Last week I had the honor of testifying before the Judicial Conference Advisory Committee on Evidence Rules – a committee created by the US Supreme Court’s Judicial Conference. I was one of 10 lawyers allowed to present oral testimony to the committee regarding a proposed amendment or abrogation of FRE 803(16), the ancient documents rule. This rule, a longstanding exception to the hearsay rule, is based on necessity and reliability. It allows the use of written documents as evidence which would otherwise be hearsay. The present rule requires that the documents be over 20 years old, and therefore they precede litigation and are deemed to be reliable. These “ancient documents” can substitute for the testimony of witnesses whose memories may fade, health may change and or even possibly pass away. For this and other reasons, I strongly urged the Committee to leave the rule in its present format.
To read my full argument to the Committee, please see the attached document: