CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE
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        Issues Where Federal Rules Of Evidence Conflict With Case Law Or Are Silent

        Case Law Divergence: FRE 106
        Case Law Divergence: FRE 403
        Case Law Divergence: FRE 404(a)
        Case Law Divergence: FRE 407
        Case Law Divergence: FRE 601
        Case Law Divergence: FRE 607
        Case Law Divergence: FRE 608(b)
        Case Law Divergence: FRE 613(b)
        Case Law Divergence: FRE 704(b)
        Case Law Divergence: FRE 801 Committee Note on Confrontation
        Case Law Divergence: FRE 801(c) (Implied Assertions)
        Case Law Divergence: FRE 803(4)
        Case Law Divergence: FRE 803(5)
        Case Law Divergence: FRE 803(6)
        Case Law Divergence: FRE 803(8)(B)
        Case Law Divergence: FRE 803(8)(B) and (C)
        Case Law Divergence: FRE 804 (b)(1)
        Case Law Divergence: FRE 804 (b)(3)
        Case Law Divergence: FRE 805
        Case Law Divergence: FRE 806
        Case Law Divergence: FRE 807

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

    Rule 106 sets forth a rule of completeness, providing that when a party introduces a writing or recorded statement, the adversary may "require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it Rule 106 by its terms permits the adversary to introduce completing statements only when the proponent introduces a written or recorded statement. The language of the Rule does not on its face permit completing evidence when the proponent introduces an oral statement, such as the inculpatory parts of a criminal defendant's oral confession.

    Some courts have found, however, that Rule 106, or at least the principle of completeness embodied therein, requires admission of omitted portions of an oral statement when necessary to correct a misimpression. See United States v. Tarantino, 846 F2.d 1384 (D.C. Cir. 1988) (prior oral statements of a government witness were properly offered on redirect examination, since the defendant had used portions of the statements in cross-examination and the omitted portions placed the statements in context). See also the discussion in United States v. Branch, 91 F.3d 699 (5th Cir. 1996) (noting the case law permitting criminal defendants to offer omitted parts of statements they make to law enforcement officers that provide exculpatory information). Compare United States v. Harvey, 914 F.2d 966 (7th Cir. 1990) (Rule 106 does not apply to oral statements).

    Moreover, some courts have held that Rule 106 can operate as a de facto hearsay exception when the opponent opens the door and creates a misimpression by offering only part of a statement. In other words, completing evidence has been found admissible under Rule 106 even if it would otherwise be hearsay. See United States v. Sutton, 801 F.2d 1346, 1369 (D.C. Cir. 1986) ("Rule 106 can adequately fulfill its function only by permitting the admission of some otherwise inadmissible evidence when the court finds in fairness that that proffered evidence should be considered contemporaneously"). See also C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5078, at 376 (supporting this approach). Such a reading of the Rule is not apparent from the text or Committee Note. See United States v. Wilkerson, 84 F.3d 692 (4th Cir. 1996) (interpreting Rule 106 as purely a timing device, not as a rule permitting the admission of otherwise inadmissible evidence).

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

    Rule 403 provides that a trial judge may exclude proffered evidence if its probative value is substantially outweighed "by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence". Of the negative factors listed that would support exclusion, only one refers to the jury directly-the danger of "misleading the jury." This seems to indicate that other negative factors mentioned in the Rule, specifically the danger of unfair prejudice and confusion of the issues, must be taken into account in a bench trial. Yet courts have held to the contrary, reasoning that unfair prejudice and confusing evidence will not have the same negative impact on the judge as they would have on the jury. See, e.g., Schultz v. Butcher, 24 F.3d 626 (4th Cir. 1994) (trial court erred in excluding evidence in a bench trial on the ground of its prejudicial effect); Gulf States Utils. v. Ecodyne Corp., 635 F.2d 517 (5th Cir. 1981) (the portion of Rule 403 referring to prejudicial effect and confusing evidence "has no logical application in bench trials").

Related FORECITE National™ Materials:

See FORECITE National™ 25.2.5 [Potential Prejudice When Written Statement Offered As Exhibit Favors One Side].

