FRE 804(b)(3) Amendment Legislative History Page

2010 Amendment To FRE 804(b)(3) Legislative History Page

On December 1, 2010, FRE 804(b)(3) was amended to apply the corroborating circumstances requirement to all declarations against penal interest offered in criminal cases. This requirement previously applied to a statement introduced under the rule by the defendant. The amendment extended the requirement to the admission of a declaration against interest statement introduced by the government.

On April 28, 2010, the U.S. Supreme Court transmitted the proposed amendment to the Congress for its review, which was adopted on December 1, 2010, in the absence of any congressional action.

2010 Amendment to FRE 804(b)(3)


The new amendment to FRE 804(b)(3) divides the rule into two subsections:

Rule 804. Hearsay Exceptions; Declarant Unavailable

(b) Hearsay exceptions. -- The following are not excluded by the hearsay rule if the declarant is unavailable as a witness

* * *


(3) Statement against interest. A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

_____________________

Notes of Advisory Committee on Rules—2010 Amendment

Subdivision (b)(3). Rule 804(b)(3) has been amended to provide that the corroborating circumstances requirement applies to all declarations against penal interest offered in criminal cases. A number of courts have applied the corroborating circumstances requirement to declarations against penal interest offered by the prosecution, even though the text of the Rule did not so provide. See, e.g., United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978) (“by transplanting the language governing exculpatory statements onto the analysis for admitting inculpatory hearsay, a unitary standard is derived which offers the most workable basis for applying Rule 804(b)(3)”); United States v. Shukri, 207 F.3d 412 (7th Cir. 2000) (requiring corroborating circumstances for against-penal-interest statements offered by the government). A unitary approach to declarations against penal interest assures both the prosecution and the accused that the Rule will not be abused and that only reliable hearsay statements will be admitted under the exception.

All other changes to the structure and wording of the Rule are intended to be stylistic only. There is no intent to change any other result in any ruling on evidence admissibility.

The amendment does not address the use of the corroborating circumstances for declarations against penal interest offered in civil cases.

In assessing whether corroborating circumstances exist, some courts have focused on the credibility of the witness who relates the hearsay statement in court. But the credibility of the witness who relates the statement is not a proper factor for the court to consider in assessing corroborating circumstances. To base admission or exclusion of a hearsay statement on the witness’s credibility would usurp the jury’s role of determining the credibility of testifying witnesses.

Changes Made After Publication and Comments

The rule, as submitted for public comment, was restyled in accordance with the style conventions of the Style Subcommittee of the Committee on Rules of Practice and Procedure. As restyled, the proposed amendment addresses the style suggestions made in public comments.

The proposed Committee Note was amended to add a short discussion on applying the corroborating circumstances requirement.

A prior proposed amendment to FRE 804(b)(3) was recommended by the U.S. Judicial Conference but declined in 2004 by the Supreme Court. For more on this amendment, see the 2004 Proposed FRE 804(b)(3) Amendment Legislative History Page.

The chronology of the development and consideration of the amendment to FRE 804(b)(3) is noted in the table below:

DateAction
April 12-13, 2007 Minutes of the Meeting of the Advisory Committee on Evidence Rules, at 22-23, notes that the committee “directed the Reporter to prepare a memorandum for the next meeting, on whether it is necessary to amend Rule 804(b)(3) to require that the government provide corroborating circumstances guaranteeing trustworthiness before a declaration against penal interest can be admitted against an accused.”
November 16, 2007 Minutes of the Meeting of the Advisory Committee on Evidence Rules report:

  • The Committee confirmed interest in an amendment to FRE 804(b)(3)
  • A representative of the Department of Justice requested the Committee not act on an amendment yet and agreed to provide information at the next meeting
Dec. 1, 2007 Report of the Advisory Committee on Evidence Rules noting the Nov. 16, 2007 meeting of the Advisory Committee on Evidence Rules considered possible amendment to FRE 804(b)(3) to provide a uniform requirement for establishing corroborating circumstances guaranteeing trustworthiness
Jan. 14-15, 2008 Minutes of the Committee On Rules Of Practice And Procedure noting that the Advisory Committee On Evidence Rules is reviewing an amendment to FRE 804(b)(3)
May 12, 2008
  • Report of the Advisory Committee on Evidence Rules Advisory Committee on Evidence Rules recommending the FRE 804(b)(3) amendment
  • Blog Post: Proposed Amendment To FRE 804(b)(3) (Part I)
June 9-10, 2008
August 8, 2008
  • The U.S. Judicial Conference Committee on Rules of Practice and Procedure issued a draft amendment to FRE 804(b)(3) for public comment. The public comment period ends by February 17, 2009. See Memorandum to Bench and Bar (Aug. 8, 2008).
  • Blog Post: Public Comment Period Opens On FRE 804(b)(3) Amendment (Part III)
January 2009 Two public hearings which had been scheduled to consider the proposed amendment to FRE 804(b)(3) by the Advisory Committee on Evidence were cancelled. The first hearing was set to be held in San Antonio, Texas, on January 13, 2009, and the second in Atlanta, Georgia, on January 26, 2009.
Aug. 8, 2008 - Feb. 17, 2009Only a few public comments were received on the proposed amendment to FRE 804(b)(3):

