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Seven amendments to the Federal Rules of Evidence will become effective on Dec. 1, barring congressional intervention (which appears quite unlikely). These amendments will have an immediate, and important, effect on cases pending on Dec. 1 — both at trial and in pretrial proceedings. The affected rules and pertinent topics are: Rule 103 — appealability of motions in limine. Rule 404(a)(1) — allowing the government to introduce evidence of the character of the accused if the defense places the victim’s character in issue. Rule 701 — curtailing the scope of “lay” witness opinion testimony. Rule 702 — codifying the U.S. Supreme Court’s decisions on expert testimony. Rule 703 — presumptively precluding the introduction of inadmissible matter relied on by experts. Rules 803(6) and 902(11)-(12) — authentication of business records via affidavit. This article addresses the changes to rules 103, 404(a)(1), 803(6) and 902. The official Advisory Committee Notes to all of the amendments — written by Professor Daniel J. Capra, of Fordham University School of Law, the reporter — are superlative and should be consulted. The notes can be found on the federal judiciary’s home page, at www.uscourts.gov/rules/approved.htm. RULE 103′S PURPOSE: PUTTING THE BAR ON NOTICE Appealability of Motions in Limine.The amendment to Rule 103 inserts an additional sentence at the end of subdivision (a) to address the appealability of in limine rulings. This is a subject on which the courts are divided. The amendment to Rule 103, dealing with the effect of an erroneous ruling, provides: “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” A significant motivation behind this amendment was to put the bar on notice of what is expected of lawyers who make in limine motions and later want to appeal the results. Evidentiary issues increasingly are resolved before trial, and few judges want to revisit at trial issues that they thoroughly considered earlier. The admissibility issue therefore is often not raised again at trial, but at present, that can lead to forfeiture of the issue on appeal. The great virtues of this amendment are: (1) it reminds litigants that it is essential to make a record to preserve appealability, and (2) it specifies the nature of the record that must be made — namely, that the pretrial decision is “definitive.” Notice that, although a split in the courts of appeals on in limine rulings spawned this amendment, the words “in limine” appear nowhere in the new language. That is not accidental. The rule is intended to govern all evidentiary rulings, regardless of when they are made (i.e., at any time other than when the evidence is offered into the record at trial), and regardless of whether the court’s ruling is precipitated by a motion labeled “in limine.” The fundamental concept is that, if the trial court has fully considered an evidentiary issue and finally resolved it, that ends the matter. There is no point in requiring the needless formality of bringing the issue to the judge’s attention again, particularly not by putting the unsuccessful litigant at risk of losing appellate review of the judge’s final decision. SEVERAL PRACTICAL ISSUES SHOULD BE KEPT IN MIND There are several practical issues that must be borne in mind in operating under this amendment. First, the litigant who wishes to preserve the error for appellate review bears the burden of ensuring that the record clearly reflects that the ruling is “definitive.” The best way is to ask the judge to answer that question directly — either at the time of the ruling, during the final pretrial conference or at some other time, or in some other way, that ensures the answer is on the record. The last thing the losing party wants is to litigate on appeal whether the trial judge’s ruling was intended to be definitive. If there is any doubt about the state of the record on this score, the only safe course is to renew the objection or proffer on the record at trial. Second, the court can always change its mind. Nothing prevents a party from asking the judge to reconsider an issue in light of the evidence presented at trial. In limine rulings are necessarily predicated on assumptions as to pertinent facts. If the trial record proves inconsistent with the assumptions, a party may successfully request reconsideration, or the court may independently reverse itself. If the issue is reconsidered and the prior ruling reversed, the adversely affected party must make an objection or proffer to preserve appealability. Third, during the comment period on this amendment in 1998-99, it was pointed out that pretrial evidentiary issues decided by magistrate judges raise special issues. Fed.R.Civ.Proc. 72(a) and 28 U.S.C. 636(b)(1) each impose a 10-day deadline for objecting to magistrate judge determinations of “nondispositive matters” or proposed findings and recommendations to the district judge. Missing that 10-day deadline generally bars appellate review. The 2000 amendment to Rule 103(a) offers no safe harbor in this circumstance. Fourth, the Advisory Committee Note stresses that nothing in this amendment changes the rule in criminal cases laid down in United States v. Luce, 469 U.S. 38 (1984). Luceholds that a criminal defendant who unsuccessfully moves in limine to suppress cross-examination on his prior convictions may not appeal that ruling if he thereafter declines to take the stand and submit to that cross-examination. (The draft of Rule 103(a) put out for public comment would have codified and extended Luceto civil cases. This was eliminated in the final draft, and the Lucediscussion was relegated to the Advisory Committee Note.) Fifth, if you have lost a motion