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Eq PUBLIC SUBMISSION

Comment from Levine, Bobby

Posted by the United States Courts on Aug 20, 2025

Docket (/dockeUUSC-RULES-EV-2025-0034)

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Comment

This comment urges the adoption of an amendment to FRE 609(b) that clarifies the endpoint for measuring the

age of a conviction. While any clarification on how to properly measure a conviction's age would be an

improvement, the most appropriate endpoint is not the start of trial-it is the date of indictment in a criminal

case or complaint in a civil case. Those dates are more faithful to the very reasons provided in the current

proposal. While a more comprehensive account of these issues is explained in my article "The Missing

Endpoint of Rule 609(b )" HARV. J. L. & PUB. POL'Y: PER CURIAM (2024 ), the remainder of this comment

addresses a few salient issues. A copy of the article is attached for reference.

First, the Committee's memorandum states that the date of trial is the most desirable endpoint because it is

"the date that is most easily administered." Not so. Among possible endpoints, any date that is easily reduced

to a single calendar day without additional fact finding will be equally administrable. Therefore, administrability

concerns should only eliminate the possibility of using the date of the criminal offense as an endpoint because

crimes can be committed over the course of multiple days, and additional factfinding may be necessary to

determine the relevant offense date.

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Second, the Committee's memorandum states that the date of trial is "the least amenable to manipulation."

That is incorrect for several reasons. Endpoints that are earlier in the lifecycle of a case will generally be least

subject to manipulation because at that stage, the odds of a case going to trial are exceedingly slim-in 2022,

only 2.3% of federal criminal defendants went to trial. However, as trial nears, it becomes more likely that

impeachment by a prior conviction will be necessary, which provides the incentive to engage in such

gamesmanship.

The date of indictment has an additional manipulation constraint baked into the grand jury processprosecutors are constrained by their available evidence. The grand jury is already an established check on

prosecutors' ability to expedite indictments because prosecutors cannot get a true bill without first showing

probable cause that the accused person committed a crime.

If prosecutors want to delay getting an indictment to decrease the likelihood that a government witness's prior

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conviction will be admissible, they face significant tradeoffs that make the prospect of gamesmanship an

unattractive decision. Prosecutors with enough evidence to get an indictment are unlikely to delay going to a

grand jury and risk the prospect that the suspect will either flee or continue to commit crime.

On the other hand, using the start of trial as 609(b )'s endpoint will lead to scheduling tactics. At that point,

litigants will be more certain of their need to use the conviction as evidence and they can engage in multiple

strategies to change a trial date. This concern has been raised by courts in the past. While the First Circuit has

used the start of trial as an endpoint in a case where "the government [did not] manipulate□ either the calendar

or the scheduling process in order to postpone the trial and allow the clock to run," that was a real risk that

required a factual determination by the judge. United States v. Nguyen, 542 F.3d 275,281 (1st Cir. 2008).

While there may not have been gamesmanship in that specific case, neither the litigants nor panel argued that

using the start of trial, on the whole, avoids incentivizing delay compared to earlier alternatives. Litigants have

various tools at their disposal before a trial begins to protract proceedings, including additional motion practice,

slow-rolling discovery, requesting distant deadlines, or requesting adjournments. Given courts' concern about

parties using gamesmanship to conform with 609(b )'s time limit and the ideal of the FRE to promote an

efficient judicial process, FED. R. EVID. 102, the date of the indictment is the preferable endpoint. See also

United States v. Martin, No. CR 24-196 (BAH), 2025 WL 1795125 (D.D.C. June 30, 2025) (referencing the

"important policy argument" that using the start of trial as 609(b )'s endpoint may lead to "problematic"

gamesmanship).

Third, the Committee claims that the start of trial is the proper date for determining the credibility of a witness

who will testify at that trial. While the credibility of the witness is a central purpose of Rule 609(b), the portion of

the rule that addresses that goal is the 10 year limit. The endpoint is merely a secondary mechanism that is

used to make the age measurement. So, the process of picking an endpoint should be focused more on

administrability, efficiency, and avoiding manipulation tactics, while the goal of measuring witness credibility

and the probative value of the conviction is addressed by the choice of 1O years as a threshold to measure

staleness.

