Saving an Old Friend from Extinction: A Proposal to Amend Rather than to Abrogate the Ancient Documents Hearsay Exception
UCLA Law Review Discourse, 2015
14 Pages Posted: 22 Sep 2015 Last revised: 14 Nov 2015
Date Written: November 13, 2015
This essay critically assesses a pending, proposed amendment to the Federal Rules of Evidence — slated to take effect in December, 2017 — that would abrogate Federal Rule of Evidence 803(16), the hearsay exception for ancient documents. The proposed amendment was motivated largely by a fear that large quantities of potentially unreliable, stockpiled, electronically stored information (ESI) are approaching the threshold age for being deemed “ancient” and could thus be swept into evidence via the exception.
In the essay, I provide an overview of the proposed amendment. I demonstrate that although the proposal is a well-intentioned effort to deal with a potential problem, abrogating rather than amending the hearsay exception is unduly strong medicine. I contend that in proposing abrogation, the drafters of the proposed amendment have overstated the risks associated with Rule 803(16) and understated its utility, and that such a move would put the Federal Rules of Evidence out of sync with those of all but one of the fifty states. Furthermore, I propose a set of amendments that would remedy what the drafters of the proposed amendment identified as Rule 803(16)’s deficiencies, while at the same time allowing its continued use in those rare cases where it may serve as the only gateway to admitting evidence necessary to prove ancient wrongs deserving of vindication.
Keywords: evidence, hearsay exceptions, Federal Rules of Evidence, electronically stored information (ESI), ancient document
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