On this episode, host Paul W. Grimm, a retired federal judge and director of the Bolch Judicial Institute at Duke Law, and Professor Dan Capra, the Reed Professor of Law at Fordham University and a reporter for the Advisory Committee of the Federal Rules of Evidence, continue their conversation about amendments to the Federal Rules of Evidence. This episode focuses on amendments to Rules 613, 801, 804, 1006, and a new Rule, 107, which are slated to take effect on December 1, 2024. Their discussion offers context for why new rules and amendments are necessary to ensure uniform application across the federal courts.
Speaker 1: Hello and welcome to order in the court, a podcast production of the Bolch Judicial Institute of Duke Law School. Here’s your host, retired federal judge and the director of the Bolch Judicial Institute, Paul Grimm.
Paul W. Grimm: Professor Capra, welcome back to Order in the Court. In our last episode, we discussed some evidentiary rules that have been approved to go into effect on December 1st, 2023, amendments to those rules. But there are also some evidence rules — proposals — that have been approved to take effect on December 1st, 2024, and I’d like to focus on those in today’s program.
So welcome and let’s jump in and get started. Dan, one of the things that I noted when I was still on the bench before I retired is that there was a lot of confusion when people wanted to introduce a variety of things to help illustrate the testimony of a witness or the evidence that was coming in. Sometimes under evidence Rule 1006 — the voluminous writings, recordings and photographs rule — they wanted to introduce a summary that was a substitute for the underlying evidence itself under Rule 1006.
Sometimes they had a demonstrative aid that was, for example, just illustrated and picked up what a witness had just finished testifying, such as if you had an auditor get on the stand and talk about an audit and 15 specific findings that they reached, they might put a chart up with those findings.
And there was always a lot of confusion about the phrase “demonstrative evidence”, whether it was substantively admissible or just an illustrative aid. Some of the courts got really eloquent and talked about pedagogical aids and it was really confusing, and it was confusing to the juries, it was confusing to the judge, and the case law seemed to make it really confusing. So, we’ve got a pair of rule changes, a new rule, Rule 107, and it ties in with Rule 106, which I think from my perspective, stitches up very neatly some of these problems in an area where it’s really important for what I would call trial advocacy. Could I get you just to sort of globally speak about 107 and 1006 together and then I’ll unpack with you the 107 and then we’ll go back to 1006 and tie that one up in a bow and move on to the other rules.
Prof. Daniel Capra: We approached it, the committee approaches, I believe, and I certainly did with the idea that a lot of it is about terminology and that the use of certain words become confusing. It’s like Paul, maybe you’ll like this analogy. When the rule started out, there was this idea of what an admission was like a party admission.
And so, people kept using admission, admission, admission, admission. But actually that’s the wrong term because it’s not really an admission and it gets confused with declarations against interest. And so in 2011, what the committee did as part of the re-styling was to clarify that 801(d)(2) are party opponent statements — got rid of the term “admission” — and now it’s, I don’t know, 14 years later and many people are still using the term “admission,” but some are not. So, you kind of move the needle, right? So the problem with this case in this situation is with the term “demonstrative,” I believe. It’s been used in all to cover all sorts of things.
And there’s a big case in the Seventh Circuit by Judge Hamilton that talked about how most of the problems and figuring out what’s going on is we all keep using “demonstrative” for everything.
And so, what this rule is intended to do is to provide kind of a lexicon really to basically define what is what. Alright? So the way the rule works for 107 is to say that if what you’re doing is introducing this quote “demonstrative,” but actually not to prove any fact, rather to illustrate what is gone before or as part of an opening or closing argument, then that’s not evidence at all. It makes that point that it’s not evidence at all. And we want to call it an “illustrative aid.” You can call it “pedagogical,” that was also used in the committee note as a possibility, but don’t call it “demonstrative” because it’s not demonstrative in the sense of demonstrating how an event occurred.
And so, to even consider a computerized recreation of an event to be — that wouldn’t be a demonstrative — but you consider something that has a kind of computerized way of explaining how hearts work or how things are put together in a car that would be illustrative because it would go along with an expert’s testimony. So that was the dividing line on the one end and you referred to it well about what’s the difference in that situation. And then as you say, Paul, there’s a problem in distinguishing summaries and some summaries are actually intended to substitute for the voluminous evidence. That’s 1006, but courts got this wrong often and confuse that kind of summary with a summary that is just a summary of the evidence that’s already been presented. What this rule is intended to do along with the amendment to 1006 is to set forth three categories of, I guess you would call it broadly “information.”
One is the information that’s actually offered to prove a fact that’s demonstrative not covered by these rules — [it is] covered by 403, hearsay rule, authenticity, all that but not covered by these rules. The other in the middle of this is the, what we would call, an “illustrative aid,” which is not as defined in the rule that which is not evidence in itself, but offered to illustrate and help the fact finder understand the testimony that’s been provided or argument that’s been provided. And then you have on the final end their rule 1006 summaries which are not altered, but it’s just clarified that if it’s substituting for voluminous admissible evidence, well then it’s 1006 and it is treated as evidence if it’s a summary of evidence that’s already been presented. That’s not a 1006 summary. It’s intended to illustrate and make things easier for the fact finder. That’s under rule 1007, actually 107. So that’s the way it’s supposed to be breaking down. And hopefully this rule will help lawyers and judges understand those differences.
