The Advisory Committee on the Federal Rules of Evidence
met on May 4 and 5, 1995 at the federal courthouse in Foley
Square in the Southern District of New York.
The following members of the Committee were present:
Circuit Judge Ralph K. Winter, Jr., Chair
Circuit Judge Jerry E. Smith
District Judge Fern M. Smith
Federal Claims Judge James T. Turner
Dean James K. Robinson
Professor Kenneth S. Broun
Gregory P. Joseph, Esq.
Fredric F. Kay, Esq.
John M. Kobayashi, Esq.
Mary F. Harkenrider, Esq., and Roger Pauley, Esq.,
Department of Justice
Professor Margaret A. Berger, Reporter
Chief Judge Covington and Judge Shadur were unable to
Also present were:
Honorable Alicemarie H. Stotler, Chair, Committee
on Rules of Practice and Procedure
Professor Daniel R. Coquillette, Reporter, Committee on Rules of Practice and Procedure
District Judge David S. Doty, Liaison to the Civil Rules Committee
Circuit Judge C. Arlen Beam
Peter G. McCabe, Esq., Secretary, Committee on Rules of Practice and Procedure
John K. Rabiej, Esq., Administrative Office
Paul Zingg, Esq., Administrative Office
Judge Winter called the meeting to order at 8:30 a.m. He
reported to the Committee on a number of developments.
The Standing Committee. Judge Winter informed the Committee
that the Standing Committee had voted to send out the amendments
to Rules 103 and 407 for public comment. He also reported that
some members of the Standing Committee feared that the amendment
to Rule 103 might prove a trap for lawyers, and had expressed a
preference for a default rule that would relieve the losing
attorney from having to renew the motion at trial. A motion to
revise the amendment accordingly was defeated, but it was agreed
that the Committee Note to Rule 103 would indicate that such an
alternate version had been considered and rejected.
Congress. Judge Winter reported that he met with a number
of persons on the Hill with regard to Rules 413-415. Staff
counsel to Senator Biden indicated that the Democrats would have
no objection to the Evidence Committee redraft. Judge Winter also
met with four Republican staffers and suggested to them that
admissibility should be limited to conduct resulting in a
conviction. He reported that the House side had been surprisingly
receptive. The Senate staffers acknowledged that the Evidence
Committee draft might well be an improvement on the congressional
version but that a revision of Rules 413-415 could not be
accomplished through the Crime Bill. If at all, the Committee's
draft would have to be presented as a technical amendment at the
request of Congress; it might possibly pass "on consent." The
House might perhaps hold hearings. Although Judge Winter was
somewhat encouraged by the meetings, he thought that at this time
there was less than a 50% chance that Congress would take any
action to modify Rules 413-415.
At these meetings, Judge Winter also discussed the
congressional initiative to amend Rule 702. He reported that he
had advised the participants that the Committee viewed Daubert as
a good decision with great potential and that an attempt to
codify the opinion at this point would create problems. The
Committee agreed that it would be unwise to react to each
congressional proposal to amend a rule of evidence by submitting
its own preferred redraft. The Committee decided to take no
action on Rule 702 at this time.
The Committee then returned to its consideration of the
Rule 803(4). The Committee agreed to recommend not amending
Rule 801(d)(2). At the previous meeting, the Committee had
directed the Reporter to prepare a draft of Rule 801(d)(2)(E)
that would deal with issues raised by the Supreme Court's
decision in Bourjaily v. United States, and to also consider the
effect of Bourjaily on Rules 801(d)(2)(C) and (D). The Reporter
presented a number of alternate proposals for either amending
each of the subdivisions separately or for language that would
apply to all three.
The Committee then engaged in an extensive discussion.