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Spring 2024

Harvard Journal of Law & Public Policy: Per Curiam

No. 09

THE MISSING ENDPOINT OF RULE 609(b)

BOBBY LEVINE*

INTRODUCTION

Federal Rule of Evidence 609(b) (“609(b)”) limits when a lawyer can impeach a witness using

their prior criminal convictions.1 To impeach a witness with a prior conviction that is more than

10 years old, there is a heightened standard for admissibility. The judge must find that its

probative value “substantially outweighs its prejudicial effect.”2 That language may sound

familiar. It is a specialized application of the far less demanding threshold of Rule 403.3 There is

one problem. The Federal Rules leave judges and lawyers unequipped to measure the age of a

conviction.4 Judges are unable to determine which convictions are more than 10 years old. This

inadequacy requires judges to make purely policy-based decisions that inevitably lead to

arbitrary outcomes for litigants and has fueled a circuit split.

Although the Federal Rules of Evidence provide a start date for measuring the age of a

conviction—“the witness’s conviction or release from confinement for it, whichever is later”—

inexplicably, there is no endpoint.5 There is nothing indicating whether a conviction must be 10

years old at the time of the events underlying the instant case, the time of arrest, or indictment,

the start of trial, or the beginning of that witness’s testimony. This ambiguity can cause real

* J.D. Candidate, Harvard Law School (2025). I am extremely grateful to Esther Levine, Professor Emily Schulman, Professor

Lisa Kern Griffin, Tom Koenig, and Marcos Mullin for their helpful comments and support. Any errors are my own.

FED. R. EVID. 609(b).

2 Id. While this standard for admitting convictions that are more than 10 years old is not necessarily dispositive, it creates

a massive barrier to admissibility because it is presumed that convictions lose their probative value for impeachment as they

age. It is that probative value that must “substantially outweigh [the prior conviction’s] prejudicial effect.”

FED. R. EVID. 403 (allowing courts to exclude evidence if “its probative value is substantially outweighed by . . . unfair

prejudice”); See FED. R. EVID. 609(a)(1)(A)–(B) (governing the admissibility of convictions that are less than 10 years old and

mandating their admissibility for impeachment purposes under less strict standards that balance the conviction’s probative

value and prejudicial effect).

Much ink has been spilled about the fairness of Rule 609. See, e.g., Jeffrey Bellin, Circumventing Congress: How the Federal

Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. DAVIS L. REV. 289, 290 (2008) (claiming

that Rule 609 “unnecessarily deter[s] defendants from testifying and improperly penalize[es] those who do take the witness

stand”); Alan D. Hornstein, Between Rock and A Hard Place: The Right to Testify and Impeachment by Prior Conviction, 42 VILL. L.

REV. 1, 61 (1997) (same). Several scholars have gone as far as seeking to abolish Rule 609 entirely. See, e.g., Richard Friedman,

Character Impeachment Evidence: Psycho-Bayesian (!?) Analysis and a Proposed Overhaul, 38 UCLA L. REV. 637, 639 (1991) (arguing

that “rule 609 should be repealed”); Anna Roberts, Conviction by Prior Impeachment, 96 B.U. L. REV. 1977, 1978 (2014) (proposing

“abolition” based on three state models). This Essay instead focuses on a problem related to the application of 609(b) that has

received considerably less attention. The scope of this argument is more limited and is intended to be helpful for judges,

litigants, practicing attorneys, and those who think that Rule 609 should be improved, not discarded.

5 FED. R. EVID. 609(b).

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No. 09

differences in whether courts deem impeachment proper, given that the life cycle of a federal case

regularly spans a year or more.6

When does this problem arise? Take the case where a criminal defendant pled guilty to an

assault charge on January 1, 2010, and was not sentenced to a term of imprisonment. 7 Law

enforcement later caught him distributing illegal narcotics in January 2019, and a grand jury

indicted him that same month. As his case proceeded through discovery and motion practice, a

little more than a year passed before the trial commenced in the spring of 2020. Before the trial

began, the government filed a motion in limine to impeach the defendant using his prior

conviction for assault if he took the stand. The judge’s decision will likely turn on whether the

assault conviction is more than 10 years old and, therefore, must satisfy 609(b)’s heightened

balancing test for admissibility. 609(b) instructs the judge to start the clock on January 1, 2010,

the day the defendant was convicted of assault. However, whether the conviction is more than

