ADVISORY COMMITTEE ON EVIDENCE RULES

Transcription

1 ADVISORY COMMITTEE ON EVIDENCE RULES Dallas, TX April 3, 2012

2 THIS PAGE INTENTIONALLY BLANK April 3, 2012 Page 2 of 358

3 TABLE OF CONTENTS AGENDA... 5 TAB 1. Opening Business A. Draft Minutes of October 2011 Evidence Rules Meeting B. Draft minutes of January 2012 Standing Committee Meeting C. Report of the Proceedings of the Judicial Conference (Sept. 13, 2011) TAB 2. TAB 3. Reporter s Memo Regarding Possible Amendment to Rule 803(10) Reporter s Memo Regarding Possible Amendment to Rule 801(d)(1)(B) with Attachments A. Federal Judicial Center Survey of District Court Judges on a Proposed Amendment to Federal Rule of Evidence 801(d)(1)(B) Concerning Prior Consistent Statements B. Letter from William T. Hangley, American Bar Association Section of Litigation, to Daniel J. Capra, Philip Reed Professor of Law, Fordham University School of Law (Mar. 8, 2012) C. Letter from William T. Hangley, American Bar Association Section of Litigation, to Daniel J. Capra, Philip Reed Professor of Law, Fordham University School of Law (Feb. 14, 2012) D. Letter from James R. Asperger, Chair, American College of Trial Lawyers Federal Rules of Evidence Committee, to Daniel J. Capra, Philip Reed Professor of Law, Fordham University School of Law (Feb. 14, 2012) TAB 4. TAB 5. TAB 6. Reporter s Memo Regarding Possible Amendment to the Trustworthiness Clauses of Rules 803(6)-(8) Reporter s Memo Regarding Continuous Study of the Operation of the Evidence Rules Reporter s Memo Regarding Federal Law Development After Crawford v. Washington April 3, 2012 Page 3 of 358

4 Table of Contents Page 2 TAB 7. Reporter s Memo Regarding Symposium on Rule TAB 8. Memo Regarding Survey Rule on Spousal Testimony Privilege April 3, 2012 Page 4 of 358

5 ADVISORY COMMITTEE ON EVIDENCE RULES AGENDA FOR COMMITTEE MEETING Dallas, Texas April 3, 2012 I. Opening Business Opening business includes approval of the minutes of the Fall, 2011 meeting; and a report on the January, 2012 meeting of the Standing Committee. II. Proposed Amendment to Rule 803(10) At the meeting, the Committee will determine whether to recommend to the Standing Committee that the proposed amendment to Rule 803(10) be approved and referred to the Judicial Conference. The agenda book contains a memorandum on the proposed amendment and on the public comments that have been received. III. Possible Amendment to Rule 801(d)(1)(B) The agenda book contains a memorandum from the Reporter analyzing the possibility of amending Rule 801(d)(1)(B) to provide that a prior consistent statement is exempt from the hearsay rule whenever it is admissible to rehabilitate the credibility of the declarant-witness. IV. Possible Amendment to Rules 803(6) and 803(8) The Committee previously decided not to propose an amendment to clarify that the opponent has the burden of showing the untrustworthiness of business and public records. Since that time, the Reporter has been informed by members of the Texas Restyling Project that they believe that the restyled rules place the burden of showing trustworthiness is on the proponent which was not the intent of the Advisory Committee when it restyled the rules. The agenda book contains a memorandum discussing the proposed amendment and the comments of the Texas Restyling Project. 1 April 3, 2012 Page 5 of 358

6 V. Memo on Continuous Study of the Evidence Rules The Procedures for the Standing Committee require the Evidence Rules Committee to engage in a continuous study of the need for any amendment to the Rules. The agenda book includes a memo from the Reporter providing some history of the studies that have already been undertaken and providing some suggestions of possible amendments for consideration by the Committee. VI. Crawford Outline The updated outline on federal cases on confrontation after Crawford v. Washington is included in the agenda book. VII. Symposium on Rule 502 The Evidence Rule Committee is sponsoring a symposium on Federal Rule of Evidence 502, which will take place on October 5, 2012, before the Fall meeting of the Committee. The agenda book contains a short memo on the plans for the symposium. VIII. Privilege Project The agenda book contains a memo from Professor Broun on the Privilege Project and a survey rule and commentary on the spousal testimony privilege. IX. Next Meeting The next meeting of the Committee is scheduled for Friday October 5, 2012, in Charleston, to take place after the Symposium on Rule April 3, 2012 Page 6 of 358