Paul W. Grimm: I think that there’s no doubt that it will, Dan, I know that I had a particular case, it was one of those romance fraud cases, and it involved a large number of victims in a long period of time in a lot of different accounts. And the government offered a summary that I allowed in under Rule 1006 of all of the entries that were below $9,000 right around there so that you didn’t have a structuring problem. And so, you had an account, a bank account, where you might’ve had a thousand entries, but there were 200 that had these characteristics, and they picked out those 200 and they put them in a chart. They had an accountant, forensic accountant, come in and talk about it. I allowed it in the Rule 1006 and on appeal, there were, it seemed, like dozens of grounds of error on appeal that the defendant raised, all of which were rejected. The Fourth Circuit said that I had erred. That it really wasn’t [allowed] because the summary should have been of all of the documents, not just the ones that were suspicious. I disagreed with that, but that was their ruling.
Prof. Daniel Capra: Well, the ones that were suspicious were themselves voluminous, correct?
Paul W. Grimm: Yes, exactly. So I never really understood that, but nonetheless, they said it was harmless because it was a pedagogical tool. I mean to me that was very personal. This rule is very personal.
Prof. Daniel Capra: I get it. With all due respect, the Fourth Circuit has not been good on 1006. I mean they have one helpful case — I think the Brey case — but they were all over the map and that was actually the Fourth Circuit. I don’t want to call out Circuits, but the Fourth Circuit was one of the reasons why 1006 got amended. That’s all I’ll say.
Paul W. Grimm: So I want to, I think it’s very important, particularly now Dan, since we’re in such a technology centric time, and I’ve noticed that in the 10 years that I was a district judge, I don’t think that I saw any cases — particularly criminal cases — where we didn’t have some really technical evidence that came in. And for folks to get a full appreciation of just how helpful this pair of rule amendments will be, it goes from everything as crude as just sort of a hand sketch drawing that the officer uses to sort of set the stage for the intersection in the road where they were called to the attention to begin their investigation, all the way up to what I think just became almost standard operating procedure for both defense and prosecutors and in civil cases, which was a PowerPoint during opening and closing, and everything in between.
And additionally, as you pointed out, the instances where I had some under the Assimilative Crimes Act, I had some vehicular homicide cases that were on federal land. So, they came for trial and accident reconstruction animation where they would put all this data into a computer that would, all the discreet individual inputs had to be evidentially admitted and then it would run the program and it would do a visual of how that presented itself. So, I really think that these pair of rules, almost more than anything else are really tools that when you understand them will help lawyers be better advocates and better present their evidence.
Prof. Daniel Capra: I think this 107 is going to apply in every case. What really troubled especially the chair of the committee is that these things are used in every case, and there’s no rule of evidence that even regulates it. So, courts are hunting for rules to regulate and of course they fell on Rule 403, where courts tend to go when they can’t figure out something else. The problem with that is that talks about probative value of evidence. Rule 403 is about admitting evidence to prove a fact, and then the other place you go to when you don’t have anything else is Rule 611(a), and that’s where it seems, to me, that that’s where a court should go now, although if you look at that rule — at least technically — it talks about evidence and presenting witnesses and then this is not what it’s talking about.
So, 107 specifically says it’s not evidence. You know, I was thinking as we were getting this together is it’s in a way kind of odd to have a rule in the federal rules of evidence that doesn’t regulate evidence, but 103 doesn’t regulate evidence, it tells you how to preserve and I mean I don’t think there’s anything wrong or outside the authority of the federal rules of evidence to basically deal with things that happen at a trial that aren’t technically evidence. I think that’s a good thing, but it’s better that it’s in a specific rule than laying around somewhere else.
Paul W. Grimm: Yeah, I think that’s right. And 611(a) is so broad to control the taking of evidence to effectively ascertain the truth is a pretty broad category, but it does—
Prof. Daniel Capra: Well, you know about 611(a), one thing that the chair, Judge Schultz, wanted was and that I did was a memo about all the uses of 611(a). His thought was, you know, it’s kind of broad and maybe we could put something in the rule to kind of contextualize and provide maybe examples or something more in the rule. So I went through it, and obviously as you know, Paul, there’s like hundreds of cases and most of them, actually many of them don’t even cite 611(a), but they’re using 611(a) and courts were doing really a lot of things under 611(a), I found one case where the court said, you say you’re the plaintiff and you’re the defendant, nah, under 611(a), you’re the plaintiff and you’re the defendant. Like switch them around. You know total identity crisis, they would, they changed sequestration orders contrary to 615 under 611(a) they would, there’s all sorts of stuff. So I went back and reported to the committee about this. They said, now maybe we shouldn’t mess with 611(a) because anything you do would limit what a judge thinks they can do under 611(a). So it stays where it is.
Paul W. Grimm: It’s a sleeping dog, and think we’ll let it lie.
Prof. Daniel Capra: Sleeping Dog, right. But I think it’s good to cut this particular part out of 611(a) and make it a real rule.
