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December 19, 2023 8 minutes to read ∙ 1800 words

How to Take Advantage of Amendments to the Federal Rules of Evidence Effective December 1, 2023

Stewart Edelstein

Effective December 1, 2023, amendments to three Federal Rules of Evidence go into effect, applicable to all proceedings thereafter commenced and, insofar as just and practicable, applicable to all proceedings then pending. They apply to admissibility of completing statements, admissibility of expert testimony, and disclosure of and access to trial testimony by witnesses excluded from court until testifying. You need to know how to implement strategies to take advantage of these amendments.

Rule 106: Completing Statements

This rule deals with the introduction of the remainder or related statements that, in fairness, should be considered when a party introduces only part of a statement.

As amended, Rule 106, now titled “Remainder of or Related Statements,” provides:

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.

New Rule 106, formerly titled “Reminder of or Related Writings or Recorded Statements,” eliminates the former requirement that the completing statement be a “writing or recorded statement,” so now oral statements can satisfy the completeness rule. The amendment also provides, for the first time, that a completing statement is admissible over a hearsay objection.

The goal is to treat all questions of completeness in a single rule while avoiding confusion about whether Rule 106 is a “partial codification” of the common law. This rule, as amended, displaces the common law, just as do all other Federal Rules of Evidence.

The new last sentence precludes what some courts have allowed when holding that when a party introduces a portion of a statement that is misleading, the party can still object, on hearsay grounds, to completing evidence that corrects the misimpression.

The underlying notion is that the proponent, by introducing part of a statement in a misleading manner, forfeits the right to foreclose admission of a remainder necessary to remedy the misimpression based on the notion of fairness embodied in Rule 106.

It is for the court to determine whether the completing remainder is admissible to prove a fact (a hearsay use) or simply to provide context (a non-hearsay use). Either usage is encompassed by allowing the completing statement “over a hearsay objection.” This is an implicit amendment to the exceptions to the hearsay rule in Rule 803.

If opposing counsel seeks to put into evidence a completing statement, keep in mind that a prerequisite for doing so is that the statement you already put in the record must be misleading. The mere fact that the statement you already put in the record is probative and contradicts a statement offered by opposing counsel is not enough to justify admissibility of a proffered completing statement.

You can also object to a proffered completing statement, contending that it should not be allowed based on Rule 403 if its probative value is substantially outweighed by a danger of unfair prejudice or that it would confuse the issues, mislead the jury, cause undue delay, waste time, or needlessly present cumulative evidence.

On the other hand, if opposing counsel has put into the record a misleadingly incomplete statement, be aware that you have the right to put into the record a completing statement, even if oral, with no hearsay objection available to opposing counsel.

If a judge is about to rule against your putting into evidence a completing statement allowed by amended Rule 106, appropriately remind the court of the amended language and, if necessary, make an offer of proof to protect the record.

Rule 702: Expert Testimony

This amendment makes two changes. The first sentence adds a clause, here in italics: “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: . . . .”

The second change replaces former Rule 702(d), which required that “the expert has reliably applied the principles and methods to the facts of the case” with replacement Rule 702(d), which requires that “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”

The first change is required because many courts improperly declared that the reliability requirements in Rule 702(b) (that the expert has relied on sufficient facts or data) and in Rule 702(d) (cited above) are questions of weight rather than admissibility, with some courts even holding that expert testimony is presumed to be admissible. This analysis is contrary to the Supreme Court’s holdings that, under Rule 104(a), admissibility requirements are determined by the court under the preponderance of evidence standard.

Even though the words “more likely than not” are substantively identical to “preponderance of the evidence,” the “more likely than not” standard, by avoiding any reference to “evidence,” addresses the concern that the term “evidence” means only admissible evidence. See Rule 104(a): “The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.”

This first change also makes explicit that it is the court and not the jury that must decide whether it is more likely than not that the reliability requirements of Rule 702 are met.

The second change, replacing Rule 702(d), is required 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.

The Committee Note explains,

the amendment is especially pertinent to the testimony of forensic experts in both criminal and civil cases. Forensic experts should avoid assertions of absolute or one hundred percent certainty—or to a reasonable degree of scientific certainty—if the methodology is subjective and thus potentially subject to error. In deciding whether to admit forensic expert testimony, the judge should (where possible) receive an estimate of the known or potential rate of error of the methodology employed. . . .

This amendment is consistent with General Electric Co. v. Joiner, 522 U.S. 136 (1997), declaring that the court must consider not only the expert’s methodology but also the expert’s conclusion because the methodology must not only be reliable—it must be reliably applied.

However, the Committee Note cautions that this amended rule does not impose any new or specific procedure, and the court is not required to “nitpick an expert’s opinion” because the standard “does not require perfection.”

