2004 Proposed FRE 804(b)(3) Amendment Legislative History Page

2004 Proposed FRE 804(b)(3) Amendment Legislative History Page

In 2004, the U.S. Supreme Court declined an amendment recommended by the U.S. Judicial Conference to FRE 804(b)(3) (recommending that the government show "particularized guarantees of trustworthiness" when a declaration against penal interest is offered against an accused."), after the decision in Crawford v. Washington, 541 U.S. 36 (2004). After the Supreme Court sent back the proposed amendment to FRE 804(b)(3), the Advisory Committee on Rules of Evidence decided to defer any consideration of an amendment to a hearsay exception until the implications of Crawford are understood.


In 2001, an initial proposal emerged to amend FRE 804(b)(3) (Statement Against Interest). The table below provides a chronology of the proposed amendment along with links to reports or other documentary materials, where available:

DateAction
Dec. 1, 2001 Advisory Committee on Evidence Rules proposes amendment to FRE 804(b)(3), which was released for public comment
April 19, 2002 Advisory Committee on Evidence Rules agrees to revise proposed amendment to FRE 804(b)(3) for release for public comment
May 1, 2002Advisory Committee on Evidence Rules unanimously agrees to revise a proposed amendment to FRE 804(b)(3) and unanimously recommends that the revised proposal be released for a new round of public comment
May 1, 2002 Report of the Advisory Committee on Evidence Rules to the Committee On Rules Of Practice and Procedure of the Judicial Conference of the United States recommending revisions to FRE 804(b)(3) and a new round of public comment
August 2002 Preliminary Draft of Proposed Amendments to the Federal Rules of Practice and Procedure
Oct. 18, 2002 A short report was given on the status of pending amendments: In April 2002, the proposed amendment to Rule 804(b)(3) was substantially revised and then submitted to the Standing Committee for approval and release for a new round of public comment, which was adopted unanimously; while no public comments had been received, a public hearing was set for January 27, 2003
Feb. 15, 2003 Public comment period ends
April 25, 2003 Advisory Committee on Evidence Rules holds a public hearing on the proposed amendment to FRE 804(b)(3) and hears from two witnesses: Professor Richard Friedman and David Romine; Committee unanimously approves proposed amendment to FRE 804(b)(3), after adopting two modifications
May 5, 2003Advisory Committee on Evidence Rules approves proposed amendment to FRE 804(b)(3), unanimously recommending that the Standing Committee approve and forward it to the Judicial Conference; a summary of public comments was included with the report
May 5, 2003Report of the Advisory Committee on Evidence Rules to Standing Committee on Rules of Practice and Procedure (from Honorable Jerry E. Smith, Chair Advisory Committee on Evidence Rules, to Honorable Anthony J. Scirica, Chair Standing Committee on Rules of Practice and Procedure
Sept. 2003Report of the Judicial Conference Committee on Rules of Practice and Procedure summarizing proposed amendments
Sept. 2003Judicial Conference approves the amendment at its annual meeting and transmits the amendment to the U.S. Supreme Court; Excerpt From 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; Redline version of proposed FRE 804(b)(3) amendment
April 29 & 30, 2004 After the Supreme Court sent back the proposed amendment to FRE 804(b)(3) following the decision in Crawford v. Washington, 541 U.S. 36 (2004), the Advisory Committee on Evidence Rules decided to defer any consideration of an amendment to a hearsay exception until the implications of Crawford are more fully understood
Dec. 1, 2005 Report of the Advisory Committee on Evidence Rules

  • “At its Fall 2005 meeting the Committee considered whether to revive its proposal to amend Evidence Rule 804(b)(3), the hearsay exception for declarations against penal interest. The Committee’s previous proposal was approved by the Judicial Conference, but the Supreme Court remanded it for reconsideration in light of the intervening decision in Crawford v. Washington, 541 U.S. 36 (2004). The Committee’s Reporter suggested revisions to the previously proposed amendment to address some of the concerns about testimonial evidence raised in Crawford. The Committee determined that the proposal should not be adopted at this point, because further time is necessary to determine the meaning and application of Crawford. Deferring the proposal was considered especially prudent because of the Supreme Court’s recent grant of certiorari in two cases to determine the correct scope of the term ‘testimonial,’ the definition of which was left open in Crawford.” Report, at 3-4.

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