Federal Rule of Criminal Procedure 58(b)(2)(H)

The Federal Rule of Criminal Procedure 58 was amended in 2014 to include subsection 58(b)(2)(H), which states:

At the defendant’s initial appearance on a petty offense or other misdemeanor charge, the magistrate judge must inform the defendant of the following: . . . (H) that a defendant who is not a United States citizen 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.

Fed. R. Crim. P. 58(b)(2)(H). This amendment took effect on December 1, 2014.

The United States is party to the Vienna Convention on Consular Relations, which is an international treaty that governs the consular relations between different nations. Article 36 of the Vienna Convention on Consular Relations provides that a foreign citizen who is arrested and detained may request that his consul be notified of his arrest and detention. Further, the United States is party to numerous bilateral agreements that fully require the arresting and detaining nation to notify the foreign citizen’s consul of his arrest and detention.

This subsection requires a magistrate judge to provide every defendant with this information in order to ensure that all United States treaty obligations, including the Vienna Convention on Consular Relations and bilateral agreements, are satisfied. A determination of the defendant’s citizenship does not need to be made before the information is provided to him or her.

In Sanchez-Llamas v. Oregon, the Supreme Court held that where a foreign citizen defendant is not apprised of his Article 36 rights, he has no judicial remedy. However, this new subsection does not address these potential rights and remedies.

Federal Rule of Evidence 803

Recent changes made to Federal Rule of Evidence 803 (6)-(8) became effective on December 1, 2014. The previous language of (6)-(8), operative prior to December 1, 2014, and the new language, effective since December 1, 2014 is outlined below:

The previous rule of (6) stated: (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by–or from information transmitted by–someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

The new language of (6) states: (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by–or from information transmitted by–someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

The rationale for the change to (6) is an effort to clarify that once the proponent has established “regular business with regularly kept record, source with personal knowledge, record made timely, and foundation testimony or certification,” then it becomes the opponent’s burden to prove that the source of the information or method or circumstances of preparation are untrustworthy. Not all courts have consistently imposed this burden on the opponent, and such an imposition is appropriate because the proponent’s establishment of the basic admissibility requirements is enough to advance a presumption that the record is reliable.

The previous language of (7) stated: (7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if: (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.

The new language of (7) states: (7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if: (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.

The rationale for this change in the language is an effort to clarify that once the proponent has established the stated requirements of the exception in Rule 803(6), the opponent bears the burden of showing that the possible source of the information, or some other circumstances, indicate a lack of trustworthiness. This language change is consistent with the language change to (6).

The previous language of (8) stated: (8) Public Records. A record or statement of a public office if: (A) it sets out:(i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

The new language of (8) reads: (8) Public Records. A record or statement of a public office if:(A) it sets out:(i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.

The rationale for the changes to (8) is once again to clarify who bears the burden once the proponent has satisfied the initial requirements of the Rule. The burden shifts to the opponent to show that the source information or other circumstances are untrustworthy. Courts have previously been inconsistent regarding upon which party this burden is placed. (8), as with (7), maintains consistency with (6) in this aspect.

Effective December 1, 2014

Federal Rule of Evidence 801

Recent changes have been made to Federal Rules of Evidence 801, which focuses on exclusions from heresy. Statements defined as heresy are statements that a declarant did not make while testifying at the current trial or hearing and that a party offers in evidence to prove the truth of a matter asserted in the statement. Prior to the change, which became effective December 1, 2014, Federal Rule of Evidence 801(d)(1)(B) stated that a declarant-witness’s prior statement is not heresy if  “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.” Fed. R. Evid. 801(d)(1)(B). Essentially, before the rule change took place, consistent statements could be only substantively used to rebut recent fabrication or improper motive charges. Therefore, many prior statements were potentially admissible only for rehabilitating a witness’s credibility. This left out using consistent statements to substantively rebut general charges against a witness’s credibility, such as charges of inconsistency or faulty memory.

