On April 25, 2014, the Supreme Court approved four amendments to the Federal Rules of Evidence that will take effect on December 1, 2014, unless Congress takes another action prior to that time. These amendments affect Rules 801(d)(1)(B) and 803(6), (7), and (8) of the Federal Rules of Evidence.
Regarding Federal Rule of Evidence 801(d)(1)(B), the current Rule provides that a statement is not hearsay if it “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.” Amended Federal Rule of Evidence 801(d)(1)(B) will now provide that a statement is not hearsay under the following circumstances:
(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; …
Therefore, while current Rule 801(d)(1)(B) provides that a prior consistent statement can only be introduced as non-hearsay if the opposing party claims that a witness’s trial testimony is a recent fabrication based upon a recent improper influence of motive, amended Rule 801(d)(1)(B) now allows for the admission of witness’s prior consistent statement for any impeachment purposes.
The amendments to Federal Rules of Evidence 803(6)–Records of a Regularly Conducted Activity), 803(7)–Absence of a Record of a Regularly Conducted Activity, and 803(8)–Public Records, resolve an issue in the case law concerning which party bears the burden to establish the untrustworthiness of business or public records. Amended Rule 803 clarifies that this burden is held by the opponent to the evidence. Under the amendments, a business or public record is admissible (assuming all other requirements of the Rule have been met) if “the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.”
The Supreme Court’s amendments to Rules 801 and 803 are available at: