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

Leave a Reply