The new rule reads “a statement that meets the following conditions is not hearsay: (1) 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 (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”. Fed. R. Evid. 801(d)(1)(B). The new change retains the original purpose and limitations of the rule in that it allows parties to bring prior consistent statements before the fact finder for credibility purposes. However, the change now extends the substantive effect to prior consistent statements of rebutting other attacks on a witness’s credibility besides just charges of recent fabrications or recent improper motives. The changes results in a broader application in use of consistent statements, but it does not make any consistent statement admissible that was not admissible before.

Effective December 1, 2014

Federal Rule of Civil Procedure 26(b)(1)

As it currently stands, the text of FRCP 26(b)(1) states the following: “Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense, including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identify and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.”

The proposed amendment would limit the broad scope of the current rule by requiring that discovery be “proportional to the needs of the case.” The text of the proposed rule is as follows: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case considering the amount in controversy, the importance of the issues at stake in the action, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefits.” The proposal would eliminate the option to have discovery “relevant to the action” and instead limits discovery to the claims and defenses in the action.

The Advisory Committee has decided to enact this more tailored version of the previous rule due to the fact that the old rule allowed discovery of any information so long as it was reasonably calculated to lead to the discovery of admissible evidence. Despite a revision of the rule in 2000, many lawyers and judges reading that language have concluded that, since almost any information could potentially lead to relevant and admissible evidence, almost anything is discoverable. Given the growth in electronically stored information (“ESI”) and advances in storage capability, such an interpretation has rendered the discovery process unduly burdensome and expensive. The new rule will become effective on December 1, 2015.

Federal Rule of Criminal Procedure 12(b)(3)

Effective December 1, 2014

The former Federal Rule of Criminal Procedure 12(b)(3) stated that a party must make the following motions before trial: a motion alleging defect in instituting the prosecution, a motion alleging defect in the indictment or information, a motion to suppress, a Rule 14 motion to sever charges or defendants, and a Rule 16 motion for discovery. Fed. R. Crim. P. 12(b)(3) (amended December 1, 2014). Motions alleging defect in the indictment or information could be made at any time while the case was pending in order to invoke the court’s jurisdiction or state an offense. Id. 

The Advisory Committee’s amendment to Rule 12(b)(3), now clarifies that the five categories of motions set out in the former rule 12(b)(3), must be raised before trial if the issue can be decided without a trial “on the merits” and if the basis for the motion is readily available. The new language also provides specific examples of motions for a defect in instituting the prosecution and a defect in the indictment or information. Motions claiming a defect in instituting the prosecution, include improper venue, preindictment delay, a violation of the constitutional right to a speedy trial, selective or vindictive prosecution, and an error in the grand-jury proceeding or preliminary hearing. Defects in the indictment or information includes joining two or more offenses in the same count, charging the same offense in more than one count, lack of specificity, improper joinder, and failure to state an offense. The Committee only made stylistic changes to the other three categories of suppression of evidence, Rule 14 severance of charges or defendants, and Rule 16 discovery motions.

The Committee indicated the “then reasonably available” language in the amendment was intended to ensure a claim that could not have been raised on time by a party would not be subject to the strict limitation on review in 12(c)(3). The old “trial on the general issue” language was deemed too archaic, but the meaning remains the same with “on the merits.” Additionally, the lists of motions under “a defect in instituting the prosecution” and “errors in indictment or information” are not meant to be exclusive; neither are they meant to supersede statutes that implement a time to make specific motions.  Rule 12(b)(3)(B) has also been amended to prohibit a court from hearing claims about errors in the indictment or information at any time while the case is pending, unless the claim is that the defect fails to invoke the court’s jurisdiction or state an offense. Prior to the Committee’s amendment, this particular charging error was considered fatal when raised. Further, the error was excluded from the general requirement that charging deficiencies be raised prior to trial. In United States v. Cotton, the Court determined that jurisdiction did not have the same meaning as it did in 1887, and concluded that the Court’s constitutional and statutory power to hear a case can never be waived or forfeited.  535 U.S. 625 (2002). Therefore, defects in an indictment could not deprive a Court of its power to hear a particular case.

 

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