To highlight your need to familiarize yourself with the most recent amendments to the Federal Rules of Evidence (FRE) and how to implement strategies to benefit from them, try answering these questions:
- At trial, you want to get into the record a completing statement. Opposing counsel objects, contending that the statement you seek to get into the record is only oral and is hearsay. What is your counterargument?
- You move to exclude a key witness from attending the trial until that witness testifies. What instruction should you ask the judge to give that witness before he or she leaves the courtroom?
- At trial, opposing counsel seeks to put into the record the testimony of an expert witness. When you object, opposing counsel contends that it is for the jury to assess the weight to assign to the expert’s testimony, and so the expert should be allowed to testify. What is your counterargument?
- What is the distinction between a demonstrative exhibit and an illustrative aid, and why is that distinction significant?
- Opposing counsel seeks to put into the record extrinsic evidence of your witness’s prior inconsistent statement. What objections can you raise?
- Your client is the assignee of a contract. You seek to put into the trial court record statements of the assignor. Opposing counsel objects based on hearsay. What is your counterargument?
- In a criminal case, you seek to take advantage of the hearsay exception for declarations against penal interest. What must you establish?
- At trial, you seek to put into the record a summary of voluminous documents. Opposing counsel objects, contending that the underlying documents are not in evidence. What is your counterargument?
Compliance with Ethical Requirements
You have an ethical obligation to remain current about these and all other amendments to the rules of practice. For litigators, this ethical obligation includes keeping up-to-date on amendments to state and federal rules of evidence. Consider these rules from the American Bar Association Modern Rules of Professional Conduct (Model Rules):
- Model Rule 1.1 (Competence). “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Comment 5: “Competent handling of a particular matter includes . . . use of methods and procedures meeting the standards of competent practitioners. . . .” Comment 8: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice. . . .”
- Model Rule 3.1 (Meritorious Claims and Defenses). “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous. . . .” Comment 1: “The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed.”
- Model Rule 1.3 (Diligence). “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 1: “A lawyer should . . . take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.”
To comply with these ethical rules, be wary of any case you may consider citing pertaining to the rules discussed in this article.
Don’t rely on any pre-amendment cases for any contentions you intend to make that must be updated or rejected based on these amendments. On the flip side, if opposing counsel relies upon any pre-amendment cases, distinguish them.
The Procedure to Amend the FRE
Knowing the procedure to amend the FRE provides insight into the rationale for each amendment, including commentary useful in arguing the significance of each amendment.
- FRE 1102. “These rules may be amended as provided in 28 U.S.C. Sec. 2072.”
- 28 U.S.C. Section 2072. This statute authorizes the Supreme Court to prescribe general rules of practice and procedure and rules of evidence for cases in the U.S. district courts and courts of appeals.
- Advisory Committee. This committee considers a proposed rule change published for comment as part of a preliminary draft. The published notes of this committee are especially helpful in understanding the rationale supporting each amendment and are useful in briefing issues relating to them.
- Judicial Conference. The Judicial Conference considers a proposed rule change. It submits a comprehensive report to the Committee on Rules of Practice and Procedure.
- Committee on Rules of Practice and Procedure. This is a standing committee of the Judicial Conference. It decides whether to approve the proposed rule change.
- Supreme Court. The chief justice of the Supreme Court submits to Congress the proposed rule change.
- Congress. If Congress takes no action, the proposed rule change goes into effect on December 1 of that year, applicable to all proceedings thereafter commenced and, insofar as just and practicable, applicable to all proceedings then pending.
- Timing. This entire process typically takes three years.
2023 FRE Amendments
Three FRE amendments became effective December 1, 2023:
- Rule 106. This rule pertains to the introduction of the remainder of or related statements that, in fairness, should be considered when a party introduces into evidence only part of a statement.
- Rule 615. This rule applies when the court excludes a witness at a trial until that witness testifies.
- Rule 703. This rule applies to the admissibility of expert testimony.
FRE 106: Remainder Writings and Statements
FRE 106 before amendment:
“Rule 106. Remainder of or Related Writings or Recorded Statements. When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.”