7 COMMITTEES ON RULES OF PRACTICE AND PROCEDURE CHAIRS and REPORTERS Chair, Committee on Rules of Practice and Procedure (Standing Committee) Reporter, Committee on Rules of Practice and Procedure (Standing Committee) Honorable Mark R. Kravitz United States District Court Richard C. Lee United States Courthouse 141 Church Street New Haven, CT Professor Daniel R. Coquillette Boston College Law School 885 Centre Street Newton Centre, MA Chair, Advisory Committee on Appellate Rules Reporter, Advisory Committee on Appellate Rules Honorable Jeffrey S. Sutton United States Court of Appeals 260 Joseph P. Kinneary U.S. Courthouse 85 Marconi Boulevard Columbus, OH Professor Catherine T. Struve University of Pennsylvania Law School 3400 Chestnut Street Philadelphia, PA Chair, Advisory Committee on Bankruptcy Rules Reporter, Advisory Committee on Bankruptcy Rules Honorable Eugene R. Wedoff United States Bankruptcy Court Everett McKinley Dirksen U.S. Courthouse 219 South Dearborn Street Chicago, IL Professor S. Elizabeth Gibson 5073 Van Hecke-Wettach Hall University of North Carolina at Chapel Hill C.B. #3380 Chapel Hill, NC Professor Troy A. McKenzie New York University School of Law 40 Washington Square South New York, NY Effective: October 1, 2011 Committee Chairs and Reporters Page 1 Revised: January 30, 2012 April 3, 2012 Page 7 of 358

8 Chair, Advisory Committee on Civil Rules Reporter, Advisory Committee on Civil Rules Honorable David G. Campbell United States District Court 623 Sandra Day O Connor U.S. Courthouse 401 West Washington Street Phoenix, AZ Professor Edward H. Cooper University of Michigan Law School 312 Hutchins Hall Ann Arbor, MI Professor Richard L. Marcus University of California Hastings College of the Law 200 McAllister Street San Francisco, CA Chair, Advisory Committee on Criminal Rules Reporter, Advisory Committee on Criminal Rules Honorable Reena Raggi United States Court of Appeals 704S United States Courthouse 225 Cadman Plaza East Brooklyn, NY Professor Sara Sun Beale Duke University School of Law Science Drive & Towerview Road Box Durham, NC Professor Nancy J. King Vanderbilt University Law School st Avenue South, Room 248 Nashville, TN Chair, Advisory Committee on Evidence Rules Reporter, Advisory Committee on Evidence Rules Honorable Sidney A. Fitzwater Chief Judge United States District Court Earle Cabell Federal Bldg. U.S. Courthouse 1100 Commerce Street, Room 1528 Dallas, TX Professor Daniel J. Capra Fordham University School of Law 140 West 62nd Street New York, NY Effective: October 1, 2011 Committee Chairs and Reporters Page 2 Revised: January 30, 2012 April 3, 2012 Page 8 of 358

9 Secretary, Standing Committee Chief Counsel Rules Committee Officer Deputy Rules Committee Officer and Counsel Peter G. McCabe Secretary Committee on Rules of Practice & Procedure Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room Washington, DC Phone Fax Andrea L. Kuperman Chief Counsel to the Rules Committees Bob Casey U.S. Courthouse 515 Rusk Ave. Houston, TX Phone Fax Jonathan C. Rose Rules Committee Officer Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room Washington, DC Phone Fax Benjamin J. Robinson Deputy Rules Committee Officer and Counsel to the Rules Committees Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room Washington, DC Phone Fax Effective: October 1, 2011 Committee Chairs and Reporters Page 3 Revised: January 30, 2012 April 3, 2012 Page 9 of 358