See also FORECITE National™ 25.13.2 [Admission Of Irrelevant Character Evidence Violates Federal Due Process].

See also FORECITE National™ 39.1.1 [Does Offer To Stipulate To Prior Conviction Remove It From The Case?].

See also FORECITE National™ 251.9.5 [Third Party Guilt: Reverse 404(b)].

See also FORECITE National™ 254.1.3.2 [Duress/Coercion: Battered Person Syndrome Evidence Relevant].

See also FORECITE National™ 300.1.8 [Due Process: Juror Consideration Of Irrelevant, Prejudicial Evidence].

See also FORECITE National™ 300.11.1 [Constitutional Claims: Instruction Allowing Jury To Consider Irrelevant Evidence Violates Federal  Constitution].

See also FORECITE National™ 301.4.1.6 [Death Penalty: Constitution Requires Admission Of Relevant Mitigation Even If Not Admissible Under Traditional Rules Of Evidence].

See also FORECITE National™ 303.7.8.2 [Death Penalty Mitigation: Physical Abuse Of Defendant As Child Is Relevant Mitigating Evidence Even Without Expert Testimony].

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

    Rule 404(a) states that no party is permitted in the first instance to introduce character evidence to prove action in accordance with character, except for the "accused"-that is, only the "accused" can open the door to circumstantial use of character evidence. Thus, the Rule seems explicit in prohibiting the circumstantial use of character evidence in civil cases. The Committee Note confirms this exclusionary principle.

    Yet some courts have permitted civil defendants to use character evidence circumstantially "when the central issue in a civil case is by its nature criminal . Palmquist v. Selvik, 111 F3d 1332,1342 (7th Cir. 1997) (assuming that character evidence could be admissible in certain civil cases); Perrin v. Anderson, 784 F.2d 1040 (10th Cir. 1986) (police officers charged with excessive force are permitted to prove the decedent's violent character).

Related FORECITE National™ Materials:

See FORECITE National™ 25.13 [Character Evidence].

See also FORECITE National™ 26.11.1 [Character And Reputation Evidence].

See also FORECITE National™ 48.2.3 [Victim's Prior Bad Acts Or Character].

See also FORECITE National™ 51.2.4 [Good Character].

See also FORECITE National™ 251.4 [Good Character Of Defendant].

See also FORECITE National™ 253.4.7 [Character Of Defendant].

See also FORECITE National™ 253.4.8 [Character Of “Victim”].

See also FORECITE National™ 257.3.4.2 [Entrapment: Defendant’s Right To Present Evidence Of Good Character].

See also FORECITE National™ 303.7.1.10 [Death Penalty: Good Character As Mitigation].

See also FORECITE National™ 305.4.3 [Defendant's Character].

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

4.     Rule 407

    Rule 407 prohibits the admission of actions taken after an injury or harm which, if taken previously, would have made the injury or harm less likely to occur, if the remedial action is offered to prove negligence, culpable conduct, product defect, design defect, or failure to warn. The Rule by its terms appears to preclude evidence of any action by anyone that would have made the injury or harm less likely to occur. Courts have held, however, that subsequent remedial measures are not excluded by Rule 407 if the measure is taken by someone other than the defendant, that is, if it is a "third party repair.' See, e.g., TLT-Babcock, Inc. v. Emerson Elec. Co., 33 F.3d 397 (4th Cir. 1994) (design change not excluded by Rule 407 where the change was made by an entity that was not a party to the case); Dixon v. International Harvester Co., 754 F.2d 573 (5th Cir. 1985) (repair by tractor owner after an accident not excluded when offered against tractor manufacturer).

    Also, the Rule states that "impeachment" is a proper purpose for admitting subsequent remedial measures. Taken literally, this would mean that a plaintiff in a product liability case could offer proof of a subsequent remedial measure to "impeach" a defense witness's assertion that the product used by the plaintiff was safely designed. Yet courts have generally limited the use of subsequent remedial measures when offered for the purposes of impeachment by way of contradiction. The fear is that this exception would swallow the rule of exclusion. See, e.g., Harrison V. Sears, Roebuck & Co., 981 F.2d 25 (1st Cir. 1992) (a desire merely to undercut an expert's credibility cannot be sufficient to trigger the impeachment exception to Rule 407, or else the exception would swallow the rule of exclusion); Kelly v. Crown Equip. Co., 970 F.2d 1273 (3d Cir.1992) (subsequent remedial measure cannot be offered for simple contradiction of expert's statement that a design was safe).

    Thus, the "impeachment" permitted by the Rule has been limited to cases in which defense witnesses have made extravagant claims of safety. See Wood v. Morbark Indus., 70 F.3d 1202 (11th Cir. 1995) (post-accident design change admissible for impeachment where defense witness testified that the original design was the safest possible design); Muzyka v. Remington Arms Co., 774 F.2d 1309 (5th Cir. 1985) (design change should have been admitted for impeachment where defense witnesses testified that the product was the best and safest product of its kind).

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

5.     Rule 601

    Rule 601 essentially states that all questions that had been treated previously as matters of competency are now matters of credibility for the fact finder. The Committee Note, elaborating on the Rule, indicates an intent to prohibit a trial judge from excluding a witness on grounds of incompetence. Yet courts have excluded witnesses who have been found incapable of testifying in a competent fashion. See, e.g., United States v. Gates, 10 F.3d 765, 766 (11th Cir. 1993) ("Notwithstanding Rule 601, a court has the power to rule that a witness is incapable of testifying, and in an appropriate case it has the duty to hold a hearing to determine that issue."); United States v. Gutman, 725 F.2d 417, 420 (7th Cir. 1984) (trial court retains the power, and sometimes the duty, to hold a hearing "to determine whether a witness should not be allowed to testify because insanity has made him incapable of testifying in a competent fashion.").

Related FORECITE National™ Materials:

See FORECITE National™ 27.2.10 [Witnesses Credibility: Youth/Age Of Witness].

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

6.     Rule 607

    Rule 607 states categorically that a party can impeach any witness it calls.

    On its face, the Rule permits the following scenario:

    1.     In a criminal case, a witness would testify at trial that the defendant was not at the scene of the crime, yet the witness stated previously to a police officer that the defendant committed the crime.

    2.     The prior statement to the police officer could not be admitted as substantive evidence because it is hearsay.

    3.     The prosecutor calls the witness, knowing that the witness will give testimony favorable to the defendant, and then "impeaches" the witness with the prior statement to the police officer, on the ground that it is inconsistent with the witness's in-court testimony.

    Thus, Rule 607 by its terms permits the prosecutor to proffer prior inconsistent statements, not made under oath (and therefore not admissible for their truth under FRE 801(d)(1)(A)), in the guise of impeachment.

    Despite the affirmative and permissive language of the Rule, the courts have held that a prosecutor cannot call a witness solely to impeach that witness, because to allow this practice would undermine the hearsay rule. See, e.g., United States v. Hogan, 763 F.2d 697, 702 (5th Cir. 1985) ("The prosecution, however, may not call a witness it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment testimony, for such a scheme merely serves as a subterfuge to avoid the hearsay rule. The danger in this procedure is obvious."); United States v. Morlang, 531 F.2d 183 (4th Cir. 1975) (conviction reversed on the ground that the government should not have been permitted to call a witness for no other purpose than to impeach him). See generally Jonakait, The Supreme Court, Plain Meaning, and the Changed Rules of Evidence, 68 Tex. L. Rev. 745 (1990) (noting this and other situations in which courts have felt compelled to diverge from the text of an Evidence Rule in order to reach a just result).

Related FORECITE National™ Materials:

See FORECITE National™ 26.3.1 [Impeachment By Unsworn Prior Inconsistent Statements].

See also FORECITE National™ Chapter 27 [Witness Credibility].

See also FORECITE National™ 251.4.3.3 [Impeachment Of Witness By Evidence Of Untruthful Character Or Reputation].

See also FORECITE National™ 253.4.8.3 [Self Defense: Jury Consideration Of Alleged Victim’s Prior Conviction Not Limited To Impeachment].

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

    Rule 608(b) states that specific instances of the conduct of a witness, "for the purpose of attacking or supporting the witness' credibility ... may not be proved by extrinsic evidence." (Emphasis added.) Read literally, "the first sentence of (b) could bar extrinsic evidence for bias, competency and contradiction impeachment, since they too deal with credibility." American Bar Association Section on Litigation, Emerginq Problems Under the Federal Rules of Evidence 161 (3d ed. 1998).

