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1 JUNE 1999 CHANGE TO MILITARY RULES OF EVIDENCE

 

Reminder to all that MREs 407, 801(d)(2), 803, 804, and 807 were amended/adopted effective 1 Jun 99 pursuant to the operation of MRE 1102 (The FREs were amended effective 1 Dec 97).

 

MRE 407 now reads as follows:

Rule 407. Subsequent remedial measures

When, after an injury or harm allegedly caused by an event, measures are taken which that, if taken previously, would have made the event injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Note: In its 1998 Annual Review, the JSC recommended that the President keep the old language for this MRE. However, an executive order with this change is not likely to be signed prior to late in the year 2000.

Note: There is a typo in the last sentence of MRE 407 of the MCM 98 Edition ("or feasibility or precautionary measures" should be "or feasibility of precautionary measures").

 

MRE 801(d)(2) now reads as follows:

(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement in either the party's individual or representative capacity, or (B) a statement of which the party has manifested the party's adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment of the agency or employment of the agent or servant, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

 

MRE 803(24) now reads as follows:

     (24) [Transferred to Rule 807]

 

MRE 804(b)(5) and (6) now read as follows:

     (5) [Transferred to Rule 807]

(6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

 

MRE 807 is new and reads as follows:

Rule 807. Residual Exception

     A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.