11 ADVISORY COMMITTEE ON EVIDENCE RULES Chair, Advisory Committee on Evidence Rules Reporter, Advisory Committee on Evidence Rules Members, Advisory Committee on Evidence Rules Honorable Sidney A. Fitzwater Chief Judge United States District Court Earle Cabell Federal Bldg. and U.S. Courthouse 1100 Commerce Street, Room 1528 Dallas, TX Professor Daniel J. Capra Fordham University School of Law 140 West 62nd Street New York, NY Honorable Brent R. Appel Iowa Supreme Court Iowa Judicial Branch Building 1111 East Court Avenue Des Moines, IA Honorable Anita B. Brody United States District Court 7613 James A. Byrne United States Courthouse 601 Market Street Philadelphia, PA Honorable Stuart M. Goldberg Principal Associate Deputy Attorney General (ex officio) United States Department of Justice 950 Pennsylvania Avenue, N.W. Room 4208 Washington, DC William T. Hangley, Esq. Hangley, Aronchick, Segal & Pudin, P.C. One Logan Square, 27th Floor Philadelphia, PA Marjorie A. Meyers, Esq. Federal Public Defender Southern District of Texas 440 Louisiana, Suite 1350 Houston, Texas Effective: October 1, 2011 Advisory Committee on Evidence Rules Page 1 Revised: January 30, 2012 April 3, 2012 Page 11 of 358

12 Members, Advisory Committee on Evidence Rules (cont d.) Honorable William K. Sessions III United States District Court Federal Building 11 Elmwood Avenue, 5th Floor Burlington, VT Elizabeth J. Shapiro, Esq. AD, Federal Programs Branch United States Department of Justice Civil Division 20 Massachusetts Ave., N.W., Room 7152 Washington, DC Paul Shechtman, Esq. Zuckerman Spaeder LLP 1540 Broadway, Suite 1604 New York, NY Honorable John A. Woodcock, Jr. Chief Judge United States District Court Margaret Chase Smith Federal Building 202 Harlow Street, 3rd Floor Bangor, ME Consultant, Advisory Committee on Evidence Rules Liaison Members, Advisory Committee on Evidence Rules Professor Kenneth S. Broun University of North Carolina School of Law CB #3380, Van Hecke-Wettach Hall Chapel Hill, NC Honorable Paul S. Diamond (Civil) United States District Court James A. Byrne United States Courthouse 601 Market Street, Room 6613 Philadelphia, PA Honorable John F. Keenan (Criminal) United States District Court 1930 Daniel Patrick Moynihan U.S. Courthouse 500 Pearl Street New York, NY Honorable Richard C. Wesley (Standing) United States Court of Appeals Livingston County Government Center Six Court Street Geneseo, NY Effective: October 1, 2011 Advisory Committee on Evidence Rules Page 2 Revised: January 30, 2012 April 3, 2012 Page 12 of 358

13 Liaison Members, Advisory Committee on Evidence Rules (cont d.) Secretary, Standing Committee Chief Counsel Rules Committee Officer Deputy Rules Committee Officer and Counsel Honorable Judith H. Wizmur (Bankruptcy) Chief Judge United States Bankruptcy Court Mitchell H. Cohen U.S. Courthouse 2nd Floor 400 Cooper Street Camden, NJ Peter G. McCabe Secretary Committee on Rules of Practice & Procedure Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room Washington, DC Phone Fax Andrea L. Kuperman Chief Counsel to the Rules Committees Bob Casey U.S. Courthouse 515 Rusk Ave. Houston, TX Phone Fax Jonathan C. Rose Rules Committee Officer Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room Washington, DC Phone Fax Benjamin J. Robinson Deputy Rules Committee Officer and Counsel to the Rules Committees Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room Washington, DC Phone Fax Effective: October 1, 2011 Advisory Committee on Evidence Rules Page 3 Revised: January 30, 2012 April 3, 2012 Page 13 of 358

14 LIAISON MEMBERS Liaison for the Advisory Committee on Appellate Rules Liaison for the Advisory Committee on Bankruptcy Rules Liaison for the Advisory Committee on Civil Rules Liaison for the Advisory Committee on Civil Rules Liaison for the Advisory Committee on Criminal Rules Liaison for the Advisory Committee on Evidence Rules Liaison for the Advisory Committee on Evidence Rules Liaison for the Advisory Committee on Evidence Rules Liaison for the Advisory Committee on Evidence Rules Dean C. Colson Judge James A. Teilborg Judge Arthur I. Harris Judge Diane P. Wood Judge Marilyn L. Huff Judge Judith H. Wizmur Judge Paul S. Diamond Judge John F. Keenan Judge Richard C. Wesley (Standing) (Standing) (Bankruptcy) (Standing) (Standing) (Bankruptcy) (Civil) (Criminal) (Standing) Effective: October 1, 2011 Liaison Members Page 1 Revised: January 30, 2012 April 3, 2012 Page 14 of 358