10 years old depends on when the clock stops ticking, which 609(b) leaves unanswered.8

The ambiguity in 609(b) leads to arbitrary evidentiary rulings. Two similarly situated parties,

convicted of the same crime on the same day and later at trial on the same issue, may receive

different rulings because they are in a different circuit, district, or even just because they were

assigned a different judge. The prior conviction may be admitted in one instance and ruled

inadmissible in the other because, as it is currently written, 609(b) requires judicial discretion to

determine the endpoint of the 10 year period. Because neither the text of the rule, the Advisory

Committee Notes, nor the Congressional Reports help solve this problem, judges have no helpful

basis for their decision. They are forced to rely on their instincts as to which endpoint comports

with the rule’s purpose and is most desirable from a policy perspective. In other words, courts

cannot look to proper sources of a rule’s meaning to deploy the interpretive tools they are

accustomed to using.9 The solution that best remedies this lack of consistency and these arbitrary

outcomes is to provide a bright line rule, a specific endpoint, for judges to follow in the Federal

Rules of Evidence.

6 Christopher Slobogin, The Case for A Federal Criminal Court System (and Sentencing Reform), 108 CAL. L. REV. 941, 946–47

(2020) (“[T]he median time from initiation of a traditional criminal case to its termination at the district court level has

skyrocketed by more than 200 percent . . . to over seven months.”).

7 This example assumes the case is in a jurisdiction that has not yet ruled on this issue. Of course, a trial judge is bound by

circuit precedent to the extent it exists.

8 It is not uncommon for a case to straddle the 10 year time limit of 609(b) in this manner. See, e.g., United States v. Griffin,

437 F.3d 767, 769 (8th Cir. 2006) (defendant was indicted within the 10 year period but released from confinement for the prior

conviction 10 years and one month before the trial); United States v. Nguyen, 542 F.3d 275, 278 (1st Cir. 2008) (witness was

convicted with no confinement imposed 10 years and three weeks before commencement of the appellant’s trial); United

States v. Thomas, 815 F. App’x 671, 676–78 (3d Cir. 2020) (prior conviction occurred more than 10 years before trial but less

than 10 years before the alleged offense conduct). Additionally, this issue is present in many cases even if it is not raised by

litigants or addressed in a written opinion. It is pertinent any time a witness testifies in a case, criminal or civil, if they have a

prior conviction that is in the vicinity of the 10 year mark.

9 Edward J. Imwinkelried, A Brief Defense of the Supreme Court’s Approach to the Interpretation of the Federal Rules of Evidence,

27 IND. L. REV. 267, 273 (1993) (arguing that the Supreme Court has correctly applied a textualist approach to interpreting the

Federal Rules of Evidence); Edward J. Imwinkelried, Moving Beyond “Top Down” Grand Theories of Statutory Construction: A

“Bottom Up” Interpretive Approach to the Federal Rules of Evidence, 75 OR. L. REV. 389, 391 (1996) (“Although Justices routinely

consider extrinsic material such as Advisory Committee Notes and congressional committee rules, they ordinarily interpret

the language of the rules according to their plain meaning, unless a literal construction would lead to an absurd, or perhaps

even an unconstitutional, result.”).

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The admissibility of a prior conviction is significant because it provides powerful evidence

that attacks the witness’s credibility.10 For example, defense attorneys often use Rule 609 to

impeach the government’s cooperating witnesses in criminal cases when those witnesses have

prior convictions. It becomes a primary line of attack on cross-examination and often features in

the defense’s arguments: The government’s star witness, the cooperator, cannot be trusted

because of his criminal past. Presenting evidence of a prior conviction works just as powerfully

when the government attacks a criminal defendant with their criminal history.11 The import of a

court’s admissibility determination under Rule 609 extends to often critical strategy decisions

about whether to call a witness that will be subject to impeachment with their prior conviction. 12

Age limits are everywhere and should be easy to implement. Take, for example, airline

tickets. Many airlines place age restrictions on when toddlers need their own seats and flight

tickets. JetBlue’s policies specify that “[l]ap children under the age of 2 years old at the time of

departure on U.S. domestic flights do not need to be ticketed.”13 JetBlue provides a workable rule.