Professor Saltzburg, who had not been at the previous meeting,
urged the Committee to codify pre-Bourjaily practice as the
better rule. Professor Broun also expressed reservations about
codifying any part of Bourjaily and extending its doctrine to
civil cases. Dean Robinson suggested a corroboration requirement,
such as appears in Rule 804(b)(3) instead of an independent
evidence requirement. Mr. Kobayashi was in favor of a requirement
that would explicitly require the trial judge to examine the
evidence offered pursuant to Rule 104(a) to establish the
requisite preliminary facts and to make a finding as to whether
the conditions for the exception are satisfied.
The Committee voted on three alternative approaches to Rule
1. To not amend the rule - 3 votes
2. To add an independent evidence requirement - 7 votes
3. To codify the common law rule requiring that the
statement must be set aside in making the preliminary
determination - 2 votes.
The Committee decided not to draft the amendment in terms of
corroboration but rather to specifically state that the statement
could be considered but would not suffice in the absence of some
independent evidence. The Committee then voted to extend this
approach to subdivisions (C) and (D). It also agreed that it
would review and vote on the text of the proposed amendment as
well as the accompanying Committee Note at the next day's
The Committee also discussed whether a personal knowledge
requirement should be added to either Rule 801(d)(2)(C) or Rule
801(d)(2)(D). The Committee declined to do so. Members of the
Committee suggested that it was not unfair to shift to the
opponent the burden of explaining to jurors how probative value
was affected by the absence of personal knowledge, and that in
some cases in which the declarant clearly lacked personal
knowledge Rule 403 might be used to exclude the evidence.
Rule 803(3). The Committee had asked the Reporter to prepare
a memorandum on the Hillmon doctrine, directed to the question of
whether the Rule ought to be amended to prohibit evidence of
declarant's intent to commit a future act when the act could not
be performed without the participation of the party against whom
the evidence is offered. The prime example that has disturbed
some commentators is the homicide victim's statement that he or
she is intending to meet the defendant. After discussion, the
Committee decided not to amend the rule.
Rule 803(8). The Committee first discussed whether to amend
the rule to state explicitly that evidence which would be barred
by subdivisions (B) and (C) when offered against an accused may
be admissible pursuant to another hearsay exception, or whether
to adopt the reasoning of a Second Circuit opinion, United States
v. Oates, 560 F.2d 45 (2d Cir. 1977), that barred such evidence
absolutely. The Committee discussed the Reporter's memorandum
about how the Circuits are handling this issue. It appears that
routine evidence of governmental activity, such as recording
license plate numbers, that falls literally within the
prohibitions of subdivisions (B) and (C) is admitted by most
circuits pursuant to Rule 803(5). Furthermore, the circuits also
admit some evidence barred by Rule 803(8) pursuant to Rule 803(6)
when the declarant is available to testify. These cases do not
suggest that the courts are permitting the government to put in
crucial aspects of its case through hearsay testimony. The
Committee concluded that there was no need to amend the rule.
The Committee then discussed whether Rule 803(8)(B) should
be amended to permit a criminal defendant to offer against the
government evidence which falls within the scope of the
exception. Rule 803(8)(C) specifically provides that the evidence
made admissible by that provision is admissible "against the
Government in criminal cases." The omission in Rule 803(8)(B) may
have occurred as a drafting error when Congress revised the rule.
The few cases that have considered the issue have allowed the
defendant to introduce evidence that otherwise satisfies
subdivision (B). Consequently, the Committee saw no need to amend
Waiver by misconduct. The Committee next considered whether
it should codify the generally recognized principle, that hearsay
statements become admissible on a waiver by misconduct notion
when the defendant deliberately causes the declarant's
unavailability. The Committee debated a number of issues: the
degree to which defendant must have participated in procuring the
declarant's unavailability; the burden of proof that the
government must meet in proving the defendant's misconduct; the
consequences of a waiver finding; and the appropriate rule of
evidence in which to place such a provision. The Committee agreed
that codifying the waiver doctrine was desirable as a matter of
policy in light of the large number of witnesses who are
intimidated or incapacitated so that they do not testify.
Consequently, the Committee chose a version of the rule that
would not require having to show that the defendant actively
participated in procuring the declarant's unavailability.
