Amendments to Federal Rules of Evidence Effective Dec. 1, 2023

Changes to three Federal Rules of Evidence took effect on December 1, 2023 and are applicable “all proceedings thereafter commenced and, insofar, as just and practicable, all proceedings then pending.” 

The amendments to Rules 106, 615 and 702 are intended to provide clarity to the subject matter of each rule and are the product of four years of study by the Advisory Committee on Evidence Rules (Committee).

As amended, Rule 106 (often referred to as the rule of completeness) states:

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 amendment struck from both the title and the body of the rule the caveat that the statements be written or recorded and added the language permitting the adverse party to introduce all or part of the statement over a hearsay objection.

As reflected in the Committee Notes, the purpose of amending Rule 106 was to supplant common law, ” “allow [a] completing statement to be admissible over a hearsay objection”, and “cover unrecorded oral statements,” with the ” [t]he overriding goal of the amendment . . . to treat all questions of completeness in a single rule.”

Amended Rule 615 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 amendments to Rule 615 are intended to address whether it applies “only to exclude witnesses from the courtroom (as stated in the text of the rule) or does it extend outside the confines of the courtroom to prevent prospective witnesses from obtaining or being provided trial testimony?”

Amended Rule 615 now clarifies who cannot be excluded from the courtroom and expressly prohibits those excluded from the courtroom from being told about the trial testimony or being provided with access to the trial testimony.

As amended, 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.

According to 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.”   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.”

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