    Yet courts have held that the Rule 608(b) extrinsic evidence ban is not applicable unless the sole reason for the impeachment is to attack the witness's character for veracity. See, e.g., United States v. Winchenbach, 197 F.3d 548 (1st Cir. 1999) (impeachment with proof of prior inconsistent statement is governed by the balancing process of Rule 403 rather than the absolute exclusion of Rule 608(b)); United States v. Tarantino, 846 F.2d 1384,1409 (D.C. Cir. 1988) (admissibility of extrinsic evidence offered to contradict a witness is governed by Rules 402 and 403, not Rule 608(b)); United States v. Lindemann, 85 F.3d 1232 (7th Cir. 1996) (admissibility of extrinsic evidence of bias is governed by Rules 402 and 403, not Rule 608(b)).

Related FORECITE National™ Materials:

See also FORECITE National™ 251.4.3.3 [Impeachment Of Witness By Evidence Of Untruthful Character Or Reputation].

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

    Rule 613(b) and the Committee Note both indicate that it is not necessary to give a witness an opportunity to examine a prior inconsistent statement before that statement is admissible to impeach the witness. All that is necessary is that the witness be given an opportunity at some point in the trial to explain or deny the statement. The Rule thus rejects the common-law rule from Queen Caroline's case, under which the proponent was required to lay a foundation for the prior inconsistent statement at the time the witness testified.

    Despite the language of the Rule and Note, however, some courts have reverted to the common-law rule. See, e.g., United States v. Sutton ' 4 1 E3d 1257 (8th Cir. 1994) (trial judge properly excluded testimony as to inconsistent statements by a prosecution witness on the ground that the witness had not been given an opportunity to explain or deny the prior statement while cross-examined by defense counsel); United States v. Marks, 816 E2d 1207,1211 (7th Cir. 1987) (trial judge is entitled, despite the language of Rule 613 (b), "to conclude that in particular circumstances the older approach should be used in order to avoid confusing witnesses and juries").

Related FORECITE National™ Materials:

See FORECITE National™ 26.3.1 [Impeachment By Unsworn Prior Inconsistent Statements].

See also FORECITE National™ 26.3.2 [Distinguishing Between Sworn And Unsworn Prior Inconsistent Statements].

See also FORECITE National™ 305.16.10 [Prior Inconsistent Statements].

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

9.     Rule 704(b)

    Rule 704(b) seems to prohibit all expert witnesses from testifying that a criminal defendant either did or did not have the requisite mental state to commit the crime charged. It states that "[n]o expert witness ... may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto."

    But some courts have held (and others have implied) that the Rule is applicable only to mental health experts, and therefore does not prohibit intent-based testimony from law enforcement personnel, such as narcotics agents. See, e.g., United States v. Gastiaburo, 16 F.3d 582 (4th Cir. 1994) (stating that Rule 704(b) does not apply to the testimony of an expert law enforcement agent); United States v. Lipscomb, 14 F.3d 1236 (7th Cir. 1994) (expressing sympathy with such a position, but finding it unnecessary to decide the matter).

    Other courts, while technically applying the Rule 704(b) limitation to all expert witnesses, have applied it in such a way as to nullify its impact-permitting, for example, an expert to opine as to the mental state of a hypothetical person whose fact situation mirrors the fact situation at issue. See, e.g., United States v. Williams, 980 F.2d 1463 (D.C. Cir. 1992) (permitting a law enforcement agent to testify that a hypothetical person carrying Ziploc bags, each containing small amounts of drugs, was intending to distribute them; the hypothetical matched the facts of the case).

Related FORECITE National™ Materials:

See FORECITE National™ 29.1.6 [Expert Witness: Ultimate Issue Rule Abolished In Federal System].

