Supreme Court Deciding Amendments On Trustworthiness Burden For FRE 803(6), FRE 803(7), FRE 803(8) By Next Week (Part VII)

The Supreme Court is considering whether to approve pending amendments to FRE 803(6), FRE 803(7) and FRE 803(8); the amendments would clarify that the opposing party would hold the burden to establish a lack of trustworthiness in the records; the Supreme Court must act by May 1, 2014, under the Rules Enabling Act

FRE 803(6) and FRE 803(7) provide for the admission of business records. FRE 803(8) permits the introduction of public records. Each rule has a "trustworthiness requirement". A proposed amendment would clarify who holds the burden of proof to show lack of trustworthiness: once the proponent of the business or public record satisfies the requirements for admission, the opposing party would hold the burden to establish a lack of trustworthiness.

Under the Rules Enabling Act, the Supreme Court must act on the proposal by May 1, 2014. After Supreme Court action, the amendment becomes law if Congress does not enact legislation to reject, modify, or defer the rules by December 1, 2014. See 28 U.S.C. §§ 2074, 2075. The transmittal of the proposed amendment to the Supreme Court represents the fifth step, out of seven steps, in the rules amendment process.

Summary Background Of The Amendment

The current language of the rules do not clarify which party bears the burden to show untrustworthiness. 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.

This amendment issue was originally noted during the restyling of the FRE. Since the restyling amendments were not intended to make substantive changes to the rules, no action was taken on the initial suggestion. See generally Preliminary Draft Of Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Criminal Procedure, and the Federal Rules of Evidence (August 2012) (explaining history).

The Judicial Conference’s Committee on Rules of Practice and Procedure (known as the “Standing Committee”) explained the need for the amendments last year:

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.

Minutes, at 16 (Sept. 12, 2013) (published with the Advisory Committee on Civil Rules Meeting Materials, at 82 (Nov. 7-8, 2013)).

Current Cases

As previously noted in the Federal Evidence Blog, there is some disagreement among the courts 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)))

Supreme Court Action By May 1, 2014

In September 2013, the Judicial Conference of the United States approved the amendments to FRE 803(6), FRE 803(7), and FRE 803(8). By May 1, 2014, the Supreme Court will decide whether to approve the recommendation, modify it or reject it. If the Court approves the amendments, they will become law, unless Congress otherwise acts prior to December 1, 2014, under the Rules Enabling Act.

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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