Future MRE change – maybe?

Professor Colin Miller at Evidence Prof blog draws attention to a Wisconsin Law Journal article about a proposed change to Fed. R. Evid. 804.

In September, the Judicial Conference of the United States adopted the recommendation of the Advisory Committee on Evidence Rules to amend Federal Rule of Evidence 804(b)(3) so that prosecutors, as well as defendants, need to present evidence of corroborating circumstances before admitting statements against interest. This change is based upon opinions by certain courts already adding this requirement, such as the Seventh Circuit in United States v. Garcia, 897 F.2d 1413, 1420 (7th Cir. 1990), and the Fifth Circuit in United States v. Alvarez, 584 F.2d 694, 701 (5th Cir. 1978). The article notes that the proposed rule change was not controversial because “It operates only against the government, and the government did not oppose it.” The government’s lack of opposition was likely based upon the fact that the proposed rule is clearly fair.

Here is a link to the current rule.

Here is a link to the proposed rule, courtesy of FederalEvidence blog.

Assuming the rule becomes effective in December 2010, then absent Presidential (read DOD JCS) action, the rule will apply in courts-martials after June 2012 (Mil. R. Evid. 1103). Note that unlike DOD JCS and other MCM change practice, the federal process of rules change is completely transparent, researchable, and there is a rich history of discussion and comment.