Paul W. Grimm: What I want to do is I want to talk about the issue that comes up a lot of times with lawyers and that is, okay, we’ve got this new 107, we’ve got these illustrative aids, but now what do we do when the jury deliberates? We know that if it’s evidence, the summaries for example, under 1006, they go back because they’re evidence and Rule 107(a), if it’s approved and goes into effect, will give the court a balancing test to decide when to allow illustrative aids to be used to understand evidence or argument. And it has a balancing test built in that the judge is supposed to consider in terms of whether or not the jury just gets to see it during the trial itself or afterwards. Can you help our listeners understand what that balancing test is.
Prof. Daniel Capra: Yea, so 107(a) is about whether it’s allowed to be presented at all. What it provides is a balancing test. It looks like the 403 test, and that’s intentional, but it considers a different factor, on the positive side. The 403 issues — the positive side — is it’s probative value. That is to say how far does it advance the case in terms of disputed facts? That’s what probative value means. Here, what the judge must balance, I guess, the way I would put it is the illustrative value, how much it’ll actually help the finder of fact understand the evidence that’s been presented. And you know illustrative aids can vary in that some illustrative aids aren’t very helpful in understanding probably because they’re being offered for some other purpose and some are not helpful because they cherry pick, for example, or they misrepresent the evidence has been presented.
So those are the things that you would consider on that balancing test. And the balancing test is pitched exactly the same way as Rule 403 — the negative factors prejudice, confusion and delay. I guess that should stop there. What could be prejudicial about a about an illustrative aid? Well, there’s really two things. One is that it is misleading. That’s one possibility. And the other is it kind of looks like proof of the event, but it’s not close enough or good enough or strong enough to be proof of the event. It’s just going to let the jury (probably the jury) mistake what the import of the information is. So those are the negative factors, and they must substantially outweigh the illustrative value. There was thought given to have a different balancing test there and the reasoning was this way. With respect to 403, what you have by definition is evidence that helps in the search for truth. It furthers the dispute.
That’s the probative value part of it. And so, you shouldn’t lose that easily, and that’s why the prejudice must substantially outweigh the probative value. And maybe the illustrative value of something is not as important as the probative value of something. And so, maybe you would have a different balancing test, for example, that the prejudice must you know, the prejudice outweigh or something like that instead of substantially outweigh. But after a considerable thought, it was determined that it’s best to have the same balancing because otherwise it just gets too confusing. You’re applying a 403 balancing test to a true demonstrative and a different test to an illustrative, and there’s going to be still going to be lines between the two. So the idea was to cut it the same way. So that is the long-winded way of saying that’s the balancing test for whether it gets introduced at all.
Paul W. Grimm: Just to follow up on that before we go onto the next one is, which I think was wise, is you know it’s really tough when you have balancing tests that tilt different ways. Look at 609, we have three separate balancing tests in the same rule.
Prof. Daniel Capra: Yeah, that’s awful.
Paul W. Grimm: And while there’s a lot of thought behind that and each individually, it’s rational when you look at it when you have three separate balancing tests in the same rule. It’s kind of the poster child, I call that you really have to be an evidence nerd to be able to think that that’s really cool stuff because you’re shifting on tilting strongly towards admissibility, strongly against, and then sort of a little bit easier to exclude it for the defendant.
Prof. Daniel Capra: I proposed 609 — I know this is off point — but I just taught it. So I ran across a case with old convictions, the 609(b), which has a different balancing test. The trial judge to the Sixth Circuit used the wrong balancing test, used the 403 test, but he should have used the 609(b) test. And so, it got up to the appellate court and they said well, you used the wrong test and sent it back. So I asked my students, well, this judge has clerks, and how’d they use the wrong balancing test? I’ll tell you how: This rule is confusing. There’s like seven of them in there. It’s human error, so you don’t want to set that up for this rule, that’s for sure. Right?
Paul W. Grimm: You were about to go into 104(b), which tells you whether the jury gets to take it back with them when they deliberate. So help us out with that aspect.
Prof. Daniel Capra: So 107 has a provision about whether these illustratives go to the jury during deliberations. I would say that under current case law, most courts say that that is not permitted, but there is some division in the case law about this. One possibility would be to write the rule as saying, well, if it’s admitted only as an illustrative, in other words it’s not offered to prove a fact, then it definitely must not be allowed to go to the jury in deliberations because it’s not evidence, and it could be mistaken during deliberations. It’s hard to write a rule that has an absolute in it. It seems the federal rules have very few absolutes, and it’s kind of maybe a bit hubris to think that you could think of all the possible situations in which this issue might arise. So, what the committee did was to say that these should not go back to the jury or they must not go back to the jury unless obviously both parties consent. That’s a no-brainer.
And the other is if there’s some good cause requirement. The committee note I think comes down pretty hard on the idea that it should not be allowed, but I mean you just never know. And so, this good cause requirement is intended to be applied very, very strictly, but the situation where something’s really confusing and the jury says, “We really need this” and maybe ask for it, and the judge says, “I think that is a pretty good illustrative and I’ll instruct that they can’t use it as evidence.” That’s a situation where, you know, it might be allowed. And as I say, the experience in the federal courts is different about this. So that’s why the rule says what it does.
