October 08, 2019 Top Story

New Federal Rules Modernize Appellate Practice

Changes coming to residual hearsay rule and judicial recusal disclosure

By Erik A. Christiansen

The U.S. Supreme Court has adopted amendments that broaden the residual exception to the hearsay rule, embrace electronic filing under the federal appellate rules, and assist judges with recusal questions on appeal. The new rules take effect on December 1, 2019. Section leaders believe the amendments will modernize appellate practice by embracing e-filing and also will give trial courts greater discretion to admit hearsay statements.

Adopted amendments broaden residual exception to the hearsay rule

Adopted amendments broaden residual exception to the hearsay rule

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Changes to Evidence Rule 807 Increase Judicial Discretion to Admit Hearsay

The new amendments to the residual exception to the hearsay rule in Federal Rule of Evidence 807 will shrink the rule’s requirements. The old rule made otherwise inadmissible hearsay statements admissible only when the out-of-court declaration was trustworthy, material, and served the interests of justice. The new amendment eliminates the requirement that the evidence must be material and the requirement that the proffered evidence must serve the interests of justice.

To fall within the new Rule 807 residual hearsay exception, the out-of-court statement must be trustworthy and be more probative than other reasonably available evidence. It also expands the procedure for admission of such evidence by permitting the trial court to admit hearsay “during the trial or hearing if the court, for good causes, excuses a lack of earlier notice.” That is a significant change from the current rule, which requires notice prior to the trial or hearing of the intent to use the statement.

“The new changes to Rule 807 are expansive and will lead to the admission of more hearsay evidence,” explains John S. Austin, Raleigh, NC, vice-chair of the ABA Section of Litigation’s Trial Practice Committee. “More importantly, the new Rule 807 allows courts to admit such evidence during trial for good cause, in comparison to the old Rule 807 which allowed admission only when notice of an intent to use was made before trial,” Austin expounds.

Another Section of Litigation leader anticipates less change but admits trial judges can exercise more discretion. “While the new Rule 807 might not significantly change the way the rule is applied, the new rule cleans up the text and places a greater emphasis on the trial judge as the gatekeeper,” says Steven Finell, Santa Rosa, CA, cochair of the Section’s Appellate Practice Committee's Appellate Rules Subcommittee.

Electronic Filing in Federal Appeals

The amendments to Federal Rules of Appellate Procedure clarify issues of electronic filing and service for appeals. The amendment to Rule 3 changes the manner in which the clerk must “serve notice of the filing of a notice of appeal” from the clerk “mailing” the notice to the clerk “sending” the notice, with certain specified exceptions. In most cases this change permits electronic service by the clerk. The amendment to Rule 5 now permits electronic service, and it eliminates the old requirement that a petition must be filed “with proof of service on all other parties to the district-court action.” Similarly, the amendments to Rule 25 eliminate the need to file a proof of service if a paper is filed “through the court’s electronic-filing system.” The amendments to Rule 26 now permit adding three days to a time computation only when “the paper is not served electronically.”

Section leaders suggest that these changes conform the rules to current practice. “Electronic filing is the norm,” says Finell. “These rule changes simply recognize the universal nature of those changes, including that e-filing is a better proof of service than filing a physical certificate of service,” Finell adds.

The New Rules Expand Corporate Disclosure Statements

New Rule 26.1 of the Appellate Rules of Procedure will mandate additional disclosures about nongovernmental corporations seeking to intervene on appeal, identification of organizational victims in criminal cases, and disclosure of all debtors in bankruptcy matters. Nongovernmental corporations must file a disclosure statement pursuant to Rule 26.1(a) that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock. The same requirement applies to a nongovernmental corporation that seeks to intervene.

In a criminal case, new Rule 26.1(b) requires identification of any organizational victim of alleged criminal activity. If the organizational victim is a corporation, the statement must disclose the parent corporation and any publicly held corporation owning more than 10 percent of its stock. In a bankruptcy matter, new Rule 26.1(c) requires identification of each debtor not named in the caption and for each debtor that is a corporation, must disclose the parent corporation and any publicly held corporation owning more than 10 percent of its stock. The increased disclosure obligations will assist judges in vetting potential conflicts.

Leaders See Amendments as Modernizing the Rules

Experts suggest that these changes better reflect modern practice. “In short, with these technical rule changes, the federal appeals courts are now simply catching up with the 20th Century,” says Austin. Finell agrees. “In summary, the changes, while not earth-shattering, clarify the electronic rules to conform with standard practice, and tighten up the discretion of judges to admit hearsay statements under the residual exception,” concludes Finell.


Erik A. Christiansen is an associate editor for Litigation News.

Hashtags: #Evidence #Hearsay #Appeals #AppellateRules #Recusal

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