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

11.     Rule 801 Committee Note on Confrontation

    The original Committee Note to Rule 801 includes an extensive discussion of the law of confrontation as it existed at the time the Rules were proposed. This Note is quite outdated, since the Supreme Court has substantially developed and revised its interpretation of the Confrontation Clause since that time. For example, the Committee Note draws a fairly sharp distinction between the hearsay exceptions and the Confrontation Clause, but the recent jurisprudence leads to the conclusion that statements fitting within the Federal Rules of Evidence hearsay exceptions will ordinarily satisfy the Confrontation Clause. Virtually all of the major Federal Rules exceptions, except the residual exception, have been found by federal courts to be "firmly rooted," which means that statements falling within these exceptions automatically satisfy the Confrontation Clause. And as to the residual exception, the reliability requirements of that exception have been found congruent with those imposed by the Confrontation Clause. See generally Ohio v. Roberts, 448 U.S. 56 (1980); Idaho v. Wright, 497 U.S. 805 (1990); White v. Illinois, 502 U.S. 346 (1992). See the discussion of this case law in S. Saltzburg, M. Martin & D. Capra, Federal Rules of Evidence Manual 1702-05,1852-54 (7th ed. 1998).

Related FORECITE National™ Materials:

See FORECITE National™ 25.14.1.5 [Instruction On Foundational Requirements For Adoptive Admissions].

See also FORECITE National™ 26.4.1 [Prior Consistent Statements: Purpose And Scope Of Instruction].

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

10.     Rule 801(c) (Implied Assertions)

    Rule 801(c) defines hearsay as an out-of-court statement "offered in evidence to prove the truth of the matter asserted." The Committee Note states that "verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted" is excluded from the definition of hearsay "by the language of subdivision (c)." This would mean that a statement would be hearsay only if it were offered to prove the truth of the express assertion in the statement; offering it to prove the truth of any implied assertion would escape hearsay proscription. So, for example, the statement "It is raining cats and dogs" would be admissible to prove it is raining; the statement would not be offered to prove the express assertion that cats and dogs are falling from the sky.

    This highly constricted definition of hearsay has generally been rejected by the courts. The courts generally state that statements are hearsay if (1) they are offered to prove the truth of a matter implied in the statement and (2) the speaker intended to communicate that implication. See .g., United States v. Reynolds, 715 F.2d 99 (3d Cir. 1983) (rejecting the government's suggestion that only a statement's express assertion should be considered in deciding whether it constitutes hearsay); Lyle v. Koehler, 720 F.2d 426,433 (6th Cir. 1983) (concluding that letters were hearsay because "the inferences they necessarily invite form an integral part of the letters"; the reference to "matters asserted" in Rule 801 (c) covers both express and implied assertions); United States v. Jackson, 88 F.3d 845, 848 (10th Cir. 1996) (stating that the important question under Rule 801 (c) is whether the assertion, express or implied, "is intended"). See also Milich, Re-examining Hearsay Under the Federal Rules: Some Method for the Madness, 39 Kan. L. Rev. 893 (1991) (arguing for an intent-based test in determining whether implied assertions are hearsay).

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

    Rule 803(4) provides a hearsay exception for statements made for purposes of treatment or diagnosis when the statements deal with the "cause or external source" of the medical condition. The exception does not, by its terms, provide a hearsay exception for statements attributing fault. The Committee Note states that statements of fault "would not ordinarily qualify" under the exception, and distinguishes the statement "I was hit by a car" (admissible when made to medical personnel) from the statement "I was hit by a car that ran a red light" (inadmissible).

    Yet in at least some classes of cases, statements attributing fault, when made to medical personnel, are admitted by the courts under Rule 803 (4). The most common example is a statement from a child victim of sexual abuse specifically identifying the abuser. See, e.g., United States v. Renville, 779 F.2d 430, 438 (8th Cir. 1985) (child's statement attributing fault is admissible under Rule 803(4) "where the physician makes clear to the victim that the inquiry into the identity of the abuser is important to diagnosis and treatment, and the victim manifests such an understanding"); United States v. Joe, 8 F.3d 1488, 1494 (10th Cir. 1993) ("[T]he domestic sexual abuser's identity is admissible under Rule 803(4) where the abuser has such an intimate relationship with the victim that the abuser's identity becomes reasonably pertinent to the victim's proper treatment.").

