On December 1, 2023, amendments to three of the Federal Rules of Evidence – Rules 106, 615, and 702 – will take effect. The amended rules will apply to "all proceedings thereafter commenced and, insofar, as just and practicable, all proceedings then pending." For those who often litigate in federal court, or have open cases in federal court, it will be important to understand the changes and how they will affect your presentation of evidence to the court and at trial.
In this blogpost, I will present the old rule followed by the new rule and provide a highlight and short summary of the changes. The proposed amendments and Committee Notes to each can be found here.
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Federal Rule of Evidence 106 deals with the introduction of the remainder or related statements that in fairness should be considered when a party introduces only part of a statement. The old rule stated:
Rule 106. Remainder of or Related Writings or Recorded Statements
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.
Amended Rule 106 will now read as follows:
Rule 106. Remainder of or Related Statements
If a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part—or any other statement—that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.
The key changes to note in the amendments to this rule are: (1) the rule now explicitly states that there can be no hearsay objection to admitting the remainder or related statement, if in fairness the remainder or related statement ought to be considered. This change was made because "[c]ourts have been in conflict over whether completing evidence properly required for completion under Rule 106 can be admitted over a hearsay objection." (2) the rule now covers all statements, including oral statements that have not been recorded and statements made through conduct or sign language. It should be remembered, however, that a party "seeking completion with an unrecorded statement would of course need to provide admissible evidence that the statement was made. Otherwise, there would be no showing that the original statement is misleading, and the request for completion should be denied. In some cases, the court may find that the difficulty in proving the completing statement substantially outweighs its probative value—in which case exclusion is possible under Rule 403." See, Committee Notes to Rule 106 Proposed Amendment.
Federal Rule of Evidence 615 deals with excluding witnesses from the courtroom. Old Rule 615 stated:
Rule 615. Excluding Witnesses. At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as the party's representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party's claim or defense; or
(d) a person authorized by statute to be present.
Amended Rule 615 now provides:
Rule 615. Excluding Witnesses from the Courtroom; Preventing an Excluded Witness's Access to Trial Testimony
(a) Excluding Witnesses. At a party's request, the court must order witnesses excluded from the courtroom so that they cannot hear other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(1) a party who is a natural person;
(2) one officer or employee of a party that is not a natural person if that officer or employee has been designated as the party's representative by its attorney;
(3) any person whose presence a party shows to be essential to presenting the party's claim or defense; or
(4) a person authorized by statute to be present.
(b) Additional Orders to Prevent Disclosing and Accessing Testimony. An order under (a) operates only to exclude witnesses from the courtroom. But the court may also, by order:
(1) prohibit disclosure of trial testimony to witnesses who are excluded from the courtroom; and
(2) prohibit excluded witnesses from accessing trial testimony.
The Committee Notes to the proposed amendments to Rule 615 explain that is has been amended for two purposes. "(1) Most importantly, the amendment clarifies that the court, in entering an order under this rule, may also prohibit excluded witnesses from learning about, obtaining, or being provided with trial testimony," and not just being excluded from the trial. Thus, under newly added subsection (b), the court has discretion to "extend the sequestration beyond the courtroom, to prohibit those subject to the order from disclosing trial testimony to excluded witnesses, as well as to directly prohibit excluded witnesses from trying to access trial testimony." "(2) Second, the rule has been amended to clarify that the exception from exclusion for entity representatives is limited to one designated representative per entity…. The rule does not prohibit the court[, however,] from exercising discretion to allow an entity-party to swap one representative for another as the trial progresses, so long as only one witness-representative is exempt at any one time."
Finally, with respect to Federal Rule of Evidence 702, which pertains to expert witnesses, the Old Rule 702 provided the following:
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
The new Rule 702 states:
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.
Rule 702 has been amended in two respects. As explained in the Committee Notes, "First, the rule has been amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule….This is the preponderance of the evidence standard that applies to most of the admissibility requirements set forth in the evidence rules." See, Committee Notes to Proposed Amendment to Rule 702. The rule was amended to include the required language because courts had failed to apply correctly the reliability requirements of the rule, instead defaulting to the adage of these are questions of weight and not admissibility. Under the correct application of the rule, "once the court has found it more likely than not that the admissibility requirement has been met, any attack by the opponent will go only to the weight of the evidence."
Second, "Rule 702(d) has also been amended to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert's basis and methodology." As the Committee explains, "the amendment is especially pertinent to the testimony of forensic experts in both criminal and civil cases. Forensic experts should avoid assertions of absolute or one hundred percent certainty—or to a reasonable degree of scientific certainty—if the methodology is subjective and thus potentially subject to error. In deciding whether to admit forensic expert testimony, the judge should (where possible) receive an estimate of the known or potential rate of error of the methodology employed…." However, nothing in the amended rule imposes new or specific procedures and the court is not required to "nitpick an expert's opinion…. The [ ] standard does not require perfection."
Proposed but not yet adopted amendments: while the amendments to Rules 106, 615 and 702 will take effect on December 1, 2023, there are a few other proposed amendments to the Federal Rules of Evidence that are currently in the works and may become effective in December 2024. See again, proposed amendments and Committee Notes.
These include proposed amendments to the following Rules of Evidence:
- Rule 611 Mode and Order of Examining Witnesses and Presenting Evidence – as explained in the Committee Notes, a new subdivision (d) is added to provide standards for the use of "illustrative aids" (such as blackboard drawings, photographs, diagrams, PowerPoints, video depictions, charts, graphs and computer simulations that are used to help the jury understand what is being communicated to them).
- Rule 613 Witness's Prior Statement – according to the Committee Notes, subdivision (b) has been amended "to require that a witness receive an opportunity to explain or deny a prior inconsistent statement prior to the introduction of extrinsic evidence of the statement."
- Rule 801 Definitions That Apply to This Article; Exclusions from Hearsay – an addition is made to subdivision (d)(2) – "If a party's claim or potential liability is directly derived from a declarant or the declarant's principal, a statement that would be admissible against the declarant or the principal under this rule is also admissible against the party."
- Rule 804 Exceptions to the Rule Against Hearsay—When the Declarant is Unavailable as a Witness – as explained in the Committee Notes, subdivision (b)(3)(B) has been amended "to require that in assessing whether a statement is supported by corroborating circumstances that clearly indicate its trustworthiness, the court must consider not only the totality of the circumstances under which the statement was made, but also any evidence corroborating or contradicting it."
- Rule 1006 Summaries to Prove Content – the Committee Notes explain that this rule has been amended to clarify that a party may offer a Rule 1006 summary as evidence. In addition, the rule has been amended to allow a party to offer the summary as evidence regardless of whether the underlying voluminous materials reflected in the summary have been admitted. Finally, the rule has been amended to clearly state that illustrative aids are not covered by Rule 1006, but instead are governed by Rule 611(d).
