On December 1, 2014, amendments to the Federal Rules of Evidence, Civil Procedure, Criminal Procedure, Appellate Procedure and Bankruptcy Procedure became effective. This Update discusses the amendments to the Federal Rules of Evidence and Criminal Procedure and very briefly notes a purely technical amendment to the Federal Rules of Civil Procedure and amendments to other Rules that are bankruptcy related.
Federal Rules of Evidence.
The Federal Rules of Evidence were amended in two respects: (1) the exclusion from the definition of hearsay for prior consistent statements (801(d)(1)(B)) has been broadened and (2) the hearsay exceptions related to records (or lack of records) of a regularly conducted activity and public records (803(6), 803(7), 803(8)) have been amended to make clear that the opponent of such evidence bears the burden of showing an indication of untrustworthiness if the Court is to exclude the evidence on that ground.
Rule 801(d)(1)(B). This Rule sets forth an exclusion from the definition of hearsay for a prior statement by a declarant, who testifies and is subject to cross examination about the statement, that “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.” Rule 801(d)(1)(B) (December 1, 2013 version). Under the amendment, the foregoing language is retained (now Rule 801(d)(1)(B)(i)) and language is added providing that such a prior consistent statement also is not hearsay where offered “to rehabilitate the declarant’s credibility as a witness when attacked on another ground.” See Rule 801(d)(1)(B)(ii) (December 1, 2014 version).
The Advisory Committee Notes explain that Amended Rule 801(d)(B) allows “substantive use” not only of prior consistent statements “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” (prior, retained language) but also of prior consistent statements offered “to rehabilitate the declarant’s credibility as a witness when attacked on another ground.” (new language) Advisory Committee Notes — 2014 Amendments. “The intent of the amendment is to extend substantive effect to consistent statements that rebut other attacks on a witness — such as the charges of inconsistency or faulty memory.” Id. “The amendment does not change the traditional and well-accepted limits on bringing prior consistent statements before the factfinder for credibility purposes …. [and] …. does not make any consistent statement admissible that was not admissible previously”; rather, “the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well.” Id.
Rules 803(6), 803(7), 803(8). These rules set forth the hearsay exceptions for records of a regularly conducted activity (803(6)), the absence of such records (803(7)) and public records (803(8)). Each rule required that there be no indication that the proffered evidence was untrustworthy. See, e.g., Rule 803(6) (December, 2013 version)(“…neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness…”). But it was unclear which party bore the burden of addressing this requirement, either by showing the absence of an indication of untrustworthiness (proponent) or the existence of such an indication (opponent). The amendments expressly cast this burden on the opponent, providing that evidence otherwise satisfying the requirements for admission shall be admitted so long as, in the case of Rule 803(6), for example, “the opponent does not show that the source of information or circumstances of preparation indicate a lack of trustworthiness.” See Rule 803(6); see also Rules 803(7), 803(8) (casting similar burden on opponent of evidence) (December, 2014 version).
Federal Rules of Criminal Procedure.
The Federal Rules of Criminal Procedure were amended in three basic respects: (1) defendants who are not United States citizens must be advised with respect to consular notification (5(d)(1)(F), 58(b)(2)); (2) the failure of an indictment to state an offense must be asserted in a pretrial motion and no longer may be asserted in a post trial motion to arrest judgment (12(b)(3)(B)(v), 34); and (3) the definition of a required pretrial motion, the deadline for filing such a motion and the standard that must be satisfied for a court to consider an untimely pretrial motion all were amended (12(b), (c)). (We do not address a purely technical amendment to Rule 6(e)(3)(D) to correct a statutory reference)
Rule 5, Rule 58(b)(2). Rule 5 (initial appearance in felony cases) and Rule 58(b)(2) (initial appearance in misdemeanor and petty offense cases) now both require that “a defendant who is not a United States citizen” be advised that he or she “may request that an attorney for the government or a federal law enforcement official notify a consular officer from the defendant’s country of nationality that the defendant has been arrested — but that even without the defendant’s request, a treaty or other international agreement may require consular notification.” See Rules 5(d)(1)(F), 58(b)(2) (December 1, 2014 version).
Importantly, the amendments are not intended to relieve law enforcement officers of consular notification responsibilities but rather “to provide additional assurance that U.S. treaty obligations are fulfilled, and to create a judicial record of that action.” Rule 5, 58 Advisory Committee Notes, 2014 Amendment. Further, the amendments do not create any rights or remedies for a violation of Article 36 of the Vienna Convention on Consular Notification or address whether such rights or remedies exist. Id.
Rule 12, Rule 34 (Failure to State Offense). Rule 12 has been amended to provide that a motion arguing that an indictment or information fails to state an offense must be made before trial. See Rule 12(b)(3)(B)(v) (December 1, 2014 version). Correspondingly, Rule 34(a)(1), which provided that the Court must arrest judgment “if the indictment or information … does not charge an offense,” has been stricken, leaving lack of jurisdiction (formerly Rule 34(a)(2)) as the sole ground upon which the Court may arrest judgment. See Rule 34 (December 1, 2014 version). Notably, the Supreme Court stated in 2002 that it had “some time ago departed from…[the]…view that indictment defects are ‘jurisdictional.'” United States v. Cotton, 535 U.S. 625, 631 (2002).
Rule 12 (Pretrial Motions; Deadline for Pretrial Motions; Relief From Failure to File Timely Pretrial Motion). Rule 12(b)(3) has been amended to define motions that must be brought before trial as motions asserting the enumerated “defenses, objections and requests” that “can be determined without a trial on the merits” (which replaces the previous “can determine without a trial of the general issue” language) and “the basis” for which “is then reasonably available.” (December, 2014 version). The Advisory Committee Notes explain that “[t]he ‘then reasonably available language’ is intended to ensure that a claim a party could not have raised on time is not subject to the limitations on review [discussed infra] imposed by Rule 12(c)(3).” Advisory Committee Notes, 2014 Amendment. The list enumerating specific motions that must be brought prior to trial (Rule 12(b)(3)(A) – (E)) also has been amended to provide specific examples in certain instances and greater clarity.
Rule 12(c), which concerns the deadline for the filing of pretrial motions, has been divided into three subsections. Rules 12(c)(1)and (2)now provide that if the Court sets no deadline for pretrial motions, “the deadline is the start of trial” and that “[a]t any time before trial, the court may extend or reset the deadline for pretrial motions.” See Rule 12(c)(1),(2) (December, 2014 version). Rule 12(c)(3) provides that “[i]f a party does not meet the deadline for making a Rule 12(b)(3) motion, the motion is untimely” and that an “untimely” motion may nonetheless be considered “if the party shows good cause.” See Rule 12(c)(3) (December, 2014 version). Rule 12(e), which previously had cast the failure to make a timely pretrial motion as a “waiver” from which “relief” could be granted if “good cause” was shown, has been stricken. (December, 2014 version). The Advisory Committee Notes state that Rule “12(c)(3) retains the existing [‘good cause’] standard for untimely claims,” which is described as “a flexible standard that requires consideration of all interests in the particular case.” Advisory Committee Notes, 2014 Amendment.
Other Amendments.
Federal Rule of Civil Procedure 77. Rule 77, which concerns the operations of district court clerks, was amended to correct a misprinted cross-reference.
Bankruptcy Related Amendments. Federal Rule of Appellate Procedure 6, which governs bankruptcy appeals, also was extensively amended, and there were amendments to a number of Bankruptcy Procedure Rules. These amendments are beyond the scope of this Update.
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