Acquiescence will suffice. In addition, the Committee rejected
imposing a "clear and convincing" burden of proof on the
prosecution, as is required in the Fifth Circuit, in favor of the
usual preponderance of the evidence standard used in connection
with preliminary questions under Rule 104(a) even when a
constitutional rule is at issue. The federal circuits other than
the Fifth, currently use a preponderance standard with regard to
finding waiver by misconduct.
The Committee agreed that the consequence of a finding of
waiver is that the declarant's hearsay statement becomes
admissible to the extent that it would have been admissible had
the declarant testified at trial. For example, hearsay contained
in the hearsay statement is not admissible unless it satisfies
some other hearsay exception, the declarant must have had
personal knowledge, and the evidence may be subject to exclusion
under Rule 403.
The Committee debated at length where to place this new
exception. Some members of the Committee argued in favor of Rule
801 because subdivision (d) of that rule contains a number of
provisions that are distinct from the traditional class
exceptions dealt with in Rules 803 and 804. Furthermore,
statements admissible on a waiver theory resemble admissions in
being admissible only against the defendant and not against the
world. On the other hand, other members were concerned that
placement in the rule containing admissions would suggest that a
personal knowledge requirement does not apply. In addition, the
unavailable declarant is the subject of Rule 804.
In the course of discussing appropriate placement of the
waiver principle, some members also expressed concern that adding
the provision to Rule 804 would upset that rule's numbering
scheme. The new provision clearly would have to appear before the
residual exception in subdivision (b)(5) which is entitled,
"Other exceptions." On the other hand, numbering the new
provision "(b)(5)" would require renumbering the residual
exception as "(b)(6)." This possibility disturbed some members
of the Committee who felt that this would cause problems with
computerized searches. Furthermore, the Committee realized that
this renumbering problem would arise whenever a new exception was
added to either Rule 803 or 804. Judge Winter suggested that the
two residual exceptions should be combined and moved into a new
Rule 807. No change in meaning would be intended by this
transfer; it would be done solely to leave room for new
exceptions and to minimize the impact on computer research when a
new exception is added. The Committee adopted this suggestion.
Mr. McCabe then informed the Committee that when a provision
is moved out of a Federal Rule its number is not reassigned to
new material that is added to the rule from which it was removed.
The Committee agreed that (b)(5) should remain blank in Rule 804
and that the waiver provision would be numbered Rule 804(b)(6).
Rule 804(b)(1). The Reporter had been asked to advise the
Committee about judicial interpretations of the "predecessor in
interest" provision. The Reporter informed the Committee of a
number of cases, particularly in the Sixth Circuit, that hold
that the provision is satisfied when the party against whom the
evidence was offered at the first proceeding had a similar motive
and opportunity to cross-examine as the party against whom the
evidence is now being offered. Such an interpretation essentially
renders superfluous the "predecessor in interest" provision. This
approach has, however, been utilized almost exclusively in
asbestos cases to admit deposition testimony given by the medical
director of one manufacturer against a different manufacturer. It
appears likely that the evidence could have been admitted instead
pursuant to the residual hearsay exception.
A second possible issue that arises with regard to the
"predecessor in interest" requirement is whether it applies in a
criminal case. Dictum in one circuit suggests that under
specialized circumstances such evidence might be admitted against
a criminal defendant, and there is some uncertainty expressed in
the cases as to whether evidence may be offered against the
government as a "predecessor in interest." There is no
indication, however, that these cases are causing problems for
the courts or litigants.
The Committee agreed not to amend Rule 804(b)(1).
Rule 804(b)(3). The Reporter had been asked to look at cases
construing the corroboration requirement for exculpatory
declarations against interest. The Committee was particularly
interested in determining if the requirement was being
interpreted too rigidly, and if a similar provision ought to be
added for inculpatory statements. The Reporter distributed a
number of recent cases to the Committee, and the Committee
concluded that the corroboration requirement did not seem to be
causing difficulties. Furthermore, in light of the Supreme
Court's recent opinion in Williamson v. United States, 114 S.Ct.