If two years or more have passed between the child’s birth and the flight’s departure, the child

needs a ticket. The Federal Rules should mimic this clarity in its age restrictions.

Part I of this Essay will take a closer look at the text of 609(b). Part II will offer relevant

background information about 609(b) and walk through the Advisory Committee Notes and

Congressional Reports. Part III will describe the current lay of the land among the courts,

including a circuit split on this issue. Finally, Part IV offers independent analysis and ultimately

suggests, contrary to recent scholarship,14 that 609(b) should be amended to specify that the

proper way to measure the age of a conviction is until the date of indictment in a criminal case or

complaint in a civil case.

THE TEXT OF 609(b)

The Supreme Court has deployed the same methods to interpret the Federal Rules of

Evidence as it has any other legislation.15 Therefore, interpreting the Federal Rules of Evidence

Ric Simmons, An Empirical Study of Rule 609 and Suggestions for Practical Reform, 59 B.C. L. REV 993, 994 (2018) (finding,

based on survey results, that “crimes of theft have a high probative value for proving lack of credibility”).

Hornstein, supra note 4 at 1 (“If the jury learns that a defendant previously has been convicted of a crime, the probability

of conviction increases dramatically.”).

Donald Dripps, Akhil Amar on Criminal Procedure and Constitutional Law: “Here I Go Down That Wrong Road Again”, 74 N.C.

L. REV. 1559, 1632 (1996) (“The principal reason why defendants refuse to take the stand is that they fear impeachment with

prior convictions.”); Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 NOTRE DAME L. REV. 403, 482

(1992) (“[C]onviction impeachment can be a powerful deterrent to taking the witness stand.”).

13 Ticketing Policies, JETBLUE (Jan. 14, 2024), https://www.jetblue.com/travel-agents/ticketing-policies (emphasis added).

14 Daniel J. Capra & Jessica Berch, It’s A Code: Amending the Federal Rules of Evidence to Achieve Uniform Results, 58 WAKE

FOREST L. REV. 549, 563 (2023) (advocating for an amendment that sets 609(b)’s endpoint “on the day the witness first

testifies”).

15 Glen Weissenberger, The Supreme Court and the Interpretation of the Federal Rules of Evidence, 53 OHIO ST. L.J. 1307, 1311–12

(1992).

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demands first looking at the plain meaning of the rule,16 which means analyzing the text itself.17

Unfortunately, the rule’s text leaves the endpoint of 609(b)’s time limit ambiguous.

Rule 609(a) sets out the initial scope of impeachment by prior conviction: litigants can use

the evidence to attack a witness’s character for truthfulness. Rules 609(a) and 609(b) then set forth

details regarding whether that evidence is admissible based on circumstances that may alter the

probative value of the evidence or its prejudicial effect.18 609(b) is titled “Limit on Using the

Evidence After 10 Years.”19 The body of 609(b) is divided into two subparts and reads as follows:

This subdivision (b) applies if more than 10 years have passed since the witness’s

conviction or release from confinement for it, whichever is later. Evidence of the

conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially

outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it

so that the party has a fair opportunity to contest its use.20

The first sentence of 609(b) explains when the rule applies. It provides a variable starting

point that depends on the facts of the case. One would expect to find the endpoint adjacent to

the starting time. Not only is it not in the vicinity of 609(b)’s specified start date, but the endpoint

is not found in either subpart of the rule. The first subpart describes the appropriate balancing

test of probative value and prejudicial effect to determine the admissibility of convictions once a

court has already determined that a conviction is over 10 years old. Likewise, the second subpart

of 609(b) imposes a notice requirement, which, again, is only relevant once a court determines

that a conviction is more than 10 years old.

While one should first turn to the text to interpret a rule, searching for how to measure the

age of a conviction in 609(b)’s enacted language is futile, given its total silence on half the

equation—the endpoint.

II.