Paul W. Grimm: And I think that this helpful to reflect that you really do have to keep in mind that trials are unpredictable things, and you’re absolutely right. You can’t factor out every conceivable appropriate versus inappropriate use of particular evidence.
Prof. Daniel Capra: You know, it’s like you got a PowerPoint, for example, and it really perfectly summarizes like all sorts of complicated stuff and the jury wants to just look at it for a refresher and kind of organize their thoughts. I can see that judge saying that’s good cause.
Paul W. Grimm: And you know it’s interesting because I will tell you just in the context, because I’ve seen these things played out and given a lot of thought to just the challenge to the party with the burden of proof. You know in these complicated money laundering and structuring cases when you have potentially dozens of victims and hundreds of transactions and multiple defendants. I’ve had one where I had five co-defendants and then another second trial with the remaining four. And I thought to myself, this could be so confusing for the jury. And they have these document presentation software devices where a prosecutor will have a check and then there will be a photograph that they’ll put side by side that will have the person going to the ATM to withdraw money, and then they’ll have a photograph down the bottom, which was the victim that went to the bank to wire it into the bank account from which the defendant took it out. They’re all right there together. And if you had just had the people testifying, you would’ve been lost hopelessly. And then that PowerPoint, as you say, has that little clip embedded in there where you show it to them and that pulls it all together. And so, I think these rules do a tremendous amount to promote effective advocacy.
Prof. Daniel Capra: In terms of the public comment of it, there was a lot of negative comment, much of it I ascribe to why are you messing with my PowerPoints? That’s pretty much it. And there was an impression I think with many practicing lawyers that there actually are no limits currently. There just are no limits on what I can introduce, when in fact there are, you know.
All this does is kind of shift the 611(a) power to a specific rule and provide some criteria for it. But obviously it wasn’t like the total Wild West that you could admit whatever PowerPoint you wanted, and that was not so. So those were probably readily dismissed. The comments that did have effect were when the rule was sent out for public comment, it had a notice requirement in it. It required that notice be provided in advance of presenting the illustrative aid.
Of course, leaving situations in which you couldn’t possibly notify, like an on-the-fly kind of marking to an exhibit or something like that. But it was taken as, oh my gosh, this is like the end of the world and it’ll mean that I’m going to have to give notice of stuff I haven’t even thought about yet, and I’m going to have to give notice of things that I’m not even going to end up introducing. It’s going to increase the cost of litigation, then we’re not going to introduce any of our visuals anymore. And don’t you know that jurors are visual learners. It was just this whole thing. So, the notice requirement got redacted from it got taken out of the final version, and there’s just a paragraph about notice, which is basically saying that courts are free to impose a notice requirement if they want to, but the rule does not cover this.
Then one byproduct of that was the rule dropped the notice requirement, but then got extended the use of illustrative on opening and closing. That was not in the original rule that went for public comment because lawyers were saying I would have to kill anybody before I gave them notice of my closing deck. So that was exempted from the rule, but now if there’s no notice requirement, the committee saw no reason for differentiating illustratives that are used during the trial and illustratives that are used during opening and closing argument. They got to be fair. They can’t be confusing, so they should be regulated. So that’s the way the rule came out.
Paul W. Grimm: I think that’s very useful and I think it’s particularly useful to call attention to it in the rule and the commentary to the rule.
Now, I’ll tell you why I used to sort of sweat bullets on that when I was on the bench because I didn’t want, I hated interruptions during opening and closing. I was one of those judges that always instructed before closing arguments. I always felt, Dan, that the worst thing I could do as a judge is to kill a great pair of closing arguments with an hour and 45-minute recitation of the jury instructions going through the elements of all of the charges in a 15-charge case. And so, I always instructed first and then let them do it. I wanted to avoid objections which sort of broke the flow. It diminished the advocacy. I was especially concerned on openings. Closing, everybody pretty much knows what’s been admitted, not admitted, and they’re pretty good about that.
And I wasn’t so much worried about closing, I could just say disregard, but I was really worried about an opening where somebody came out and said, “I’m going to prove the following things,” and then it didn’t turn out that way. And I would say to the parties, “I’m not going to order you to put those PowerPoints to the other side because I think that’s work product. That’s how you pull it together and structure what you say you’re going to do.” But keep in mind that if you swing for the fences and it turns out not to be the case, you’re increasing the chances that we might have to deal with a potential mistrial and let’s not get greedy.
Prof. Daniel Capra: And that’s a good way to deal with it, and that’s what every judge can do with it. And so to have the rule intrude and require notice, and in retrospect you know a lot of rulemaking is you put up tent poles and that’s what everybody goes to, and then you can just drop the tent pole and then you can just get the rule through. You know so the notice requirement was this magnet of criticism, which is fine. That’s fine, you know they can talk about that. Then you just lose that, and you get the body of the rule. It happened with 702 as well.
Paul W. Grimm: I think it’s good because I think while we criticize small “c” criticize the rules process for taking so long, the openness of it allows those affected to buy in. And I always think of the evidence rules because you’re in the middle of it then, civil procedure, you can stay up all night before a deadline is due and look at the rules, but in your middle of a trial, this is going hot and heavy. You don’t have the time to reflect, and they should be as useful as they possibly can. And this just takes something that really combines trial advocacy with evidence and gives people, I think, a tremendous amount of assistance. So I say kudos to the committee.
