The Supreme Court has approved four amendments to the Federal Rules of Evidence that will take effect on December 1, 2014 unless Congress takes another action. The Rules altered? Federal Rule of Evidence 801(d)(1)(B) and Federal Rules of Evidence 803(6), (7), and (8).
Federal Rule of Evidence 801(d)(1)(B) currently provides that a statement is not hearsay if it
(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
(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….
In other words, currently, the only way that a prior consistent statement can be introduced is if the opposing party claims that a witness’s trial testimony is a recent fabrication based upon a recent improper influence of motive. For example, the defense might claim that a witness for the prosecution is lying so that he would get the benefit of a favorable plea bargain. Or the prosecution might claim that a defense witness was bribed by the defendant.
No, however, any impeachment of a witness will allow for the admission of his prior consistent statement. Such impeachment could include: (1) pointing out the the witness has a bad memory; (2) calling an impeachment witness to testify that the witness has a reputation for dishonesty; and (3) impeaching a witness through a prior conviction.
Meanwhile, Federal Rules of Evidence 803(6), (7), and (8) currently create hearsay exceptions for
(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) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.
(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.
The amendments to each of these Rules are less sweeping, with each relating to the last subsection of each Rule. Basically, the question that the amendments resolve relates the question of which party bears the burden of proving lack of trustworthiness. And, as the amendments make clear, it is the opponent that bears the burden of proof. Here are the amended final subsections of each Rule:
(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
(C) the opponent does not show that the possible source of information or other indicate a lack of trustworthiness.
(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.