September 2014: Trial Practice Update
Amendments to the Federal Rules of Evidence on Hearsay Issues. The federal hearsay rules will undergo amendments later this year to (1) expand the scope of prior consistent statements such that they can be admitted as substantive evidence (that is, not to simply rehabilitate a witness); and (2) confirm the opponent of a business or public record bears the burden of showing lack of trustworthiness to get an otherwise-admissible record excluded under Rule 803. The amendments, endorsed by the Supreme Court earlier this year, will automatically become law on December 1, 2014 unless Congress takes affirmative action to override them.
Federal Rule of Evidence (“FRE”) 801. FRE 801 is being amended to change how jurors can use prior consistent statements. Under the current rule, a fact-finder can only consider such statements for their truth if offered to rebut a charge that the declarant recently fabricated his testimony or acted from a recent improper influence or motive in testifying. The current version of the rule reads as follows in relevant part:
(d) Statements That Are Not Hearsay. A statement that meets the following
conditions is not hearsay: (1) A Declarant-Witness’s Prior Statement. The
declarant testifies and is subject to cross-examination about a prior
statement, and the statement: . . . (B) is consistent with the declarant’s
testimony and is offered to rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent improper influence
or motive in so testifying . . . .
If the statement does not counteract a charge of recent fabrication or improper influence, that statement can only be offered to rehabilitate the witness’s testimony by showing consistency between his in-court and out-of-court statements; it cannot not be offered “substantively” to prove the truth of what was asserted in the prior consistent statement. See generally Seeking Consistency for Prior Consistent Statements: Amending Federal Rule of Evidence 8-1(d)(1)(B), 46 Conn. Law Rev. 3 (Feb. 2014); FRE 801(d) Advisory Committee Notes to 2014 Amendments (discussing “premotive” prior consistent statements under existing law, and that “[t]he intent of the amendment is to extend substantive effect to consistent statements that rebut other attacks on a witness—such as charges of inconsistency or faulty memory.”).
FRE 801(d)(1)(B) will be amended to add the italicized text below:
(d) Statements That Are Not Hearsay. A statement that meets the following
conditions is not hearsay: (1) A Declarant-Witness’s Prior Statement. The
declarant testifies and is subject to cross-examination about a prior
statement, and the statement: . . . (B) is consistent with the declarant’s
testimony and is offered: (i) to rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent improper influence or
motive in so testifying; or (ii) to rehabilitate the declarant’s credibility as a
witness when attacked on another ground . . . .
With this new language, prior consistent statements need not rebut a charge of recent fabrication to be admissible for their truth. Thus, for example, a prior consistent statement offered to rebut a claim of longstanding bias would come in for its truth under the revised rule.
Federal judges have not expressed ringing endorsements of this amendment. When polled, 52% of judge respondents indicated that they believed the amendment was a “negative result.” See Survey of District Court Judges on a Proposed Amendment to Federal Rule of Evidence 801(d)(1)(B) Concerning Prior Consistent Statements, Federal Judicial Center, at 12 (March 2, 2012) (“Rule 801(d)(1)(B) Survey”). At the same time, 69% of these polled judges also expressed belief that the admission of prior consistent statements for substantive purposes would have “little practical effect on juror deliberations”—apparently believing that jurors are unable or unwilling to adhere to the limiting instructions on use of rehabilitative statements under the current rule. See id. at 6-8.
FRE 803. FRE 803 is being changed to clarify that the opponent of a business or public record—which otherwise qualifies for admission under the hearsay rules—must show that the record is not trustworthy in order to keep it out of evidence. At least one court had interpreted these rules to require the party offering such a record to establish its trustworthiness as a precondition to admissibility. See Report of the Advisory Committee on Evidence Rules at (May 7, 2013) available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/EV05-2013.pdf.
The current versions of FRE 803(6)-(8) will be amended to include the following language (in italics):
(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) the opponent does not show that the
source of information or the method or circumstances of preparation indicate a lack
of trustworthiness.
(While we provide only the full text of the FRE 803(6), the italicized clause is to be similarly appended to FRE 803(7) and (8).) In proposing this amendment, the Advisory Committee expressed the view that the other requirements of the rules demonstrate the basic reliability of record-related evidence in the absence of any evidence to the contrary. See FRE 803(6) Advisory Committee Notes to 2014 Amendments. These changes to FRE 803(6)-(8) should re-establish uniformity among federal courts on the admissibility of business and public records over hearsay objections, and avoid placing an undue burden on a proponent of such evidence to independently establish the trustworthiness of each such record.