Let’s stay with our rules that help us in trial practice before we get to our hearsay rules and every lawyer’s favorite rule, Rule 613 prior inconsistent statement, impeachment. And of course, the structure of the rule currently has 613(a), which sort of eliminates, what was it, Queen Caroline’s rule where you disclose to the witness, all the who, what, where, and why thereby destroying all the surprise by confronting someone with an inconsistency. That’s 613(a).
Then 613(b) talked about when you could use extrinsic evidence to impeach, and it limited that to circumstances when the witness was given an opportunity to explain or deny, but sometimes it was just so much more effective to, for example, if there’s a deposition and the witness says at the beginning of the testimony at trial says, you know I’m certain the light was red. I can remember it vividly. And then they were deposed a year before they said, I can’t really remember what color the light was. Maybe it was yellow, could have been red. I don’t really remember. And you want to impeach him with that.
I’ve always thought that the way lawyers did it was sometimes just so ham-handed with the witnesses sitting there, they don’t have the deposition in front of them. The lawyers got this deposition, they’re hanging over it like a praying mantis, and they’ll say, isn’t it true that you said A, B, C? And the witness has no idea what the deposition said, and then they’re obviously trying to bring in the extrinsic evidence of the prior inconsistent statement, and it just seems so awkward to me. That’s a perfect case where it would be so much easier just to let them see the deposition first and they’re going to acknowledge it because they said it under oath, and you’ve made your point and you move on.
I think that the proposed rule really helps with that. Could you just sort of walk us through what this new change will do?
Prof. Daniel Capra: One of the unusual rules that goes back to the common law, it might be the only one that I’ve ever worked on, which actually goes back to the common law for the solution. Common law was that you couldn’t introduce extrinsic evidence of a prior inconsistent statements until the witness was basically made aware of the statement and given an opportunity to look at the statement and then given an opportunity to explain or deny. The opportunity to explain or deny is totally a no-brainer. If you’re having an argument with a person and they talk about an inconsistent statement, you would always want to have an opportunity to explain or deny, I was nervous at that point. I was under the influence of alcohol at that point, whatever it might be, thus, to basically dampen its impeachment effect. That’s just a matter of fairness. So that’s a given.
You get that opportunity. The 613(b) question that’s being dealt with in the rule is when, and the advisory committee, the original advisory committee thought that there should be flexibility there, that the opponent of the witness could wait and introduce the prior inconsistent statement without giving this witness an opportunity to explain or deny just so long as this witness was given an opportunity at some point in the trial. That just doesn’t work, frankly. It ends up sandbagging a witness. What can happen is a witness might not then end up being available, or when they are available, it’d be outside of the context of the flow of the trial, and so the idea that you should bring this in and then later give this person an opportunity to explain or deny just doesn’t seem to sequence properly. There were justifications that were given by Professor Cleary who was the original reporter, but it turns out that they didn’t pan out.
And what happened with 613(b) is that most courts went back to the common law rule. If you looked at most courts, they were requiring that before allowing any extrinsic evidence of this statement in you got to give them an opportunity to explain or deny it. And part of that was for the reasons that you point out, Paul. In many situations, extrinsic evidence is actually unnecessary because the witness is going to say, “Yeah, I said that. I said that. I did say that. Let me explain or deny, but I definitely said it.”
And so, if they say, “I said it,” do you really need to introduce the prior inconsistent statement and spend that time? You probably don’t. And so, this is just for efficiency purposes. It says that before you can introduce evidence — the extrinsic evidence of the statement — the person has to get the opportunity to explain or deny, and that is before that.
But what it does is it provides a lot of discretion in judges to dispense with that on a case-by-case basis. And as the committee’s note says, that’s really up to the judge to figure out. There could be reasons why you delay that opportunity. One big reason that’s given in the committee note is you don’t even come upon the prior inconsistent statement until the witness is now off the stand. And in that situation, you know flexibility is required. The rule actually says, as far as we’re concerned, the judge can in discretion just dispense with that requirement altogether of an opportunity to explain or deny in specific cases. So it’s left very discretionary. It’s intended to have the same kind of structure as Rule 611(b), which talks about the, the scope of cross-examination, and it’s got to be within the scope of direct, but gives the judge a lot of discretion to change that, to allow broader cross-examination. It’s kind of a rule of preference, but a judge can change it on a case-by-case basis. That’s the way it got structured. I think that’s very useful, and it provides for a uniform approach, which did not exist to this point.
Paul W. Grimm: Again, these are practitioners’ rules. I love these rules because they really focus on— I sometimes felt, particularly when I was on the Civil Rules Advisory Committee, that some of the rules that we were doing were so far into the weeds, Dan, that they were just very technical. They were important for that, but they would come up with a situation that was so seldom used that they almost seemed like a trap to the unwary — particularly when you had a rule like Rule 26 that had subsections that went beyond G, you know. And I just think that these tools are ones that just help you really get through it.
Prof. Daniel Capra: All I can say, Paul, is when, is when my chair and I, and it’s been more than one since through the standing committee and they have the agendas of all the committees there, we always say, “Boy, I’m glad we got evidence.” So we always say that.