15 ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS Peter G. McCabe Secretary Committee on Rules of Practice & Procedure Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room Washington, DC Phone Fax Jonathan C. Rose Rules Committee Officer Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room Washington, DC Phone Fax Benjamin J. Robinson Deputy Rules Committee Officer and Counsel to the Rules Committees Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room Washington, DC Phone Fax James H. Wannamaker III Senior Attorney Bankruptcy Judges Division Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room Washington, DC Phone Fax Effective: October 1, 2011 Administrative Office of the U.S. Courts Page 1 Revised: January 30, 2012 April 3, 2012 Page 15 of 358

16 Scott Myers Attorney Advisor Bankruptcy Judges Division Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room Washington, DC Phone Fax Julie Wilson Attorney Advisor Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room Washington, DC Phone Fax Bernida D. Evans Management Analyst Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room Washington, DC Phone Fax Gale B. Mitchell Administrative Specialist Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room Washington, DC Phone Fax Effective: October 1, 2011 Administrative Office of the U.S. Courts Page 2 Revised: January 30, 2012 April 3, 2012 Page 16 of 358

17 FEDERAL JUDICIAL CENTER Joe Cecil (Rules of Practice & Procedure) Senior Research Associate Research Division Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E. Washington, DC Phone Fax Molly T. Johnson (Bankruptcy Rules Committee) Senior Research Associate Research Division Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E. Washington, DC Phone Fax Laural L. Hooper (Criminal Rules Committee) Senior Research Associate Research Division Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E. Washington, DC Phone Fax Marie Leary (Appellate Rules Committee) Research Associate Research Division Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E. Washington, DC Phone Fax Emery G. Lee (Civil Rules Committee) Senior Research Associate Research Division Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E. Washington, DC Phone Fax Tim Reagan (Evidence Rules Committee) Senior Research Associate Research Division Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E. Washington, DC Phone Fax Effective: October 1, 2011 Federal Judicial Center Page 1 Revised: January 30, 2012 April 3, 2012 Page 17 of 358

19 TAB 1A April 3, 2012 Page 19 of 358

21 Advisory Committee on Evidence Rules Minutes of the Meeting of October 28, 2011 Williamsburg, Virginia The Judicial Conference Advisory Committee on the Federal Rules of Evidence (the Advisory Committee ) met on October 28, 2011 in Williamsburg, Virginia. The following members of the Committee were present: Hon. Sidney A. Fitzwater, Chair Hon. Brent R. Appel Hon. Anita B. Brody Hon. John A. Woodcock, Jr. Hon. William K. Sessions III William T. Hangley, Esq. Marjorie A. Meyers, Esq. Paul Shechtman, Esq. Elizabeth J. Shapiro, Esq., Department of Justice Also present were: Hon. Marilyn L. Huff, Liaison from the Committee on Rules of Practice and Procedure and member of the Standing Committee s Style Subcommittee Hon. Wallace Jefferson, member of the Standing Committee Hon. Joan N. Ericksen., former member of the Evidence Rules Committee Hon. Judith H. Wizmur, Liaison from the Bankruptcy Rules Committee Hon. Andrew Hurwitz, former member of the Evidence Rules Committee Jonathan Rose, Chief, Rules Committee Support Office Benjamin Robinson, Esq., Rules Committee Support Office Peter McCabe, Esq., Secretary to the Standing Committee Professor Daniel J. Capra, Reporter to the Evidence Rules Committee Professor Kenneth S. Broun, Consultant to the Evidence Rules Committee Timothy Reagan, Esq., Federal Judicial Center Professor Laird Kirkpatrick, George Washington University Law School Professor Frederic Lederer, William and Mary Law School Professor Roger Park, Hastings Law School Professor Katherine Schaffzin, University of Memphis School of Law 1 April 3, 2012 Page 21 of 358

