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Supreme Court Proposes Amendments to the Federal Rules of Evidence

January 01, 1997-On April 11, 1997, the U.S. Supreme Court announced amendments to the Federal Rules of Evidence, and submitted them to Congress. The rule changes to FRE 407 and FRE 801 will take effect on December 1, 1997, unless otherwise provided by Congress. 28 USC 2074.

Amendments to FRE 407 expressly extend the subsequent remedial measures exclusion to product liability actions:

Proposed Rule 407. Subsequent Remedial Measures

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the 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.

The new FRE 801(d)(2) essentially allows courts to "bootstrap," by permitting them to consider the contents of statements made by an alleged agent or co-conspirator to prove the existence of the agency or conspiracy:

Proposed Rule 801. Definitions

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(d) Statements which are not hearsay.

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(2) Admission by party-opponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or representative capacity or (B) a statement of which the party has manifested an 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, made during the existence of the relationship, or (E) a statement made by a coconspirator 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).