Paul W. Grimm: Well, I want to close with some, just some advice from you since I’ve got you here, and since you’re such an oracle on evidentiary matters. Maybe I was being too persnickety or too much of a nerd when I was focusing on this on the bench, but the use of a prior inconsistent statement — the primary use — is not substantive. It’s to talk about credibility. So, they said the light was red, then they said the light was green. They don’t really know what color the light was, so don’t give too much weight to what they said. But there can be instances in which a prior inconsistent statement is substantively admissible, and it’s very important to get that substantively admissible — 801(d)(1)(A) is an example and, of course, admissions. And I would sometimes in a pretrial when people were talking about that, I would raise the issue of, look, do you want an instruction when you have a prior inconsistent statement that it’s substantively admissible? And the jury could consider it to determine what credibility or not to give to the witness, but also if they find that the earlier statement is credible, that they can accept that for the truth.
If you have a burden of proof on something, that may be the only source you’re going to get it. Do you have any thoughts for whether it makes a difference or whether it should be something that the parties should be focusing on in the couple of instances 801(d)(1)(A) and 801(d)(2) asking the judge for an instruction when the evidence comes in that it’s admissible both for its impeachment value and also for its substantive views? Or is that just something that’s so persnickety that it doesn’t make sense?
Prof. Daniel Capra: I’ll say two things about that. I would say if I were a lawyer, I wouldn’t actually ask for that instruction because I think it would just confuse the jury. If it actually is admissible substantively, then the jury’s going to use it substantively and they have a tendency to do, too. So the only way they wouldn’t, I think, if they’re instructed not to do that, and they probably tend not to follow that instruction anyway. And so, I think that I wouldn’t get the jury confused with such an instruction, although you’re the judge, you would know better than I do. I’m just an academic, but that’s just my sense. But then I would say also that the rules you’re talking about in terms of prior inconsistent statements need to be expanded. In my view, every prior inconsistent statement should be admissible substantively. It should be admissible for its truth, subject to Rule 403 in terms of probative value and confusion.
But the reason it’s not considered admissible for its truth, most of them, is because of course they’re out of court statements, and if they’re offered for the truth, they have to be subject to a hearsay exception. The one for a witness who is a party, that exception is 801(d)(2) party opponent statement. But what if it’s just a witness? Well, then, the prior inconsistent statement hearsay exception under 801(d)(1)(A) is pinpoint broad. I tell my students this. So we all make prior inconsistent statements. How many? I’ve made five today, right? There’s millions of them. How many of them are covered by 801(d)(1)(A)? None that I have ever made in my life is covered by 801(d)(1)(A) because the only prior inconsistent statements that are given for the truth are under oath at a formal proceeding.
I don’t think I’ve ever been under oath at a formal proceeding. So pretty much none of my statements, and I would think many of them have value. Other systems like California, all prior inconsistent statements are admissible for their truth. But because of Congress’s messing with the advisory committee, 801(d)(1)(A) got changed, and one of the big parts of our agenda, the committee’s agenda going forth, is the consideration of expanding rule 801(d)(1)(A) or basically having a rule that all prior statements of testifying witnesses are admissible for their truth. I think the way to do it is to expand 801(d)(1)(A) to basically say “all prior inconsistent statements are admissible for the truth” because prior consistent statements present different issues. And we already have a rule on that that I think is working pretty well. So we’ll see what happens with that, but that that’s an important thing going forward. For me personally and for the chair.
Paul W. Grimm: I would just tell you, as long as if we’re coming up with our evidentiary Christmas wish lists, I too, wish that they would change 801(d)(1) to allow any prior statement of a witness, whether it’s inconsistent or consistent, so long as they were there under oath and could be cross-examined about it because to pick out those three, you know, identification and consistent statements, and you sort of enlarged the one about prior consistent statements to include any to rehabilitate a witness. And I just think that it’s confusing for the simple reason that, and I think if I were also the master of all rules, I would make an exception to the hearsay rule rather than exclusion because it does meet all the elements of 801 A, B, and C, and it gets confusing. But in any event, the suggestion you made would be, I think, a welcome change that hopefully maybe one day of the committee will consider.
Prof. Daniel Capra: Yep. Came very close about six years ago, so it’s a long game. You just wait until certain people get off the committee and you stay, and I stay on. So yeah.
Paul W. Grimm: Alright, let’s go into our chapter 800 rules. And I think that there’s a wonderful change proposed to 801(d)(2) opposing party statements, as you point out. And I love the structure of 801(d) because we have sort of direct statements of the adverse party that 801(d)(1), capital A, and we have those that are made in their presence that they can deny if it weren’t true and you would expect them to deny it if it weren’t true. And then you have the attributive statements that are attributed to them based upon some relationship either as a co-conspirator or as an authorized representative or as an agent, servant or principal. But what happens in civil cases and not infrequently is that I’ve got a claim, I got a claim against somebody, and I make a statement that would constitute an admission and then the claim moves forward, but it’s not in my name.
