Texas Supreme Court Adopts Restyled Evidence Rules

The Texas Supreme Court recently announced that it has adopted revisions to the Texas Rules of Evidence. The revisions are intended to mirror the recent style revisions to the Federal Rules of Evidence. As with the Federal Rules, the revisions to the Texas Rules are intended to make them easier to read and understand.

According to the Court, only two substantive changes have been made:

• Amendments to Tex. R. Evid. 511 align Texas law with Fed. R. Evid. 502 on waiving privilege by voluntary disclosure.
• Amendments to Tex. R. Evid. 613 retain the requirement that a witness be given an opportunity to explain or deny (a) a prior inconsistent statement or (b) circumstances or a statement showing bias or interest, but the requirement is no longer part of the foundation that an examining attorney must lay before introducing extrinsic evidence of the statement or its circumstances.

The revisions are subject to a comment period that will end on February 28, 2015. Final approval of the revisions will be effective April 1, 2015.

For the full announcement, click here.

Recent Amendments to the Federal Rules of Evidence Alter Hearsay Rules

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:

http://www.supremecourt.gov/orders/courtorders/frev14_3318.pdf