22 I. Opening Business Introductory Matters Judge Fitzwater, the Chair of the Committee, welcomed the members, liaisons, other members of the Standing Committee, and members of the public. The minutes of the Spring 2011 Committee meeting were approved. Judge Fitzwater noted that the Restyled Rules of Evidence will go into effect on December 1, The Restyled Rules have won two important awards for excellence in legal writing the Burton Award and the Clearmark Award. In honor of the Restyled Rules going into effect, the Advisory Committee sponsored a Symposium on the Restyled Rules of Evidence, which took place on the morning of the Advisory Committee meeting. Judge Fitzwater stated that the Symposium was a great success. He observed that the ideas exchanged by the panel members will provide an important historical record on the meaning of the Restyled Rules, and will also assist the Advisory Committee going forward. Judge Fitzwater thanked the Reporter for putting together the Symposium; William and Mary Law School for hosting the event; Professor Frederic Lederer for all his help in hosting the Symposium; the William and Mary Law Review for publishing the proceedings; and all the panelists and moderators who made such outstanding presentations. Judge Fitzwater then welcomed and introduced the two new members of the Advisory Committee, Judge Sessions and Judge Woodcock. Judge Fitzwater and the Reporter then provided heartfelt thanks to two former members Justice Hurwitz and Judge Ericksen who both provided excellent service to the Committee. Each has been and will be sorely missed. II. Proposed Amendment to Rule 803(10) In Melendez-Diaz v. Massachusetts, the Supreme Court held that certificates reporting the results of forensic tests conducted by analysts were testimonial and therefore the admission of such certificates (in lieu of testimony) violated the accused s right to confrontation. The Court reasoned that the certificates were prepared exclusively for use in a criminal trial, as substitutes for trial testimony, and so were testimonial within the meaning of the Confrontation Clause as construed by Crawford v. Washington. The Advisory Committee at its Spring 2011 meeting proposed an amendment to Rule 803(10), which currently allows the government to introduce a certificate to prove that a public record does not exist. A certificate of the absence of public record is ordinarily prepared for use in a criminal case, and so under Melendez-Diaz, such a certificate would be testimonial. The proposed amendment to Rule 803(10) adds a notice-and-demand procedure to the Rule: requiring production of the person who prepared the certificate only if after receiving notice from the 2 April 3, 2012 Page 22 of 358

23 government of intent to introduce a certificate, the defendant makes a timely pretrial demand for production of the witness. In Melendez-Diaz the Court declared that the use of a notice-and-demand procedure (and the defendant s failure to demand production under that procedure) would cure an otherwise unconstitutional use of testimonial certificates. The Advisory Committee s proposed amendment was approved for release for public comment. The Reporter reported to the Advisory Committee that no public comments had yet been received on the proposed amendment to Rule 803(10). Any comments that are received will, of course, be reviewed by the Committee at its Spring 2012 meeting. III. Possible Amendment to Rule 801(d)(1)(B) At the Spring 2011 meeting the Committee considered a proposal to amend Evidence Rule 801(d)(1)(B), the hearsay exemption for certain prior consistent statements. Under the proposal, Rule 801(d)(1)(B) would be amended to provide that prior consistent statements are admissible under the hearsay exemption whenever they would otherwise be admissible to rehabilitate the witness s credibility. The justification for the amendment is that there is no meaningful distinction between substantive and rehabilitative use of prior consistent statements. Under the current rule, some prior consistent statements offered to rehabilitate a witness s credibility specifically those that rebut a charge of recent fabrication or improper motive are also admissible substantively under the hearsay exemption. In contrast, other rehabilitative statements such as those which explain a prior inconsistency or rebut a charge of faulty recollection are not admissible under the hearsay exception but only for rehabilitation. There are two basic practical problems in the distinction between substantive and credibility use as applied to prior consistent statements. First, the necessary jury instruction is almost impossible for jurors to follow. The prior consistent statement is of little or no use for credibility unless the jury believes it to be true. Second, and for similar reasons, the distinction between substantive and impeachment use of prior consistent statements has little, if any, practical effect. The proponent has already presented the witness s trial testimony, so the prior consistent statement adds no real substantive effect to the proponent s case. At the Spring 2011 meeting the Committee unanimously agreed that the current distinction between substantive and impeachment use of prior consistent statements is impossible for jurors to follow. But some members were concerned that any expansion of the hearsay exemption to cover all prior consistent statements admissible for rehabilitation might be taken as a signal that the Rules were taking a more liberal attitude toward admitting prior consistent statements generally. Parties might seek to use the exemption as a means to bolster the credibility of their witnesses. The Committee at the Spring meeting resolved to consider the amendment further, and also to seek the input of public defenders, the Department of Justice, and state court judges on the merits of amending Rule 801(d)(1)(B). Before the Fall meeting, the Department of Justice submitted a letter in favor of the amendment and the Public Defender submitted a letter opposed to the amendment. Justice Appel contacted courts in three states and reported that there was recognition that the current 3 April 3, 2012 Page 23 of 358