in limine to exclude evidence and want to remove the sting by offering it at trial, do you waive your right to appeal the in limine ruling? The rule is silent on this question, and the Advisory Committee Note “does not purport to answer [it].” Rather, the note cites cases from different circuits coming down squarely on both sides of the issue. PROSECUTOR’S EXCEPTION ON CHARACTER EVIDENCE Evidence of Accused’s Character.The amendment to Rule 404(a)(1) applies only in criminal cases, furnishing a new exception for prosecutors to the general rule prohibiting the introduction of character evidence. It provides that “if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution” is not excluded by Rule 404(a). This amendment was prompted by a flurry of bills in Congress that sought to do something similar but raised numerous drafting and other issues. The amendatory language is different from that which was put out for public comment by the Advisory Committee in 1998. The exception, as adopted, is limited to “evidence of the same trait of character” of the victim. The Advisory Committee originally proposed a broader exception — for evidence of any “pertinent” trait of the victim’s character. Because this amendment reverses centuries of precedent, it was deemed prudent to limit its scope and avoid opening a floodgate of litigation on difficult questions of pertinence. The amendment seeks to strike a balance. Unless the accused raises the issue of the victim’s character under Rule 404(a)(2), this new avenue of admissibility is not available to the prosecutor. That raises an important tactical issue for the defense. In most cases, the defense has no need to raise the issue of the victim’s character in such a way as to trigger this prosecutorial right — i.e., it has no need to offer evidence of the character of the victim to prove that the victim acted in conformance therewith. If the defense merely puts in the evidence as bearing on the defendant’s state of mind concerning the victim’s aggressiveness and does not offer the evidence to show that the defendant acted in conformity with that character at the time of the incident at issue, that can circumvent operation of this amendment. Self-Authentication of Business Records.At present, the federal courts face a rather anomalous situation. Business records of foreign companies are admissible in criminal trials under a simple, prescribed certification procedure, pursuant to 18 U.S.C. 3505. But business records of American companies cannot be introduced in that fashion in criminal cases, and no business records can be admitted in civil cases without live testimony (or, more typically, a stipulation hammered out by a federal judge). The amendments to rules 803 and 902 cure this anomaly. The key amendments are in Rule 902(11) and (12). Rule 902(11) applies to U.S. business records and provides a route for self-authentication in both civil and criminal cases. It requires a declaration by the “custodian or other qualified witness” in the form of an affidavit or declaration — e.g., pursuant to 28 U.S.C. 1746 — certifying that each underlying business record: (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters. (B) was kept in the course of the regularly conducted activity. (C) and was made pursuant to the regularly conducted activity as a regular practice. These three subparts state the familiar criteria of Rule 803(6), the business records exception to the hearsay rule. TO PREVENT UNFAIRNESS, NOTICE REQUIREMENT APPLIES To prevent unfairness, there is a notice requirement built into Rule 903(11) — notice as to both the certification itself and the underlying records that it purports to authenticate. The requirement is stated as follows: “A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties and must make the record and declaration available for inspection sufficiently in advance of an offer into evidence to provide an adverse party with a fair opportunity to challenge them.” Rule 902(12) is a substantially identical provision that applies to foreign business records, but it extends only to civil cases because 18 U.S.C. 3505 already provides a similar route to admissibility in criminal cases. The amendment to Rule 803(6) is purely conforming. It authorizes the self-authentication by affidavit or declaration, by no longer demanding “testimony of the custodian or other qualified witness.” It now also recognizes a “certification that complies with Rule 902(11), Rule 902(12) or a statute permitting certification” (e.g., 18 U.S.C. 3505). The most important practical aspect of this self-authentication mechanism is the notice requirement. Nothing will prevent any party from challenging the authenticity of documents that are certified by affidavit or declaration, but these amendments have the practical effect of shifting the burden of coming forward onto the opponent, who is faced only with a certification. No longer can the opponent merely object to the document — e.g., in the pretrial order — and demand a live witness to cross-examine at trial. Now that the certification does the job for the proponent, the opponent bears the burden of coming forward with evidence challenging authenticity. This will require foresight in taking discovery. It would be wise to build into the pretrial order a specific date by which the notice must be given, so that the opponent knows where it stands with respect to important, self-authenticating documents and can plan accordingly. Gregory P. Joseph chairs the litigation department at New York’s Fried, Frank, Harris, Shriver & Jacobsonand is past chair of the Litigation Section of the ABA. He can be reached at [email protected]

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