Judicial Conference Approves Proposed Amendment To FRE 803(6), FRE 803(7), And FRE 803(8) (Part VI)

The U.S. Judicial Conference approved a pending amendment to FRE 803(6) (Business Records), FRE 803(7) (Absence of Business Records), and FRE 803(8) (Public Records) clarifying that the opponent of the records bears the burden to establish the "untrustworthiness" of the records; under the procedures of the Rules Enabling Act, the Conference must submit its recommended amendment to the Supreme Court. If the Court approves the amendment by May 1, 2014 it will transmit the proposed amendment to Congress. While Congress has the power to reject the amendment, if it takes no official action by December 1, 2014 the amended rule will go into effect.

Under current law, the business and public record evidence rules provide that these records are admissible once the proponent satisfies the requirements of the applicable rule “unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” The language does not clarify which party bears the burden to show a "lack of trustworthiness." There is also some division in the cases (noted below).

Judicial Conference Action

At its last meeting, the U.S. Judicial Conference's approved a recommendation of the Judicial Conference Committee on Rules of Practice and Procedure (known as the “Standing Committee”). see Standing Committee Approves Amendments To FRE 803(6), FRE 803(7), And FRE 803(8) (Part V). As the Report of the Judicial Conference Committee on Rules of Practice and Procedure to the Chief Justice of the United States and Members of the Judicial Conference of the United States, at 31 (Sept. 2013) explained the proposal:

Most courts impose the burden of proving untrustworthiness on the opponent, but a few require the proponent to prove that a record is trustworthy.... [The proposed amendments] would clarify that the opponent has the burden of showing that the proffered record is untrustworthy.

Current Cases

There is some division under current case law on which party bears the burden to establish a "lack of trustworthiness." The following cases are illustrative:

  • First Circuit: United States v. Dowdell, 595 F.3d 50, 72 n.18 (1st Cir. 2010) (noting open issue: “We have not yet considered who should bear the burden in this context, although our default position seems to be that it would be the party seeking admission, which in this case is the government.”) (citations omitted)
  • Second Circuit: Bridgeway Corp. v. Citibank, 201 F.3d 134, 143-44 (2d Cir. 2000) (“Once a party has shown that a set of factual findings satisfies the minimum requirements of Rule 803(8)(C), the admissibility of such factual findings is presumed. The burden to show ‘a lack of trustworthiness’ then shifts to the party opposing admission.”) (citing Ariza v. City of New York, 139 F.3d 132, 134 (2d Cir. 1998) (“It is true that the party opposing the admission of evidence under this Rule [803(8)(C)] has the burden of showing untrustworthiness.”))
  • Third Circuit: In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 288 (3d Cir. 1983) (“[T]urning to the Rule 803(6) proviso excluding business records when "the source of information or the method or circumstances of preparation indicate lack of trustworthiness," the court held that the burden of showing such untrustworthiness was on the party opposing admission. Placing this burden on the party opposing admission was correct.”) (citation omitted)
  • Fourth Circuit: Zeus Enterprises, Inc. v. Alphin Aircraft, Inc., 190 F.3d 238, 241 (4th Cir. 1999) (Under Rule 803(8), “The admissibility of a public record specified in the rule is assumed as a matter of course, unless there are sufficient negative factors to indicate a lack of trustworthiness, in which case it should not be admitted. The party opposing admission has the burden to establish unreliability.”) (citations omitted)
  • Fifth Circuit: Graef v. Chemical Leaman Corp., 106 F.3d 112, 118 (5th Cir. 1997) (“[T]he party opposing admission of the award, had the burden of establishing that the arbitrator’s findings were not trustworthy.”)
  • Sixth Circuit: Reynolds v. Green, 184 F.3d 589, 596 (6th Cir. 1999) (“Because records prepared by public officials are presumed to be trustworthy, the burden is on the party opposing admission to show that a report is ‘inadmissible because its sources of information or other circumstances indicated a lack of trustworthiness.’”; “Because Neal's statement [in Ombudsman Report] lacks the reliability attributable to the independent conclusions of a public official, the district court properly excluded it.”) (quoting Baker v. Elcona Homes Corp., 588 F.2d 551, 558 (6th Cir. 1978))
  • Eighth Circuit: Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594, 600-01 (8th Cir. 2005) (“Once the evaluative report is shown to have been required by law and to have included factual findings, the burden is on the party opposing admission to demonstrate untrustworthiness.”); Amtrust Inc. v. Larson, 388 F.3d 594, 599 & n.3 (8th Cir. 2004) (opponent of public record (bankruptcy trustee’s Notice of Abandonment) "did not meet the burden of establishing the Notice's untrustworthiness")
  • Ninth Circuit: United States v. Estrella-Yuan, 437 Fed. Appx. 555 (9th Cir. 2011) (“the district court properly found that Estrella–Yuan [as the opponent of the public record] did not carry his burden of proving untrustworthiness, and did not abuse its discretion in admitting the I–205 under Rule 803(8)”); (citing United States v. Loyola-Dominguez, 125 F.3d 1315, 1318 (9th Cir. 1997) (applying burden to show untrustworthiness on FRE 803(8)(B) public records lies with the opponent; stating that under public records under the exception "are presumed trustworthy, placing `the burden of establishing untrustworthiness on the opponent of the evidence'") (citing Montiel v. City of Los Angeles, 2 F.3d 335, 341 (9th Cir. 1993) (quoting Keith v. Volpe, 858 F.2d 467, 481 (9th Cir. 1988)))

Next Steps

Under the Rules Enabling Act, 28 U.S.C. § 2071-77, the next steps for the amendment include:

  • September 15, 2013: The United States Judicial Conference approved the proposed amendment to FRE 801(d)(1)(B) for transmittal to the United States Supreme Court for its review. See 28 U.S.C. § 2073(a) & (b)
  • May 1, 2014: The Supreme Court has the authority to prescribe the federal rules, subject to a statutory waiting period. See 28 U.S.C. §§ 2072, 2075. The Court “shall transmit to the Congress not later than May 1” of the year in which the proposed amendment is to take effect. See 28 U.S.C. §§ 2074(a), 2075; see also Report of the Judicial Conference Committee on Rules of Practice and Procedure to the Chief Justice of the United States and Members of the Judicial Conference of the United States (Sept. 2013)
  • December 1, 2014: Congress has a statutory period of at least seven months to act on any rules prescribed by the Supreme Court. If the Congress does not enact legislation to reject, modify, or defer the rules, they take effect as a matter of law on December 1, 2014. See 28 U.S.C. §§ 2074, 2075. With transmittal to the Supreme Court, the proposed amendment is at the sixth step of the rules amendment process.

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).

Under the proposed amendment approved by the U.S. Judicial Conference, the rules would be amended as follows:

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


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.

* * *


Draft 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 a lack of trustworthiness. While most courts have imposed that burden on the opponent, some have not. It is appropriate to impose the burden of proving untrustworthiness on the 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.

______________________________



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


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.

* * *


Draft 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 a lack of trustworthiness. The amendment maintains consistency with the proposed amendment to the trustworthiness clause of Rule 803(6).

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


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.

* * *


Draft 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 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.

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