HISTORY, NOTES, AND REPORTS

Our judicial system has not always needed to grapple with when to allow impeachment using

prior convictions because, at common law, felons or those convicted of misdemeanors involving

crimen falsi (dishonesty) were not deemed competent witnesses.21 This bar on witnesses with a

criminal history testifying (and therefore prior conviction impeachment) was partially

16 See Bourjaily v. United States, 483 U.S. 171, 178 (1987) (determining that Rule 104 “mean[s] what it says” and declining to

“require legislative history to confirm the plain meaning”); Randolph N. Jonakait, The Supreme Court, Plain Meaning, and the

Changed Rules of Evidence, 68 TEX. L. REV. 745, 749 (1990).

17 See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 508 (1989) (declaring that determining the meaning of Rule 609

requires beginning with the text); Tome v. United States, 513 U.S. 150, 167 (1995) (Scalia, J., concurring in part) (emphasizing

the importance of the text of a rule when trying to derive its meaning because “[i]t is the words of the Rules that have been

authoritatively adopted”).

18 FED R. EVID. 609(a)–(b); see S. Rep. No 93-1277, at 7061 (1974).

19 FED R. EVID. 609(b).

20 Id.

21 EDWARD W. CLEARY, MCCORMICK ON EVIDENCE § 43, at 93 (3d ed. 1984).

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rationalized by the idea that those potential witnesses lacked credibility. 22 Once convicts were

permitted to testify, they could do so on the condition that the opposing side could impeach them

using their prior convictions.23 That was before the Federal Rules of Evidence took effect.24

In 1969, an Advisory Committee appointed by the Judicial Conference of the United States

submitted its preliminary draft suggesting the initial form of the Federal Rules of Evidence. 25 The

proposal included Rule 6-09, which eventually became Rule 609.26 The proposed Rule 6-09

already included an age limit that restricted the admissibility of prior convictions for

impeachment purposes.27 Unlike the modern rule, Rule 6-09 did not permit impeachment using

convictions over 10 years old under any circumstances.28 Similarly to the modern rule, Rule 6-09

specified the starting point for the calculation of the age of a conviction (albeit slightly differently)

and lacked any mention of an endpoint.29 The error of failing to specify how to conduct the age

calculation for a conviction stems from the original drafting of the rules prepared by the Advisory

Committee on Federal Rules of Evidence.

When the Advisory Committee drafted an initial set of rules, it provided explanatory notes

accompanying each proposed rule.30 The note regarding proposed Rule 6-09(b) justified using a

time limit by arguing that “practical considerations of fairness and relevancy demand that some

boundary be recognized.”31 The Advisory Committee modeled its proposed federal age limit

after a similar proposed but unadopted rule for the California Evidence Code. 32 The Advisory

Committee provided no insight into how it determined the starting point for measuring the age

of a conviction, why it did not include an endpoint, or whether it ever weighed different possible

endpoints.

By 1973, the Advisory Committee had submitted its proposed Federal Rules of Evidence to

the Supreme Court, which promulgated the rules and transmitted them to Congress.33 The House

failed to catch the Advisory Committee’s oversight. The House amended 609(b) only to clarify

which convictions were admissible impeachment evidence when a witness’s most recent felony

was within 10 years but failed to discuss how to measure the age of a conviction under the 10

year rule.34 Before the Federal Rules of Evidence first went into effect in 1975,35 Congress made

one additional amendment: 609(b) would not create a total bar to impeachment using convictions

more than 10 years old and instead would permit admission if “the probative value of the

conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial

Bock Laundry Mach. Co., 490 U.S. at 511 (quoting 3 JACK WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S EVIDENCE ¶

609[02], at 609–58 (1988)).

23 Id.

See Lester B. Orfield, Competency of Witness in Federal Criminal Cases, 46 MARQ. L. REV. 324, 329–30 (1963).