You can take advantage of these Rule 702 amendments in several ways.

As a proponent of admission of expert testimony:

  1. Prepare your expert to testify about the reliability of the application of methodology as well as the reliability of the methodology itself.
  2. Focus on the admissibility of your expert’s testimony rather than contending that it is for the trier of fact to consider the weight of expert testimony.
  3. If appropriate, emphasize that, in determining admissibility, the court is not limited to considering only admissible evidence, as provided in Rule 104(a).

As an opponent to admission of expert testimony:

  1. Keep in mind that nothing in amended Rule 702 requires a court to make any findings about reliability in the absence of a proper objection. So don’t inadvertently waive a proper objection!
  2. If the proponent argues that expert testimony should be allowed because it is an issue of the weight the trier of fact should give to it, highlight the amendment to Rule 702 mandating that this is an issue of admissibility, not weight, for the court to rule on.
  3. If appropriate, contend that the proponent has failed to establish the reliability of the application of methodology, as well as the reliability of the methodology itself.
  4. Take advantage of bases to exclude expert testimony, other than lack of reliable application of methodology, such as lack of expert qualifications, lack of sufficient facts or data, lack of reliable principles and methods, lack of relevance, as well as all Rule 403 issues: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Rule 615: Excluded Witnesses

By this amendment, Rule 615 is expanded beyond the determination of whether a court may exclude witnesses so they cannot hear other witnesses’ testimony; the amended Rule also allows for additional orders to prevent disclosing and accessing testimony when a witness is not in the courtroom.

Specifically, as amended, Rule 615 authorizes the court to issue orders prohibiting disclosure of trial testimony to witnesses who are excluded from the courtroom and prohibits excluded witnesses from accessing such testimony.

The purpose of this amendment is to clarify that the court may prohibit excluded witnesses from learning about, obtaining, or being provided with trial testimony. Courts have been inconsistent in ruling on this issue, which is now more prevalent with the increased possibility of witness access to trial testimony through news, social media, YouTube, and daily transcripts.

This means that, in preparing a witness who has been excluded from the courtroom after a trial has commenced, you cannot refer to trial testimony—not only because it could be an effective subject for cross-examination but also because doing so would be unethical.

You should advise an excluded witness that he or she is prohibited from learning about courtroom testimony from any source to avoid inadvertently learning about trial testimony, even if not from you. Then, on cross-examination, if asked, that witness can honestly testify about compliance with this new rule.

If you successfully obtain an order excluding a witness from the courtroom during trial, request that the court issue an order consistent with Rule 615 as amended. Otherwise, an excluded witness who did review trial testimony could claim that no court order precluded such access.

The only other Rule 615 amendment limits the exclusion from trial of a person whose presence a party shows to be essential to presenting that party’s claim or defense to only one person. The prior rule was not so limited. As amended, this rule does not prohibit the court from exercising discretion to allow an entity-party from swapping one representative for another during a trial, but only one at a time.

The rationale for limiting an entity-party to designate only one officer or employee to be exempt from exclusion is to resolve a dispute in the courts about whether an entity-party is limited to only one such exemption or is entitled to more than one. This limitation is intended to put entities on par with individual parties, who cannot be excluded under Rule 615. Allowing an entity-party more than one exemption is inconsistent with that rationale.

Also effective as of December 1, 2023, are amendments to Federal Rules of Civil Procedure 6, 15, 72, and new 87; Appellate Rules 2, 4, 26, and 45; Criminal Rules 16, 45, 56, and new 62; and Bankruptcy Rules 3011, 8003, 9006, and new 9038.

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Stewart Edelstein

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Stewart Edelstein is the author of How to Succeed as a Trial Lawyer, Second Edition, published by the American Bar Association. Save 30 percent on this book when you take any of his CLE programs and apply discount code HTSCLE23. This offer is valid until September 30, 2024. Stewart Edelstein’s CLE programs include “How to Argue Motions and Appeals Persuasively,” “How to Take and Defend Depositions Effectively and Make the Most of Deposition Transcripts,” “How to Succeed in Arbitration,” “Winning Words: How to Draft Effective Court Filings, While Avoiding the Common Perils of Emailing and Texting,” “How to Get Evidence into the Trial Court Record and How to Keep It Out,” and “How to Succeed in Mediation: From Selecting the Mediator to Breaking Through Impasse.”

How to Succeed as a Trial Lawyer, Second Edition

How to Succeed as a Trial Lawyer, Second Edition

How to Succeed as a Trial Lawyer, Second Edition
By Stewart I Edelstein
ISBN: 9781634256933
Product Code: 1620734
2017, 480 pages, paperback and e-book
$149.95; member price $119.95

Published in GPSolo eReport, Volume 13, Number 5, December 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.

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