I’ve assigned it, maybe it’s subrogated, maybe it’s someone else. Maybe I do it contract, I assign the claim, and now that statement that I made, that would be a powerful admission by me as a party opponent had I kept the claim and prosecuted it. Some would pop up, some bright spark would pop up and say, objection, it can’t be because this person is not a party opponent who made the statement, it’s been transferred.
We always used to say in subrogation that you stepped in the shoes of, and I think that that was a useful way of looking at it. So help us understand this proposed change to rule 801(d)(2) and what the committee was hoping to do and why, I think, well, you can’t explain why I think it’s good, but you can explain why you think it’s good and that’ll be helpful to our audience.
Prof. Daniel Capra: Okay. Many of the amendments to the rules of evidence proceed from the recognition by the committee that there is a conflict in the courts about the meaning and application of an existing rule. If you have a federal rules of evidence, the whole idea of having a code of evidence for the entire country is that it is applied uniformly throughout the country. That’s never going to be true completely, but if there is an actual conflict of resolution of the exact same evidentiary situation between the Seventh Circuit and the Third Circuit, that’s not a thing that you would like to have happen. That’s why 95% of the amendments occur, and this is one such example. There’s a conflict in the case law among the circuits about this issue of where there’s a succession to the cause of action and the statement was made prior to that succession and the statement would be admissible against the declarant or the declarant’s principal if they were the party, but they’re no longer the party that’s now been given to a successor.
And the successor’s point is, well, it’s a party opponent statement, we’re the party, we didn’t make it, and therefore it can’t be admissible. So, some courts would agree with that argument. The better courts would disagree with that argument, and the disagreement would be this going as follows, you know you succeed to a claim or defense, as you say, Paul, you step in the shoes, and those shoes have to include everything that would apply to the person who had them in the first place. So, when you take the event, when you take the claim, you take the statements pertinent to the claim. That’s the basic idea. The complicating part of that is if you look back at 801(d)(2), there were considerations of whether you should have privity and successor issues in the rule itself. And the advisory committee decided they didn’t want to do that. So that’s why some courts say, well, you’re really relying on a privity analysis and the advisory committee eschewed any thoughts about privity, so why should this statement be applied to the successor?
Thinking more broadly, when they were writing 801(d)(2), they were considering that it would be an expansive idea. And so, these other courts say that there should be this attribution. Well, what the advisory committee did was side with the courts. It would say, if you step in the shoes, then you take that statement. The example that’s given in the committee note is there’s an excessive force case the plaintiff has said, “I didn’t get hurt,” then the plaintiff dies, the estate takes the case. Does that statement get admitted against the estate under 801(d)(2)? It does now. It does under this proposal that exists, and that would be a uniform result throughout the country. If this amendment gets adopted, which it’s very likely that it will be, that’ll be in December 1, 2024. I guess I’d say a couple of things about the amendment.
If you look at the rule, you’ve got, as you say, Paul, A through E, and then there is a paragraph at the bottom of that that exists today about proving an agency or conspiracy, and you must use the statement itself, but that’s not enough. That’s basically what that does. And then the question is where to put this rule about attribution and stepping in the shoes, and that becomes difficult because you can’t put it in a 801(d)(2)(A) for party opponents because it’s also got to apply to adoptions, and it’s got to apply to agent statements. You wouldn’t want to put it in every one. So, my solution was just to put on another hanging paragraph at the bottom of it, and for all the rules, procedures, there’s styling, there’s re-stylists who work with us, and they often are very persuasive, also very helpful, but often very persuasive in terms of their view as opposed to your view about what the best rules should be.
I was very, not exactly optimistic about coming to the re-stylist with this paragraph because they hate hanging paragraphs that don’t have a number in front of them. It’s like they can’t sleep. I’m sure that the re-stylists are still thinking about that hanging paragraph. And I said to him, how about add another one? And he gave it a lot of thought, took about a week, and he couldn’t come up with a better solution. So now we have two hanging paragraphs, and that’s what happened in the case. The other thing that I don’t know who this interest other than a true rules geek, but the amendment sounds complicated in this language, and it is complicated in this language, and there’s two reasons for that. One is you’re not just covering statements of a party. You’re covering statements of the agent of a party. So you can’t just keep saying “declarant,” “declarant,” “declarant,” because it could be the declarant who’s the party with the claim, or it could be their principal.
In other words, it’s an agent statement, so you got to keep saying the “principal” that, that makes it gawky. The other thing that makes it gawky is what we really wanted to say is when you “stand in the shoes of somebody,” you take their statement, but “stand in the shoes” is not a legal term. So you had to find the legal term, and the next thought would be, well, the legal term that would come to mind would be “if you’re a successor in interest.” If you’re a successor in interest, you take the predecessor’s statements. The problem with using “successor in interest” is that it’s already used in Rule 804(b)(1), which says that a prior testimony can be used against you if your successor in interest had a similar mode of an opportunity to develop a testimony. And if you look at those cases under 804(b)(1), the term “successor in interest” is applied there in a very, very expansive way.
There’s no relationship between the two parties necessarily. It’s just that the one party was in a position to cross-examine that witness that’s basically the same or similar to you, and therefore, it counts against you. It’s a very broad determination. It’s not a legalistic connection; it’s just a position connection. Well, you wouldn’t want to have that in this rule. You really have some real legitimate legal interest that’s being transferred, so couldn’t use that term. In other words, the same term, can’t have different meaning in two rules. The solution that was thought of was directly derived from if your claim is directly or defense is directly derived from the declarant or declarant’s principle, then this attribution works.