FRE 106 after amendment:
“Rule 106. Remainder of or Related Statements. If a party introduces any part of a written or oral statement, an adverse party may require the introduction, at that time, of any other part—or any other written or oral statement—that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.” (Emphasis added.)
This amendment allows the completing statement to be admissible regardless of whether the statement would have otherwise been inadmissible hearsay and covers unrecorded oral statements. It eliminates the former requirement that the completing statement be a “writing or recorded statement.” Now, oral statements can satisfy the completeness rule.
This amendment also provides, for the first time, that the completing statement is admissible over a hearsay objection. Trial courts have been inconsistent in ruling on such hearsay objections. It displaces the common law entirely, avoiding confusion about whether FRE 106 is merely a partial codification of the common law.
Strategy
If opposing counsel seeks to put a completing statement in evidence, consider whether the statement you already put in evidence is actually misleading. If not, there is no justification for putting in any completing statement.
Even though you cannot object to a completing statement as hearsay, you still have available objections based on FRE 403 if its probative value is substantially outweighed by the danger of unfair prejudice or if it would confuse the issues, mislead the jury, cause undue delay, waste time, or needlessly present cumulative evidence.
If opposing counsel has put into evidence a misleadingly incomplete statement, be aware that you can seek to put a completing statement into evidence at that time, even if oral, with no hearsay objection available to opposing counsel.
If you are considering introducing into evidence a portion of a statement, you can no longer rely on the completion of the statement being inadmissible because of hearsay, and this may change your calculus as to whether to introduce the partial statement at all.
FRE 615: Excluding Witnesses—Orders Limiting Access to Information About the Trial
FRE 615 before amendment:
“Excluding Witnesses. At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(d) a person authorized by statute to be present.”
FRE 615 after amendment:
“(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.”
This amendment allows for additional orders when a witness is excluded from the courtroom until testifying. As amended, FRE 615 authorizes the court to issue orders prohibiting disclosure of trial testimony to such witnesses and prohibits them from accessing such testimony.
This amendment was necessary because courts have been inconsistent in ruling on this issue, which is now more prevalent with the increased possibility of a witness having access to trial testimony through news, social media, YouTube, and access to daily transcripts.
The rationale is that to accomplish the purpose of this rule (i.e., preventing a witness from tailoring testimony to evidence at trial), FRE 615 must be extended by regulating out-of-court exposure to that testimony, not merely limited to exclusion from the courtroom.
Strategy
If you obtain a court order pursuant to FRE 615 to exclude a witness, request that the court issue an order pursuant to FRE 615(b). Otherwise, an excluded witness could claim that no court order precluded access to trial testimony that the witness obtained outside the courtroom. Note that FRE 615(b) gives the court discretion to determine what restrictions are appropriate on a case-by-case basis.
If one of your witnesses has been excluded from the courtroom and opposing counsel has obtained an order pursuant to FRE 615(b), advise that witness of the court-ordered restrictions on accessing trial testimony. Otherwise, your witness could be subjected to effective cross-examination and even an order disallowing that witness’s testimony altogether.
FRE 615(b) raises ethical issues regarding your preparing an excluded witness from testifying. But for such an order, you would review with that witness what is already in the trial court record. (See Model Rule 1.1 (Competence).)
The court needs to address this issue on a case-by-case basis. For example, even after a judge issues an order pursuant to FRE 615(b), you can seek permission to discuss with your excluded witness certain limited evidence in the trial court record essential to your putting that witness on the stand. If you do so, though, you necessarily disclose your strategy, and you should expect cross-examination on the effect of that disclosure on the reliability of your witness’s testimony—was it tainted by that disclosure?
If you can reasonably expect that one of your witnesses will be subjected to an FRE 615(b) order, review with that witness before the trial starts or, if before trial, the entry of an FRE 615(b) order, what testimony and exhibits you expect will be in the trial court record.
FRE 615: Excluding Witnesses—Orders Regarding Who Can Be Excluded
FRE 615, as amended, also clarifies this rule as it applies to entities.
FRE 615 before amendment:
“But this rule does not authorize excluding . . . (b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney. . . .”