    Rule 803(5) provides a hearsay exception for past recollection recorded: a record "containing a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately" where the record is "shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. "What happens, however, when a person makes a statement to another person, and that other person is the one who writes it down? The exception by its terms does not seem to permit a "two-party voucher" system of proving past recollection recorded, since it states that the record must be shown to have been "made or adopted by the witness. Thus, the Rule does not envision that a person with personal knowledge of a matter might make a statement that was recorded by another, with the record being made admissible by counsel's calling both the reporter and the recorder. Despite the language of the Rule, however, cases can be found that permit two-party vouching under Rule 803(5). See, e.g., United States v. Williams, 951 F.2d 853 (7th Cir. 1993) .

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

    Rule 803(6) defines a business record as one "made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted activity." This language could be read as abrogating the common-law requirement that the person transmitting the information to the recorder must have a business duty to do so. It states only that the transmitting person must have "knowledge," not that the person must be reporting within the business structure.

    Despite the text of the Rules, the courts have held that all those who report information included in a business record must be under a business duty to do so-or else the hearsay problem created by the report coming from an outsider must be satisfied in some other way. See United States v. Turner, 189 F.3d 712, 719-20 (8th Cir. 1999) ("[W] hen the source of information and the recorder of that information are not the same person, the business record contains hearsay upon hearsay. If both the source and recorder of the information were acting in the regular course of the organization's business, however, the hearsay upon hearsay problem may be excused by the business records exception to the rule against hearsay."); Bemis v. Edwards, 45 F.3d 1369 (9th Cir. 1995) (a 911 call was not admissible as a business record because the caller was not under any business duty to report, and the report did not independently satisfy any hearsay exception); Cameron v. Otto Bock Orthopedic Indus. Inc., 43 F.3d 14 (1st Cir. 1994) (product failure reports submitted to the manufacturer after the plaintiff's accident were inadmissible; the reports were submitted by parties who had no business duty to report accurately to the manufacturer).

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

    Rule 803(8)(B) provides a hearsay exception for public reports, but the Rule specifically excludes from its coverage public reports setting forth "matters observed by police officers and other law enforcement personnel" if such reports are offered "in criminal cases." Read literally, the Rule would not provide a hearsay exception for a forensic report prepared by the police that concluded that the defendant was innocent. Such a report would be offered by the defendant, but the exclusionary language of Rule 803 (8) (B) covers all police reports offered in criminal cases.

    Yet some lower courts have refused to be bound by the plain meaning of the Rule, reasoning that Congress intended to regulate only police reports that unfairly inculpate a criminal defendant, and that the exception should therefore apply to public reports offered by the accused. See, e.g., United States v. Smith, 521 F.2d 957 (D.C. Cir. 1975) (despite its exclusionary language, Rule 803 (8) (B) should be read in light of Congress's intent to exclude police reports only when offered against a criminal defendant). But see United States v. Sharpe, 193 F.3d 852,868 (5th Cir. 1999) (the defendant's reliance on Rule 803 (8) (B) to admit an exculpatory police report was "misplaced" because the Rule does not grant admissibility for any such reports offered in criminal cases).

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

    Rule 803(8)(B) and (C) both contain language that appears to exclude from the hearsay exception all records prepared by law enforcement personnel when such records are offered against a criminal defendant. Read literally, these provisions would prevent the government from introducing simple tabulations of nonadversarial information. For example, these subdivisions appear not to grant a hearsay exception for a routine print out from the Customs Service recording license plates of cars that crossed the border on a certain day, when offered in a criminal case to prove the location of a car.

    Courts have refused to apply the plain exclusionary language of these subdivisions literally, however. They reason that the exclusionary language could not have been intended to cover reports that are ministerial in nature and prepared under nonadversarial circumstances; the language was designed to regulate only adversarial, evaluative reports (such as crime scene reports) that carry the risk of fabrication. See, e.g., United States v. Orozco, 590 F.2d 789 (9th Cir. 1979) (Customs records of border crossings are admissible under Rule 803(8) because they are ministerial and not prepared under adversarial circumstances); United States v. Grady, 544 F.2d 598 (2d Cir. 1976) (reports concerning firearms' serial numbers were admissible because they were records of routine factual matters prepared in nonadversarial circumstances).

