jury’s role of determining the credibility of testifying witnesses.

See H. Doc. No. 111-113 (including ACN for amended FRE 804(b)(3)).

Another prior proposed amendment to FRE 804(b)(3) was recommended by the U.S. Judicial Conference but declined in 2004 by the Supreme Court. For more on this amendment, see the 2004 Proposed FRE 804(b)(3) Amendment Legislative History Page.