  • David F. Binder (questioning why “all statements that happen to be against the declarant's penal interest ‘not admissible’ in a criminal case unless corroborating circumstances clearly indicate their trustworthiness”; recommending new language for last sentence of FRE 804(b)(3): “A statement tending to expose the declarant to criminal liability, when offered in a criminal case, is included within this exception from the hearsay rule only if corroborating circumstances clearly indicate the trustworthiness of the statement”)
  • Professor R. Friedman (Professor Friedman requested an opportunity to testify at the Evidence Rules Committee's planned January 26 session in Atlanta. Committee staff responded that the hearing had been canceled because no other requests to testify had been received)
  • Professor P. Leonard (endorsing some of the observations of Mr. Binder, but proposing alternate wording to correct any possible misconception arising from the wording of the proposed amendment. The professor also discussed the impact of Crawford v. Washington on the amended rule, particularly how the rule would interact with the requirements of Williamson v. United States)
  • Federal Magistrate Judges Association (supporting the concept embodied in the amendment, but suggest adding text to resolve any ambiguity concerning whether the amendment is intended to apply only to criminal trials as opposed to all criminal proceedings)
  • Blog Post: Public Comment Period Closes On Amendment To FRE 804(b)(3) (Part VI)
  • Blog Post: Public Comment On Amendment To FRE 804(b)(3) (Part V)
  • Blog Post: Public Comments Pending On Amendment To FRE 804(b)(3) (Part IV)
April 23-24, 2009
  • The Advisory Committee on Evidence Rules, of the U.S. Judicial Conference, recommended a proposed amendment to Evidence Rule 804(b)(3). See Report of the Advisory Committee on Evidence Rules (May 6, 2009) (beginning at p. 100).
  • Blog Post: Amendment To FRE 804(b)(3) (Declarations Against Interest) Evidence Rules Committee Recommends FRE 804(b)(3) Amendment (Part VII)
June 1-2, 2009
  • Committee on Rules of Practice and Procedure adopts recommendation to amend FRE 804(b)(3), as urged by the Advisory Committee on Evidence Rules, of the U.S. Judicial Conference. See Report of the Advisory Committee on Evidence Rules (May 6, 2009) (beginning at p. 100).
  • Blog Post: FRE 804(b)(3) Amendment (Declarations Against Interest) Advances To The U.S. Judicial Conference (Part VIII)
September 15, 2009
  • The United States Judicial Conference, an administrative body made up of the Chief Justice and of the chief judges of each circuit and representatives of the district judges of each circuit (see 28 U.S.C. § 2073(a) & (b)) approved the proposed amendment to FRE 804(b)(3). See Excerpt From The Report Of The Judicial Conference (Recommending Approval of the Amendment to FRE 804(b)(3)); 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. 2009) (beginning at p. 27; and including other proposed amendments).
  • Blog Post: Amendment To FRE 804(b)(3) (Declarations Against Interest) Approved By Judicial Conference To FRE 804(b)(3) (Declarations Against Interest) Subject To Congressional Review (Part IX)
April 28, 2010
  • The Supreme Court transmitted the amendment to FRE 804(b)(3) to the Congress, which remains subject to congressional review by December 1, 2010.
  • 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 must transmit proposed amendments to Congress by May 1 of the year in which the amendment is to take effect. 28 U.S.C. §§ 2074, 2075; see also 156 Cong. Rec. S3006 (April 30, 2010) (Ex. Comm. 5679); 156 Cong. Rec. H3481 (daily ed. May 13, 2010) (Ex. Comm. 7475); H. Doc. No. 111—113.
  • Blog Post: Supreme Court Approves Amendment To FRE 804(b)(3) (Declarations Against Interest) Subject To Congressional Review (Part X)
December 1, 2010
  • The amendment was adopted in the absence of any congressional action.
  • Under the Rules Enabling Act, the 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. See 28 U.S.C. §§ 2074, 2075.
  • Blog Post: New FRE Amendment To FRE 804(b)(3) Takes Effect (Part XI)



Blog Posts On The 2010 Amendment to FRE 804(b)(3)

Blog posts from the Federal Evidence Blog discussing the 2010 amendment to FRE 804(b)(3) are available here.

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