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

    Rule 804(b)(1) provides a hearsay exception for prior testimony when offered against a party who either (1) had a similar motive and opportunity to develop the testimony at the time it was given, or (2) had a predecessor in interest with such a similar motive and opportunity at the time the testimony was given. Some courts have defined the term "predecessor in interest" as anyone who had a similar motive and opportunity to develop the testimony, at the time it was given, as the opponent would have at the instant trial; these courts do not require some legal relationship between the prior party and the party against whom the evidence is now offered. This construction collapses the term "predecessor in interest" with the term "similar motive." See, e.g., Lloyd v. American Export Lines, Inc., 580 F.2d 1179 (3d Cir. 1978) (prior testimony properly admitted against plaintiff where prior party had a similar motive to develop the testimony as the plaintiff in the instant case would have were the declarant to testify at trial; Judge Stern, concurring, states that such an expansive definition of "predecessor in interest" effectively reads that term out of the Rule); Horne v. Owens-Corning Fiberglass Corp., 4 F.3d 276 (4th Cir. 1993) (prior testimony from a different case properly admitted against the plaintiff where a party to the prior action, though not affiliated in any way with the plaintiff, had a similar motive to develop the testimony).

    Other courts have admitted such evidence not as prior testimony (for want of a predecessor in interest) but as residual hearsay. See Dartez v. Fibreboard Corp., 765 F.2d 456 (5th Cir. 1985).

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

    Rule 804(b)(3) provides that if a declaration against penal interest is offered to exculpate an accused, it is not admissible under this hearsay exception "unless corroborating circumstances clearly indicate the trustworthiness of the statement." On its face, the rule does not require a showing of corroborating circumstances for statements offered by the government that inculpate the accused. Yet many courts have required the government to establish corroborating circumstances for inculpatory statements offered under Rule 804(b)(3). See, e.g., United States v. Barone, 114 F.3d 1284 (lst Cir. 1997) (imposing a corroborating circumstances requirement for statements offered by the prosecution under Rule 804 (b) (3) while acknowledging that the Rule does not explicitly require a showing of corroborating circumstances for such statements); United States v. Garcia, 897 F.2d 1413 (7th Cir. 1990) (requiring a showing of corroborating circumstances for inculpatory declarations against penal interest).

    Similarly, the corroborating circumstances requirement does not appear to apply when declarations against penal interest are offered in civil cases, since the requirement covers statements offered to exculpate the CC accused." At least one court, however, has applied the corroborating circumstances requirement to declarations against penal interest offered in civil cases. See American Automotive Accessories, Inc. v. Fishman, 175 F.3d 534, 541 (7th Cir. 1999) (reasoning that it is important to have a "unitary standard" for declarations against penal interest, no matter in what case and no matter by whom they are offered).

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

19.     Rule 805

    Rule 805 states that hearsay within hearsay is not excluded if each part of the combined statement "conforms with an exception to the hearsay rule." However, admissions and certain prior statements of testifying witnesses are classified by Rule 801 (d) as "not hearsay." Rule 805 could technically be read to preclude admissibility of multiple hearsay where one level of hearsay would be admissible under the Rule 801 (d) exemptions, as opposed to an "exception" as is mentioned by Rule 805.

    But it has been held that the technical distinction between the Rule 801 (d) category of "not hearsay" and the Rule 803, 804, and 807 categories of "hearsay subject to exception" cannot control the application of Rule 805's standard for admitting multiple levels of hearsay. See, e.g., United States v. Dotson, 821 F.2d 1034, 1035 (5th Cir. 1987) ("For the purposes of the hearsay-within-hearsay principle expressed in Rule 805, non-hearsay statements under Rule 801 (d) ... should be considered in analyzing a multiple-hearsay statement as the equivalent of a level of the combined statement that conforms with an exception to the hearsay rule.").

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

19.     Rule 805

    Rule 805 states that hearsay within hearsay is not excluded if each part of the combined statement "conforms with an exception to the hearsay rule." However, admissions and certain prior statements of testifying witnesses are classified by Rule 801 (d) as "not hearsay." Rule 805 could technically be read to preclude admissibility of multiple hearsay where one level of hearsay would be admissible under the Rule 801 (d) exemptions, as opposed to an "exception" as is mentioned by Rule 805.

