TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 12, 2018
RE: Rule 803, N.D.R.Ev., Exceptions to the Rule Against Hearsay - Regardless of Whether the Declarant is Available as a Witness
Effective Dec. 1, 2017, Fed.R.Ev. 803 was amended to define an "ancient document" as one that was prepared before Jan. 1, 1998.
The federal rules committee acknowledged long term criticism, which assumes that because an ancient document is authentic, all of the statements in the document are reliable enough to be admissible despite the fact they are hearsay. The committee decided to act on this criticism now because the exception will soon become applicable to a vast number of electronic documents.
The committee decided to amend the rule to limit the ancient documents exception to documents prepared before 1998 because, going backward, this cutoff date addressed concerns of those who rely on the exception for very old documents and going forward, it would encourage preservation of reliable electronically stored information so it can be used to prove facts that are currently proved by scarce paper documents.
Proposed amendments to Rule 803 based on the federal rule amendments are attached.