FRE 803(10) Legislative History Page

Proposed Amendment To

FRE 803(10)

Legislative History Page

The FRE 803(10) Legislative History Page summarizes and provides information concerning the pending amendment.

On April 8, 2011, the Evidence Rules Advisory Committee recommended that FRE 803(10) be considered for amendment by the Supreme Court under the Rules Enabling Act. The proposed amendment follows a "notice and demand" approach, similar to an procedure used in some states. Under a notice and demand procedure, a prosecutor may show the absence of a public record, by providing to the defendant notice that the government intends to prove the issue via a certification. It is then up to the defendant to object if this form of proof is not satisfactory.

Following public comment on the draft amendment, in September 2012 the U.S. Judicial Conference approved the proposed amendment, agreed to transmit it to the Supreme Court and recommended that the Supreme Court approve it and transmit it to Congress. The Court did so in April 2013 and no action was taken by Congress for or against the measure. Under the Rules Enabling Act, this would bring the amended rule into effect on December 1, 2013. According to the Court order promulgating the rule amendment order promulgating the rule amendment to FRE 803(10) the change will apply to "all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending " on December 1, 2013.

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The proposed amendment follows:

Advisory Committee on Evidence Rules
Proposed Amendment: Rule 803(10)

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:

* * *

(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 that

(A i) the record or statement does not exist;
(B ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
(B) in a criminal case, a prosecutor who intends to offer a certification provides 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 — unless the court sets a different time for the notice or the objection.

Committee Note

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.

Below is a chronology of the development and consideration of the amendment to FRE 803(10) to date:

December 1, 2013Under the Rules Enabling Act, the Supreme Court approved amendment to FRE 803(10) which shall become effective December 1, 2013 in the absence of any congressional action.

April 16, 2013After approving amended Rule 803(10), the Supreme Court transmit it to Congress under the Rules Enabling Act.

September 2012Judicial Conference approved the amendment and recommend that the Supreme Court approve the proposed amendment and transmit it to Congress

June 11, 2012The Committee on Rules of Practice and Procedure recommended that the Judicial Conference approve the proposed amendment to FRE 803(10)

April 3, 2012Advisory Committee Consideration of Public Comments

  • See also 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)
February 15, 2012Public Comment Closes: Two Written Comments Received:
Sept. 2011 - February 2012Public Comment Period
Sept. 2011Report of the Judicial Conference Committee on Rules of Practice and Procedure, at 28-30

  • “The Committee approved the advisory committee’s recommendation to publish the proposed amendment for public comment.”
August 2011Committee on Rules of Practice and Procedure
June 2-3, 2011Committee on Rules of Practice and Procedure, at 2

  • Action: “Approving publishing for public comment an amendment to Rule 803(10) to comport with the Supreme Court’s decision in Melendez-Diaz v. Massachusetts
April 8, 2011 Report of the Evidence Rules Advisory Committee, at 2

  • Recommendation: “The Committee recommends that the proposed amendment to Evidence Rule 803(10) be approved for release for public comment.”
April 1, 2011Advisory Committee on Evidence Rules, Minutes of the Meeting

  • "After significant discussion, the Committee unanimously approved [an] ... amendment to the text of Rule 803(10), to be transmitted to the Standing Committee with the recommendation that it be approved for public comment".
March 2011 Report of the Judicial Conference Committee on Rules of Practice and Procedure, at 7

  • Reporting: “The advisory committee [on Evidence Rules] is considering whether to amend Rule 803(10) in light of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), in which the Court held that certificates reporting the results of certain forensic tests conducted by analysts are ‘testimonial’ within the meaning of the Confrontation Clause, as construed in Crawford v. Washington, 541 U.S. 36 (2004), making admission of such certificates in lieu of in-court testimony a violation of the accused’s right to confrontation.”
January 6-7, 2011 Minutes of the Committee on Rules of Practice and Procedure, at 34

  • Reporting that “the advisory committee expected to seek approval from the Standing Committee at its June 2011 meeting to publish a proposed amendment to Rule 803(10)” to address Confrontation Clause issues
  • “The amendment “adopt a notice-and-demand procedure, under which the government could give notice to the defendant of its intent to produce a certificate without personal testimony, and the defendant in turn could demand that the witness who produced the results testify in person at trial. In the absence of such a demand, the matter could proceed without the testimony.”
October 12, 2010 Minutes of the Meeting of the Advisory Committee on Evidence Rules, at 3-4

  • “[T]he Committee unanimously resolved to consider a proposed amendment to Rule 803(10) at its next meeting. The Reporter was directed to work with the Justice Department to review all the possible viable alternatives for a notice-and-demand procedure, including ones that add procedural details such as providing for continuances. The Reporter was also asked to consider an alternative draft that would prevent the use of Rule 803(10) when a record is offered by the government in a criminal case.”

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Blog Posts On The 2013 Amendment to FRE 803(10)

Blog posts from the Federal Evidence Blog discussing the 2010 amendment to FRE 803(10) are available here.


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