FRE 801(d)(1)(B) Amendments Approved By Standing Committee (Part VIII)

A proposed amendment to FRE 801(d)(1)(B) will be transmitted to the U.S. Judicial Conference for review. Under the Rules Enabling Act, the Conference decides whether to transmit the proposal to the Supreme Court, recommending its adoption. The Court, if it approves the change, will transmit the proposed amendment to Congress to take effect on December 1, 2014 unless Congress takes action to disapprove

On June 3-4, 2013, the Judicial Conference Committee on Rules of Practice and Procedure (known as the “Standing Committee”) met in Washington, D.C. On its agenda was a proposal from the May meeting of the Advisory Committee on Evidence Rules to approve a revised version of the proposal to amend FRE 801(d)(1)(B). See Changes Made To Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part VI)). Revisions to the proposed rule had been made by the Advisory Committee based on public comments received between August 2012 and February 15, 2012. See Changes Made To Proposed Amendment To FRE 801(d)(1)(B) (Prior Consistent Statement) (Part IV).

After discussion, the committee voted to transmit the revised version of the proposed amendment to the U.S. Judicial Conference for its approval. See . As indicated by the draft minutes for the Standing Committee meeting, the final proposal was subject to minimal debate. Currently only the September 12, 2013 Standing Committee's minutes is available. See Minutes, at 67, 82 (Sept. 12, 2013).

According to the September 12 draft minutes of the Advisory Committee:

REPORT OF THE ADVISORY COMMITTEE ON EVIDENCE RULES

Chief Judge Sidney A. Fitzwater, assisted by the advisory committee’s reporter, Professor Daniel J. Capra, presented the report of the Evidence Rules Committee. The advisory committee sought final Standing Committee approval and transmittal to the Judicial Conference of the United States of four proposals: (1) an amendment to Rule 801(d)(1)(B) – the hearsay exemption for certain prior consistent statements – to provide that prior consistent statements are admissible under the hearsay exemption whenever they would otherwise be admissible to rehabilitate the witness’s credibility; and (2) amendments to Rules 803(6)-(8) – the hearsay exceptions for business records, absence of business records, and public records – to eliminate an ambiguity uncovered during the restyling project and to clarify that the opponent has the burden of showing that the proffered record is untrustworthy.

ACTION ITEMS

A. Proposed Action: Transmission to the Judicial Conference of Proposed Amendments to Rule 801(d)(1)(B)

The advisory committee proposed that Rule 801(d)(1)(B) be amended to provide that prior consistent statements are admissible under the hearsay exemption whenever they would otherwise be admissible to rehabilitate the witness’s credibility. The amendment is intended to eliminate confusing jury instructions on the permissible use of prior consistent statements. Judge Fitzwater emphasized that this amendment would preserve the rule of Tome v. United States, 513 U.S. 150 (1995). Under that case, a prior consistent statement is not hearsay only if it was made prior to the time when the motive to fabricate arose.

A member of the Standing Committee observed that if a witness was in court and available to be cross-examined, there seemed little reason to exclude prior consistent statements on any basis. The advisory committee’s reporter observed that this current amendment represented a small step in that direction.

Action: The Standing Committee, by voice vote without objection, approved the proposed amendments to Rule 801(d)(1)(B) for transmission to the Judicial Conference for its approval.

Fifth Step In Rule Amendment Process

With presentation to the October U.S. Judicial Conference, the proposed amendment will have reached the fifth of seven key steps identified in the adoption of an amendment under the Rules Enabling Act. Passage by the Conference Represents the fifth step, followed in the spring of the following year with final promulgation by the U.S. Supreme Court.

For more information on the pending amendment to FRE 801(d)(1)(B), see the background materials at the FRE 801(d)(1)(B) Amendment Legislative History Page, which includes various reports on the amendment, and the prior coverage in the Federal Evidence Blog.

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