Standing Committee Approves Amendments To FRE 803(6), FRE 803(7), And FRE 803(8) (Part V)

The Judicial Conference Committee on Rules of Practice and Procedure approves proposed amendment to amend FRE 803(6), FRE 803(7), and FRE 803(8) concerning which party bears the burden of establishing the "untrustworthiness" of the record; the U.S. Judicial Conference will consider the proposal at its next meeting

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. The Standing Committee considered the Advisory Committee on Evidence Rules recommendation to amend FRE 803(6), FRE 803(7), and FRE 803(8). See Judicial Standing Committee Considers Proposed Amendment To FRE 803(6), (7), (8) (Business and Public Records) (Part IV). The proposed amendment would clarify that the opponent of the evidence would hold the burden to establish the untrustworthiness of the evidence. The proposal had previously been subject to public comment between August 2012 and February 15, 2012. See Public Comment Period Expiring On Amendment To Trustworthiness Requirement For FRE 803(6), FRE 803(7), and FRE 803(8) (Part III).

According to the draft minutes for the Standing Committee meeting, there was not much debate on the final proposal. 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

B. Proposed Action: Transmission to the Judicial Conference of Proposed Amendments to Rules 803(6)-(8) (Hearsay Exceptions for Business Records, Absence of Business Records, and Public Records) – Burden of Proof As To Trustworthiness

The advisory committee proposed that Rules 803(6)-(8) be amended to address an ambiguity uncovered during restyling, but left unaddressed. Subsequent restyling efforts in Texas revealed the ambiguity could be misinterpreted as placing the burden of proof on a proponent of a proffered record to show that it was trustworthy.

The proposed amendments clarify that the opponent has the burden of showing that the proffered record is untrustworthy. The reasons espoused by the advisory 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.

Action: The Standing Committee, by voice vote without objection, approved the proposed amendments to Rules 803(6)-(8) for transmission to the Judicial Conference for its approval.

Fifth Step In Rule Amendment Process

With presentation to the Judicial Conference, the proposed amendment will have reached the fifth of seven key steps identified by the Administrative Office of the Courts 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 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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