25 Preliminary Draft of Proposed Rules of Evidence, Advisory Committee’s Note, 46 F.R.D. 161, 171 (1969).

26 Id. at 296.

27 Id.

28 Id.

29 Id.

30 Id. at 171.

31 Id. at 299.

32 Id.

33 H.R. Rep. No. 93-650, at 7077 (1973).

34 Id. at 7085.

35 FED. R. EVID. Historical Note.

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effect.”36 The Senate Report accompanying this amendment discussed the purpose of 609(b) (the

diminished probative value of older convictions) but made no mention of its application. 37

At no point since the Federal Rules of Evidence took effect has 609(b) been amended or even

mentioned in Advisory Committee Notes or a Congressional Committee Report. 38 The history of

this rule, just like its text, remains devoid of any information that could reasonably assist the

interpretation of how to calculate the age of a conviction.

III.

THE CIRCUIT SPLIT

Several circuits have already been confronted with 609(b)’s nonexistent endpoint, and each

has decided the endpoint in its respective circuit. While most of these cases have determined that

the endpoint is the start of trial, there has not been a unanimous answer, with some courts using

the offense date or the indictment date. Additionally, in some cases, courts managed to avoid

interpreting 609(b) by deciding the case on other grounds. While no circuit has binding precedent

that mandates using the arrest date or date of testimony as endpoints, there is dicta that suggests

courts would be justified in using those endpoints in the future. A common theme is that none

of the cases that have addressed 609(b)’s endpoint looked carefully at the text or history of the

rule, and rarely did they engage in a comprehensive policy discussion that weighed the merits of

the competing options. Instead, many of the opinions fail to adequately grapple with the issue

presented in this paper. The remainder of this section provides a closer look at these rulings.

A. Start of Trial

The First Circuit, in United States v. Nguyen, used the start of trial as the endpoint for

measuring the age of a conviction under 609(b).39 In that case, the defendant appealed the

exclusion of a victim-witness’s prior conviction.40 The clock started running in May 1996, the date

of the conviction, because the witness received a nonjail sentence and therefore, there was no

period of confinement.41 Nguyen’s trial started in June 2006, and the First Circuit used that as the

endpoint, which placed the prior conviction just outside the 10 year limit at 10 years and one

month old.42 Using the offense date of June 2005 or the date of indictment in December 2005

would have compelled a different result; the prior conviction would not have been stale.43

While the Nguyen opinion does not include a textual or historical analysis of the rule to reach

its conclusion, it does contain two policy justifications. First, the opinion focuses on the need for

consistency across cases by focusing on the “bright line” that 609(b) draws.44 It rejects any case-

S. Rep. No 93-1277, at 7061–62 (1974); H.R. Rep. No. 93-1597, at 7103 (1974).

S. Rep. No 93-1277, at 7061 (1974).

38 See FED R. EVID. 609 advisory committee’s note to 1987 amendment (making only technical amendments); FED R. EVID.

609 advisory committee’s note to 1990 amendment (only discussing rule 609(a)); FED R. EVID. 609 advisory committee’s note

to 2006 amendment (only discussing 609(a)); FED R. EVID. 609 advisory committee’s note to 2011 amendment (restyling, not

making substantive changes).

39 542 F.3d 275, 280–81 (1st Cir. 2008).

40 Id. at 278.

41 Id.

42 Id. at 279.

43 See id. at 276–77.

44 Id. at 281.

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specific “redrawing” even in close cases, like Ngyuyen’s, because “whenever the law draws a

line, some events will fall on the ‘other’ side.”45 This explains a preference against using different

endpoints depending on case-specific circumstances. Second, the opinion suggests that its use of

the trial date as the endpoint is informed by ensuring judicial economy and avoiding undue

delay.46 While the Nguyen court would have looked unfavorably upon scheduling gamesmanship

designed to make a prior conviction too old for admissibility, it found that “[t]here [was] no

suggestion here that the government manipulated the calendar or the scheduling process in order

to postpone the trial and allow the clock to run.”47

Several opinions reached the same conclusion as Nguyen but provided essentially no analysis.

For example, two Third Circuit opinions use the start of trial as the endpoint for 609(b) without

any discussion of the content of the rule or prior precedent. United States v. Williams effectively

rewrites 609(b) without explanation by declaring, “609(b) prohibits impeachment based on

convictions for which the witness was confined and released more than ten years prior to trial.”48

United States v. Hans makes an almost identical maneuver by only citing 609(b) itself to support a

conclusion that a prior conviction is within the time limit if “the conviction or the witness’ release

from prison occurred within 10 years of the trial.”49 The Fifth,50 Seventh,51 Eighth,52 and Ninth53

Circuits have made similar bare-bones decisions using the start of trial as 609(b)’s endpoint. As

previously discussed, there is no support for this proposition in the text or history of 609(b).

