Proposed Amendment Would Clarify Burden To Show Untrustworthiness For FRE 803(6), FRE 803(7), And FRE 803(8) (Part I)

Committee on Rules of Practice and Procedure approved the draft amendment to FRE 803(6) (Records of a Regularly Conducted Activity), FRE 803(7) (Absence of a Record of a Regularly Conducted Activity), FRE 803(8) (Public Records) for publication; the public comment period will commence August 15, 2012 and end by February 13, 2012

A proposed amendment to the business and public records hearsay exceptions will soon be available for public comment.

In April 2012, the Advisory Committee on Evidence Rules considered and approved a draft amendment to FRE 803(6), FRE 803(7), and FRE 803(8) which would clarify that the opponent of the business or public record bears the burden to show the untrustworthiness of the record. See Agenda for Committee Meeting (April 3, 2012); see also Report of the Advisory Committee on Evidence Rules (May 3, 2012). On June 11, 2012, the Judicial Conference Committee on Rules of Practice and Procedure approved the draft amendment for publication and public comment. The public comment period begins August 15, 2012, and will end by February 15, 2013. See Preliminary Draft Of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Criminal Procedure, and the Federal Rules of Evidence (August 2012).

The issue was originally noted during the effort to restyle the Federal Rules of Evidence. However, the restyling of the FRE was limited to non-substantive matters. See Report of the Advisory Committee on Evidence Rules, at 4 (May 3, 2012) (“Because the proposal would have changed the law in at least one court, it was deemed substantive and therefore outside the scope of the restyling project.”).

As further background, in March 2012, an analysis was provided to the Advisory Committee on Evidence Rules by the committee reporter. See Memorandum to the Advisory Committee on Evidence Rules from Professor Daniel Capra regarding Possible Amendment to the Trustworthiness Clauses of Rules 803(6)-(8) (March 1, 2012). The memorandum summarizes current case law, the rationale in support of the amendment and positions of members of the ABA Litigation Section and the American College of Trial Lawyers, which support the proposal.

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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