Judicial Standing Committee Considers Proposed Amendment To FRE 803(6), (7), (8) (Business and Public Records) (Part IV)

The Judicial Conference’s Committee on Rules of Practice and Procedure considers the recommendation of the the Advisory Committee on Evidence Rules to clarify which party holds the burden of proof to show lack of trustworthiness for the business and public records hearsay exceptions, under FRE 803(6), (7), (8)

As previously noted in the Federal Evidence Blog, an amendment has been advancing concerning the trustworthiness requirement for the business and public records hearsay exceptions under FRE 803(6), (7), (8). Specifically, the amendment would clarify who holds the burden of proof to show lack of trustworthiness. See generally Public Comment Period Expiring On Amendment To Trustworthiness Requirement For FRE 803(6), FRE 803(7), and FRE 803(8) (Part III).

On May 3, 2013, the Advisory Committee on Evidence Rules considered the public comments which were submitted during August 15, 2012 through February 15, 2013. See Meeting Agenda. The committee reporter provided background and analysis of the proposal and reviewed the two public comments which were submitted. See Memorandum to the Advisory Committee on Evidence Rules from Reporter Daniel J. Capra (April 1, 2013); see also Minutes of the Meeting of the Advisory Committee on Evidence Rules, at 6 (October 5, 2012) (summarizing reasons for the proposed amendment).

The Report, at 2, also provided context on the modification of the initial proposal based on the public comment:

The proposed amendments clarify that the opponent has the burden of showing that the proffered record is untrustworthy. The reasons espoused by the Committee for the amendments are: first, to resolve a conflict in the case law by providing uniform rules; second, to clarify a possible ambiguity in the Rules as originally adopted and as restyled; and third, to provide a result that makes the most sense, as imposing a burden of proving trustworthiness on the proponent is unjustified given that the proponent must establish that all the other admissibility requirements of these Rules are met—requirements that tend to guarantee trustworthiness in the first place.

There were only two public comments on the proposed amendments. Both approved of the text, but one comment suggested that the committee notes use language that fails to track the text of the Rules. Slight changes have been made to each of the three committee notes to address this concern.

Last week, on June 3-4, 2013, the Judicial Conference’s Committee on Rules of Practice and Procedure (known as the “Standing Committee”) met in Washington, D.C. to consider the amendment along with other proposals. The consideration by the Standing Committee is the fourth step in the amendment process out of seven steps. No official report has been released by the U.S. Courts concerning the Standing Committee action. If the Standing Committee approves the amendment, it will be sent to the Judicial Conference of the United States, the policy-making body regarding the administration of the U.S. courts, for consideration (the fifth step in the amendment process). The Federal Evidence Blog will continue to monitor and report on the developments.

In the meantime, the current proposal considered by the Standing Committee and the draft Committee Note are included below. The Committee Note, below, also summarizes the public comments that were received. For further information on past developments, see prior Blog Posts covering the amendments.

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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Advisory Committee on Evidence Rules
Proposed Amendment: Rule 803(6) (Records of a Regularly Conducted Activity)
(June 2013)


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.

* * *

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.

* * *

Committee Note

The Rule has been amended to clarify that if the proponent has established the stated requirements of the exception — regular business with regularly kept record, source with personal knowledge, record made timely, and foundation testimony or certification — then the burden is on the opponent to show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. While most courts have imposed that burden on the opponent, some have not. It is appropriate to impose this burden on opponent, as the basic admissibility requirements are sufficient to establish a presumption that the record is reliable.

The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. For example, the opponent might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point. A determination of untrustworthiness necessarily depends on the circumstances.

CHANGES MADE AFTER PUBLICATION AND COMMENTS

In accordance with a public comment, a slight change was made to the Committee Note to better track the language of the rule.

SUMMARY OF PUBLIC COMMENTS

The Federal Magistrate Judges Association (12-EV-003) endorses the proposed amendment.

The National Association of Criminal Defense Lawyers (12-EV-005) states that the text of the amendment is “well-constructed” but suggests that the Committee Note strays from the language of the text and that the Committee Note be revised to refer to the opponent’s burden to prove that the circumstances of preparation “indicate” a lack of trustworthiness.

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Advisory Committee on Evidence Rules
Proposed Amendment: Rule 803(7) (Absence of a Record of a Regularly Conducted Activity)
(June 2013)


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.

* * *

(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.

* * *

Committee Note

The Rule has been amended to clarify that if the proponent has established the stated requirements of the exception — set forth in Rule 803(6) — then the burden is on the opponent to show that the possible source of the information or other circumstances indicate a lack of trustworthiness. The amendment maintains consistency with the proposed amendment to the trustworthiness clause of Rule 803(6).

CHANGES MADE AFTER PUBLICATION AND COMMENTS

In accordance with a public comment, a slight change was made to the Committee Note to better track the language of the rule.

SUMMARY OF PUBLIC COMMENTS

The Federal Magistrate Judges Association (12-EV-003) endorses the proposed amendment.

The National Association of Criminal Defense Lawyers (12-EV-005) states that the text of the amendment is “well-constructed” but suggests that the Committee Note strays from the language of the text and that the Committee Note be revised to refer to the opponent’s burden to prove that the circumstances of preparation “indicate” a lack of trustworthiness.

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Advisory Committee on Evidence Rules
Proposed Amendment: Rule 803(8) (Public Records)
(June 2013)


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.

* * *

(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.

* * *


Committee Note

The Rule has been amended to clarify that if the proponent has established that the record meets the stated requirements of the exception — prepared by a public office and setting out information as specified in the Rule — then the burden is on the opponent to show that the source of information or other circumstances indicate a lack of trustworthiness. While most courts have imposed that burden on the opponent, some have not. Public records have justifiably carried a presumption of reliability, and it should be up to the opponent to “demonstrate why a time-tested and carefully considered presumption is not appropriate.” Ellis v. International Playtex, Inc., 745 F.2d 292, 301 (4th Cir. 1984). The amendment maintains consistency with the proposed amendment to the trustworthiness clause of Rule 803(6).

The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. For example, the opponent might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point. A determination of untrustworthiness necessarily depends on the circumstances.

CHANGES MADE AFTER PUBLICATION AND COMMENTS

In accordance with a public comment, a slight change was made to the Committee Note to better track the language of the rule.

SUMMARY OF PUBLIC COMMENTS

The Federal Magistrate Judges Association (12-EV-003) endorses the proposed amendment.

The National Association of Criminal Defense Lawyers (12-EV-005) tates that the text of the amendment is “well-constructed” but suggests that the Committee Note strays from the language of the text and that the Committee Note be revised to refer to the opponent’s burden to prove that the circumstances of preparation “indicate” a lack of trustworthiness.

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