The decisions based on insufficient analysis or support from the Federal Rules of Evidence

were path-making: largely decided shortly after the Federal Rules of Evidence took effect,54 later

cases continue to cite this first generation as adequate support for using the start of trial as 609(b)’s

endpoint, even when they are not binding.55 In United States v. Watler, the Eighth Circuit

demonstrated how a dangerous feedback loop of citations can continue.56 In that case, the

defendant was indicted in 2003, less than 10 years after his prior theft conviction, and tried in

2005, more than 10 years after the theft conviction.57 The defendant argued that the trial court

Id.

47 Id.

48 892 F.2d 296, 301 (3d Cir. 1989) (emphasis added).

49 738 F.2d 88, 93 (3d Cir. 1984) (emphasis added).

50 United States v. Cohen, 544 F.2d 781, 784 (5th Cir. 1977) (stating, in a conclusory manner, that “[s]ince the trial commenced

in July of 1975” the prior conviction exceeded the 10 year time limit of 609(b)).

51 United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir. 1986) (determining that “the trial court’s application of rule

609(b) . . . was proper as Thompson’s trial began within ten years of his release from confinement for his state tax fraud

convictions”).

52 United States v. Cobb, 588 F.2d 607, 612 n.5 (8th Cir. 1978) (finding that the defendant’s prior conviction fell within the 10

year limitation because “his period of confinement apparently ended less than ten years prior to the date of his trial here in

June 1978”).

53 United States v. Portillo, 633 F.2d 1313, 1323 n.6 (9th Cir. 1980) (instructing the district court to make the factual

determination of a prior conviction’s starting point on remand so that it could determine if it was within 10 years of the start

of trial).

54 See e.g., Cohen, 544 F.2d at 784; Cobb, 588 F.2d at 612 n.5.

55 United States v. Watler, 461 F.3d 1005, 1008 (8th Cir. 2006).

56 Id.

57 Id.

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erred by calculating the age of his conviction using the date he was indicted as the endpoint. 58

The Eighth Circuit seems to agree with the defendant because “[m]ost of the cases interpreting

Rule 609” find that “the ten-year time limit should be measured [using the date that the trial

begins].”59 The opinion does not evaluate the reasoning contained in any of the prior cases it cites,

and only one case cited came out of the Eighth Circuit and would arguably be binding. 60

Thankfully, this deference to poorly reasoned and merely persuasive prior caselaw was just dicta

because the defendant testified about his prior conviction on direct examination and, therefore,

could not contest its admission on appeal.61

B. Offense Date

Although it is not as common of an endpoint, the Eighth Circuit has used the date of the

offense that is the subject of the trial where the impeachment evidence is offered.62 Again, United

States v. Foley is an example of a case that picks an endpoint without critically engaging with

609(b) or other case law.63 Without a detailed discussion, the opinion finds that “Foley was

released from this conviction ten years and ten months before the present offense,” and as a result,

concludes that “[609(b)] makes the time period in this case ten years and ten months.”64 It is more

excusable to omit a comprehensive analysis of 609(b) in this instance because the offense date is

the earliest reasonable endpoint a court may use. So, if Foley’s prior conviction was beyond the

10 year time limit when measured in this manner, the conviction would undoubtedly be more

than 10 years old using any alternative (and later) date. However, the Foley court never asserted

that the offense date is the correct endpoint to use when applying 609(b) nor did it clarify whether

it used the offense date merely to illustrate that the choice of which endpoint to use would not

have had an effect on the admissibility of the prior conviction in this case.

A Fifth Circuit dissent also suggested that an offense date endpoint would be “the

appropriate closing date” for measuring convictions under 609(b) if the court were deciding the

case on a “clean slate.”65 Judge Fay did not make this claim based on 609(b)’s text but provided

a policy justification for this endpoint and reasoning based on the rule’s purpose. 66 Like the First

Circuit in Nguyen,67 Judge Fay was concerned about incentivizing a delay in proceedings and

thought that “[a]ny other formula serves to reward the felon for delaying prosecution by any

means possible.”68 Judge Fay also invoked 609(b)’s purpose, arguing that “[i]f prior convictions

Id.