Paul W. Grimm: Yeah. What I think that is, too, is it’s a testament to the care with which these rules have to be written, and not just simply in a vacuum, but how they relate to other rules as well.
Prof. Daniel Capra: You know what, it’s not an academic exercise either. I was talking to law professors about this dilemma that I had about the successor in interest thing, and so what one of them said is, “Well just use successor in interest and just go to amend it in 804(b)(1), and then your problem solved.”
Paul W. Grimm: Yeah. No, just snap your fingers. That takes care of it.
Prof. Daniel Capra: And it’s a dumb idea, too, because it actually, in my opinion, it’s actually correctly applied in 804(b)(1). It should be expansive in that rule, but it can’t be that way in this rule. A lot of thought has to be given to how everything works together.
Paul W. Grimm: And I think that that is, again, one of those illustrations that there’s a lot that goes on behind the scenes before you get a rule change. So statements against interest, again, picking up on that, all the confusion that people often say an admission against interest that fogged up 801(d)(2), and now we get to 804(b)(3), which is a statement against what we used to call penal, proprietary or pecuniary interest. What’s interesting about this is the one exception or the subsection 804(b)(3), which deals with what happens when you have a person who’s unavailable, because 804 requires unavailability, broadly, that you could be unavailable just by not remembering, but you have an unavailable declarant. And they made a statement at some time that would subject them to civil, criminal, or other liability. But now it’s a criminal case. And the perfect thing would be the defendant’s being prosecuted for a robbery and some other person who’s not available said, “well, I did the robbery, that was me who did it,” and they’re unavailable.
They’re not available, and you want to introduce that statement against interest, penal, proprietary or pecuniary interest in a criminal case. And the statement subjects the declarant to criminal liability, not civil, but criminal. They make a statement that incriminates them. In a criminal case, you’re going to put it in a criminal case, and you don’t have the witness available. So you’re not going to have the ability to cross examine. The rule required that it be corroborated and use the totality of circumstances test. But confusion arose after that about what kind of corroboration did it have to be in the statement itself, or could it be extrinsic facts that corroborated it? And I think that 804(b)(3) does a great job of clarifying that.
Why don’t you help us appreciate what this new rule change will do?
Prof. Daniel Capra: I think some history is required to figure out what’s going on here. When original advisory committee wrote this rule, it was a rule saying that if it tends to incriminate a person, then it’s admissible because it could subject him to a risk of penal liability. And that was the only admissibility requirement that existed in the original draft by the advisory committee. And a senator at the time, Senator McClellan said, “No, you need to add more to that. It’s got to be more than that.” Because he was concerned that a criminal defendant would just sign up somebody to confess to the crime and that would tend to incriminate them. And so that would be a perversion of the process. So he said, you need to add another admissibility requirement. And the advisory committee said, we don’t think so. And McClellan says, “Well, I think so, and I’m running the show, so you better come up with something and gave them a time limit.”
And so, they came up with this term “corroborating circumstances,” an additional admissibility requirement, corroborating circumstances, which is a conflation of two separate things that could make a statement reliable corroborating evidence and circumstantial guarantees of reliability. So, confusion has to reign from that when you put two things together in one phrase that had never ever been used before. And so, it’s resulted in confusion in the courts as to what is useful for corroborating circumstances. And some courts said, not many, but some said you just look at the circumstantial guarantees of trustworthiness, how far it was away, the time between the statement and the event to whom it was made, what tends to guarantee the reliability in the circumstances. Other courts said, well, you also look to the independent evidence when they say I killed them. The evidence indicates that they were in the room at the time or that they had a motive to do so.
So, you look at the corroboration and the circumstances and that was the confusion. And what this rule does is, the amendment does, is unpacks it and says, you look at the circumstantial guarantees that you look at beyond just that it’s against interest. And you also then look at the independent evidence that either supports or undermines. So corroborating might not be corroborating, it might actually corroborate the opponent’s side, right? That is to say, I killed them. I really did it. And the information that’s presented is they were in Buffalo at the time and the crime occurred in Los Angeles. That’s evidence that undermines. So you look at both of those things to determine whether corroborating circumstances are met and that rectifies a conflict in the courts. It also makes the rule consistent with the residual exception, which was amended in 2019. To expressly these tell courts that under the residual exception, you must consider the existence or absence of corroborating evidence. To me, it’s a no-brainer if you’re trying to prove whether something is true, which is essentially what we’re trying to do here. The fact that it’s supported by independent evidence is just a commonsense indication that it’s true, somebody gives you what is. Somebody tells you, “I killed a person and I buried them under the elm tree.” You think that’s a lie? Then you go dig it under the elm tree and there they are. That’s a pretty good indication that they were telling the truth. So that’s what is considered.
Paul W. Grimm: Alright Dan, well, we could go on and on.
Prof. Daniel Capra: Yeah, we could.
Paul W. Grimm: I’m so grateful that you gave us two opportunities to have time with you. We’ll find the reason to do it again in the future. Thank you so much.
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