24 distinction between rehabilitation and substantive use was confusing and not meaningful but that there was no sense of urgency to amend the rule in those three states. At the Fall meeting, the Public Defender expressed concern that courts would end up admitting more prior consistent statements under the amendment, leading to impermissible bolstering of witnesses. The Reporter responded that the amendment by its terms would admit no statements that are not already admitted for rehabilitation and any possible risk of abuse would be tempered by the court s judicious use of Rule 403, as emphasized in the proposed Advisory Committee Note. The Reporter also noted that in Minnesota, where the Rule is similar to the proposed amendment, there does not appear to be any indication in the case law that prior consistent statements had been more liberally admitted. The Public Defender also expressed concern that if a witness had made both consistent and inconsistent statements, all of them admissible for impeachment or rehabilitation, then under the amendment all of the consistent statements would be admissible for their truth while the prior inconsistent statements if not made under oath would be admissible only for impeachment and not for their truth. The Public Defender argued that in this situation the judge would completely confuse the jury by giving different instructions for consistent and inconsistent statements. (But in fact the judge in such a situation would not give any instruction about the consistent statements because, under the amendment, the consistent statements would be admissible for both rehabilitation and substantive use this means that under the amendment there will be fewer, not more, instructions). A member of the Committee noted that the rule as it exists is logically inconsistent and intellectually dishonest; as such the Committee should approve the amendment to further its goal of providing consistent and logical rules. Another member observed that prior consistent statements often had value as corroboration. He also noted that the clearer the judge can be to the jury, the better for the system and the instruction required as to certain prior consistent statements under current law is incomprehensible to jurors and accordingly brings disrespect to the system. The Reporter and the Chair noted that the proposed amendment had been greeted with enthusiasm by some of the district court judges on the Standing Committee when it was raised as an information item at the Spring 2011 meeting. Those judges remarked that in their experience, an instruction that a prior consistent statement was admissible for rehabilitation and not for its truth is one that jurors find impossible to follow. One Committee member suggested that the instruction currently given for consistent statements admissible only for rehabilitation might in fact have some value for counsel in argument to the jury. Other members of the Committee were undecided about the amendment and suggested the Committee seek more input from judges and interested groups to determine whether it would be worthwhile to proceed with an amendment. The Committee ultimately voted to table the proposal and conduct further research so that 4 April 3, 2012 Page 24 of 358

25 it could be considered on the merits at the Spring 2012 meeting. The Reporter stated that he would work with Dr. Reagan, the FJC representative, to send out a survey to district judges to seek their views on the need for and merits of the proposed amendment. The Reporter stated that he would also send the proposal to the ABA, the American College of Trial Lawyers, the NACDL, and other interested groups for their views on the proposal. The Chair also stated that he would raise the proposal as an information item at the next Standing Committee, in order to seek guidance on whether the amendment was worth pursuing. The working language for the proposed amendment, to be considered at the next meeting, is as follows: (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: (1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: * * * (B) 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 rehabilitates [is otherwise admissible to rehabilitate] [supports] the declarant s credibility as a witness; IV. Crawford Developments The Reporter provided the Committee with a case digest of all federal circuit cases discussing Crawford v. Washington and its progeny. The digest was grouped by subject matter. The goal of the digest is to allow the Committee to keep apprised of developments in the law of confrontation as they might affect the constitutionality of the Federal Rules hearsay exceptions. The Committee reviewed the memo and the Reporter noted that with the exception of Rule 803(10), the proposed amendment currently out for public comment nothing in the developing case law mandated an amendment to the Evidence Rules at this time. The Reporter observed that the Supreme Court is currently considering the case of Williams v. Illinois, in which it will address whether an expert witness can testify to the results of a lab test where the certificate of the test is not itself admitted at trial. The Court s decision in Williams may have an effect on the application of Rule 703. The Committee resolved to continue monitoring developments on the relationship between the Federal Rules of Evidence and the accused s right to confrontation. 5 April 3, 2012 Page 25 of 358