Restyling The Federal Rules of Evidence: Final Drafts Completed For FRE 801 to 1103 (Part III)

The final set of drafts for FRE 801 to 1103 (to be re-designated as 1104) have now been completed. The entire set of proposed restyled rules will be sent to the Standing Committee for its review in August 2009

The Advisory Committee on Evidence Rules has completed is its efforts to “restyle” the FRE, which would include non-substantive modifications to the rules. On April 23-24, 2009, the Advisory Committee approved proposed restyling for FRE 801-1104. At previous meetings the committee completed restyling for FRE 101-706. The restyled rules are intended to include non-substantive changes to the rules of evidence. The effort to restyle the evidence rules is part of a larger project to restyle all of the federal rules. The Standing Committee will be asked to issue the restyled rules for public comment later in August 2009.

Example Of Restyled FRE 801(d)(2)

One example of the proposed restyled rules concerns FRE 801(d)(2) (with the current rule on the left and draft restyled rule on the right):

(d) Statements which are not hearsay.--A statement is not hearsay if--
(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay
(2)An Opposing Party's Statement The statement is offered against an opposing party and

(A) was made by the party in an individual or representative capacity,

(B) is one that the party adopted or the party accepted as true,

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed, or

(E) was made by the party's co-conspirator during the conspiracy and to further it

The statement must be considered but does not by itself establish the declarant's authority under (C), the existence or scope of the relationship under (D), or the existence of the conspiracy or participation in it under (E).

The currently available drafts of the restyled rules are provided at the following links:

  1. FRE 101-415 (Appendix C to the Evidence Committee Report on May 12, 2008)
  2. FRE 501-706 (Report of the Advisory Committee on Evidence Rules (Oct. 23-24, 2008))
  3. FRE 801-1104 (Report of the Advisory Committee on Evidence Rules (April 23-24, 2009))

The Federal Evidence.Blog will continue to monitor the progress of the FRE restyling proposal. For more information, along with a time line and links to many of the reports considered during the drafting and review process, see the Restyling FRE Legislative History Page

Prior Blog Posts

For prior posts on the restyling of the FRE,
see Part I, and Part II.

Federal Rules of Evidence