Among the recent proposed changes to the Federal Rules of Practice and Procedure are amendments to Evidence Rules 801(d)(1)(B), and 803(6)-(8). The public comment period opened August 15, 2012, and closes February 15, 2013.  

Rule 801(d) outlines criteria for statements that are excluded from hearsay, and the proposed change to this rule would add to the conditions for “a declarant-witness’s prior statement” that it “otherwise rehabilitates the declarant’s credibility as a witness.” According to the committee notes, “The amendment does not change the traditional and well-accepted limits on bringing prior consistent statements before the factfinder for credibility purposes.”  

The Rule 803 proposed changes also involve exceptions to the rule against hearsay, specifically “regardless of whether the declarant is available as a witness.” Rule 803(6)(E) (records of a regularly conducted activity) would be changed to “clarify that if the proponent has established the stated requirements of the exception—regular business with regularly kept record, source with personal knowledge, record made timely, and foundation testimony or certification—the burden is on the opponent to show a lack of trustworthiness.” The proposed changes to Rule 803(7)(C) (absence of a record of a regularly conducted activity) and (8)(B) (public records) would be consistent with the 803(6) change.