2431 (1994), which restricted the use of inculpatory declarations
against interest, the Committee saw no need to extend the
corroboration requirement to inculpatory declarations at this
Articles 9 and 10. The Committee had asked the Reporter to
consider a number of issues with regard to these two articles.
The Committee agreed that the definition of "writings and
recordings" that appears in Rule 1001(1) does not have to be
added to Article 9. Rule 901(b) which specifically states that it
is illustrating and not limiting methods of authentication is
sufficiently flexible to deal with all of the items covered by
the Rule 1001 definition.
The Committee also agreed that the certification requirement
provided for foreign business records in 18 U.S.C. §3502(a) ought
not to be extended to domestic records. In the case of domestic
records, litigants will invariably handle authentication issues
by stipulation except in instances in which a problem exists.
When there is a problem and the witnesses are available in the
United States they ought to be produced; allowing authentication
by certification would be inappropriate.
Two issues were presented with regard to Rule 1006. 1)
whether the rule should be clarified to state that summaries
satisfying the rule will ordinarily be sent to the jury room, and
2) whether the text should be amended to explain that Rule 1006
does not apply to summaries that recapitulate evidence that has
otherwise been admitted. The Committee decided not to propose an
amendment to Rule 1006.
Rule 104. The Committee had determined not to consider
possible amendments to Rule 104 until it was finished with its
survey of the articles of the Federal Rules of Evidence other
than Article 5. Now that the Committee had completed that agenda,
it agreed that no amendment to Rule 104 was required.
Rape counselor privilege. The Crime Bill required the
Judicial Conference to report to the Attorney General on the
advisability of enacting a rape counselor privilege for the
federal courts. The Committee agreed, however, to await the
Attorney General's study as suggested by Ms. Harkenrider at the
October 1994 meeting. A subcommittee consisting of Judge Fern
Smith, Professor Broun, Ms. Harkenrider, Mr. Joseph and the
Reporter analyzed rape counselor provisions that are presently in
effect in twenty-four states. After a conference call among
members of the subcommittee, Mr. Joseph drafted a qualified
privilege that contained those features that the subcommittee
considered least objectionable.(1) No one on the subcommittee,
however, was in favor of recommending that a rape counselor
privilege ought to be enacted for the federal courts. The
Committee agreed with the subcommittee. In particular, members
thought it would be inappropriate to have a rape counselor
privilege as the only specifically codified privilege. especially
in light of the case load of the federal courts which rarely
includes rape cases. Consequently, no recommendation to enact a
rape counselor privilege will be made.
Review of proposed amendments and notes. Before the
Committee adjourned, the amendments and proposed Committee Note
to Rule 801(d)(2) and 804(b)(6) were distributed. The Committee
unanimously voted to send them to the Standing Committee. The
Committee also approved combining and transferring the text of
the residual exceptions in Rule 803(24) and 804(b)(5), and
directed the Reporter to add a Committee Note stating that no
change in meaning was intended.
Margaret A. Berger
Professor of Law
1. It provided:
(a) Sexual assault counselors may not be compelled to testify about any opinion or information received from or about the victim without the consent of the victim. However, a counselor may be compelled to identify or disclose information if the court determines that the public interest and the need for the information substantially outweigh any adverse effect on the victim, the treatment relationship, and the treatment services if disclosure occurs.
(b) "Sexual assault counselor" for the purpose of this
rule means a licensed medical professional, a licensed
psychotherapist, or a person who has undergone at least [20
- 40] hours of counseling training and works under the
direction of a supervisor in an organization or institution,
or a division of an organization or institution, whose
primary purpose is to render advice, counseling, or
assistance to victims of sexual assault.
An alternate version of subdivision (a) was also suggested:
A victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made to a sexual assault counselor unless the court determines that the public interest and the need for the information substantially outweigh any adverse effect on the victim, the treatment relationship, and the treatment services if disclosure occurs.