FRE 615 after amendment:
“But this rule does not authorize excluding . . . (a)(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. . . .” (Emphasis added.)
This amendment makes explicit that exclusion from trial of a person whose presence a party shows to be essential to presenting that party’s claim or defense is limited 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 out one representative for another during a trial, but only one at a time.
The rationale is to resolve a dispute in the district courts about whether an entity-party is limited to only one such exemption from exclusion or is entitled to more than one. By limiting an entity-party to only one person, entities are put on par with individual parties.
Strategy
If you obtain a court order pursuant to FRE 615 to exclude an entity-party witness, request that the court issue an order pursuant to FRE 615(b). Otherwise, an excluded witness could claim that no court order precluded access to trial testimony that the witness obtained outside the courtroom. Note that FRE 615(b) gives the court discretion to determine what restrictions are appropriate on a case-by-case basis.
If one of your witnesses has been excluded from the courtroom and opposing counsel has obtained an order pursuant to FRE 615(b), advise that witness of the court-ordered restrictions on accessing trial testimony. Otherwise, your witness could be subjected to effective cross-examination and even an order disallowing that witness’s testimony altogether.
Identify which entity-party representatives should be excluded from the courtroom at different times during a trial, depending on the subject matter being introduced into evidence.
Rule 702: Expert Witnesses
FRE 702 before amendment:
“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 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 has reliably applied the principles and methods to the facts of the case.”
FRE 702 after amendment:
“Testimony by Expert Witness. 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 has reliably applied] expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” (Emphasis added and bracketed words redacted.)
As amended, FRE 702 emphasizes “more likely than not” as the proper evidentiary standard for admissibility of expert testimony as to all four elements of FRE 702, with no presumption of admissibility, and that it is for the court to determine admissibility of expert testimony, rather than for the jury to weigh it.
It revises subparagraph (d) from “the expert has reliably applied the principles and methods to the facts of the case” to “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”
Adding “if the proponent demonstrates to the court that it is more likely than not. . .” was required because many courts improperly declared that the reliability requirements in FRE 702(b) (that the expert has relied on sufficient facts or data) and in FRE 702(d) (before amendment, that the expert has reliably applied the principles and methods to the facts of the case) are questions of weight rather than admissibility, with some courts even holding that expert testimony is presumed to be admissible.
That analysis is contrary to Supreme Court holdings that, under FRE 104(a), admissibility requirements are determined by the court under the preponderance of evidence standard.
Changing FRE 702(d) to require that the expert’s opinion “reflects a reliable application of the principles and methods to the facts of the case” emphasizes 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.
Judicial gatekeeping is needed because jurors may lack the specialized knowledge to determine (1) the reliability of scientific methods underlying the expert’s opinions and (2) whether an expert’s opinions go beyond what the expert’s basis and methodology might reliably support.
While the amended FRE 702 does not require a court to nitpick an expert’s opinion to reach a perfect expression of what might be supportable testimony, it does not permit the expert to make claims that are unsupported by the expert’s basis and methodology.
The goal of the slight change to the existing Rule 702(d) that requires the court to find that “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case” is to more clearly empower the court to pass judgment on the conclusion that the expert has drawn from the methodology and not just the methodology employed.
The judge’s gatekeeping duty is a continuing one. Rule 702(d) states that the expert’s opinion must reflect “a reliable application” of his or her principles and methods. Thus, if an expert overstates an opinion at trial, the court must strike the testimony.
Once the court has found it more likely than not that the admissibility requirement has been met, any attack by the opponent will go only to the weight of the evidence.
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.
Strategy
As a proponent of admission of expert testimony:
- Prepare your expert to testify about the reliability of the application of methodology as well as the reliability of the methodology itself.
- 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.
- 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:
- 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!
- 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.
- 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. This focus on the propriety of the expert’s conclusion is new.
- 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.
For a case that applied FRE 702 to reverse a $4.84 million verdict based on the improper allowance of expert testimony, see Sardis v. Overhead Door Corp., 10 F.4th 268 (2021). In that case, even though the circuit court does not apply the amendment to FRE 702, it does rely on the rationale for this amendment in its very comprehensive ruling, focusing on relevance and reliability factors.