    But it has been held that the technical distinction between the Rule 801 (d) category of "not hearsay" and the Rule 803, 804, and 807 categories of "hearsay subject to exception" cannot control the application of Rule 805's standard for admitting multiple levels of hearsay. See, e.g., United States v. Dotson, 821 F.2d 1034, 1035 (5th Cir. 1987) ("For the purposes of the hearsay-within-hearsay principle expressed in Rule 805, non-hearsay statements under Rule 801 (d) ... should be considered in analyzing a multiple-hearsay statement as the equivalent of a level of the combined statement that conforms with an exception to the hearsay rule.").

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

    Rule 806 states that a hearsay declarant's credibility may be attacked "by any evidence which would be admissible" if the declarant had testified as a witness. The language raises a problem when the proponent wishes to attack the declarant by proffering specific bad acts to prove the witness's bad character for veracity. FRE 608(b) prohibits extrinsic proof of bad acts when offered to show the witness's character for untruthfulness. FRE 806 could therefore be read literally as prohibiting bad acts impeachment of a hearsay declarant, since the only way to introduce such acts without the witness being there to admit them would be to proffer extrinsic evidence in apparent violation of FRE 608(b).

    But courts have stated that extrinsic evidence of a bad act offered to prove a hearsay declarant's character for veracity is admissible (subject to FRE 403). The reasoning is that since the declarant is not available for cross-examination, extrinsic evidence is "the only means of presenting such evidence to the jury." United States v. Friedman, 854 F.2d 535, n.8 (2d Cir. 1988). See the extensive discussion of this problem in Cordray, Evidence Rule 806 and the Problem of the Nontestifying Declarant, 56 Ohio State L.J. 495 (1995).

Related FORECITE National™ Materials:

See FORECITE National™ 27.5.1 [Witness Credibility: Applicability To Out Of Court Statements Or Declarants].

See also FORECITE National™ 27.5.2 [Witness Credibility: Inability To Cross-Examine Out Of Court Declarant's Statements].

CASE LAW DIVERGENCE FROM THE FEDERAL RULES OF EVIDENCE

Examples of Case Law In Conflict with the Text of the Rule, the Committee Note, or Both

    Rule 807 provides a "residual exception" to the hearsay rule, granting admissibility to trustworthy statements that are "not specifically covered by" other exceptions. There are at least two ways in which the case law diverges from the text or Committee Note to Rule 807. First, the Rule permits the admission of residual hearsay only if that hearsay is "not specifically covered" by another exception. This might seem to indicate that hearsay that "nearly misses" one of the established exceptions should not be admissible as residual hearsay, because it is specifically covered by, and yet not admissible under, another exception. In fact, however, most courts have construed the term "not specifically covered" by another hearsay exception to mean "not admissible under" another hearsay exception. See, e.g., United States v. Fernandez, 892 F.2d 976 (11th Cir. 1989) (grand jury statement is "not specifically covered" by another hearsay exception because it is not admissible under any such exception). Compare United States v. Dent, 984 F.2d 1453 (7th Cir. 1993) (Easterbrook, J., concurring) (arguing that grand jury testimony can never be admissible as residual hearsay, since such testimony is specifically covered by, though not admissible under, the hearsay exception for prior testimony).

    The second divergence between the case law and the text of the residual exception involves the notice requirement. The Rule states that "a statement may not be admitted" under this exception unless the proponent gives notice "sufficiently in advance of trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it." Most courts have read the notice requirement far more flexibly than its language seems to indicate. For example, most courts have held that the notice requirement can be satisfied by providing notice at trial, so long as the adversary is given sufficient time to prepare. See, e.g., United States v. Baker, 985 F.2d 1248 (4th Cir. 1993).

    Other courts have read a good cause exception into the notice requirement. See, e.g., United States v. Lyon, 567 F.2d 777 (8th Cir. 1977). But see United States v. Ruffin, 575 F.2d 346 (2d Cir. 1978) (rejecting a good cause exception as not permitted by the text of the Rule).