60 Id. at 1008–09.

61 Id. at 1009 (citing Ohler v. United States, 529 U.S. 753, 760 (2000)).

United States v. Foley, 683 F.2d 273, 277 n.5 (8th Cir. 1982). This case fails to acknowledge that the Eighth Circuit used a

different endpoint four years earlier in United States v. Cobb. 588 F.2d 607, 612 n.5 (8th Cir. 1978). Additionally, later Eighth

Circuit opinions that address 609(b)’s endpoint fail to cite or discuss Foley. See Watler, 461 F.3d at 1008; United States v. Griffin,

437 F.3d 767, 769 (8th Cir. 2006).

Foley, 683 F.2d at 277, 277 n.5.

64 Id.

65 United States v. Cathey, 591 F.2d 268, 277 n.2 (5th Cir. 1979) (Fay, J., dissenting). The Fifth Circuit had already created

binding precedent on this issue that required this case to use the start of trial as 609(b)’s endpoint. United States v. Cohen,

544 F.2d 781, 784 (5th Cir.1977).

66 Cathey, 591 F.2d at 277 n.2 (Fay, J., dissenting).

67 United States v. Nguyen, 542 F.3d 275, 281 (1st Cir. 2008).

68 Cathey, 591 F.2d at 277 n.2 (Fay, J., dissenting).

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lose their probative value for impeachment purposes because of ten years of ‘good behavior,’”

we should be measuring the endpoint of 609(b) based on the time period of “unquestioned good

behavior.”69 This proposal builds off of Congress’s proffered reasoning for 609(b): It is not that

a conviction becomes less probative based on age alone; prior convictions lose probative value

when time passes, and there are no intervening bad acts. 70

C. Date of Indictment

Multiple circuits appear to have used the date of indictment as 609(b)’s endpoint but did not

explain their process for doing so nor explicitly hold that the date of indictment is the proper way

to interpret 609(b)’s ambiguous endpoint.71 For example, in United States v. Ras, the Seventh

Circuit simply mentions the March 16, 1982 date of indictment and proceeds to find that the

defendant’s prior conviction, for which he was released from confinement in August 1972, was

within the 10 year time limit of 609(b).72 While the opinion also mentions when the second offense

likely occurred, it does not seem to use the offense date as 609(b)’s endpoint, given that there is

only a date range for the offense.73 In contrast to the seventeen month span when the defendant’s

conduct may have occurred, the day the grand jury returned an indictment is precise.

Although it was not used as an endpoint in the Tenth Circuit, dicta from that court presents

various competing arguments on this matter and suggests that 609(b)’s clock “should be tolled at

indictment in order to discourage dilatory tactics.”74 Again, the desire to avoid unnecessary

scheduling tactics is playing a central role in this debate, but with a different conclusion about

which endpoint best serves that objective.75

D. Avoidance and Other Dicta

Several cases have managed to avoid analyzing 609(b) to determine its endpoint either

because they are bound by precedent or because the case could be decided on other grounds.

These cases still often provide dicta that illuminates the normative discussion of 609(b)’s

endpoint. For example, in United States v. Cathey, the Fifth Circuit was bound by prior circuit

precedent to use the start of trial as the endpoint for measuring the age of a conviction. 76 The

Cathey court acknowledged that precedent and provided a policy-based counterargument in

dicta.77 It suggested that a more logical endpoint may be the date of the witness’s testimony

because the “concern is the [witness’s] credibility when he testifies.”78 Although this may seem

Id.

S. Rep. No 93-1277, at 7061–62 (1974) (discussing impact of the age of a conviction on its probative value for impeachment);

H.R. Rep. No. 93-650, at 7085 (1973) (same).

United States v. Ras, 713 F.2d 311, 318 (7th Cir. 1983); United States v. Lorenzo, 43 F.3d 1303, 1308 (9th Cir. 1995).

72 713 F.2d at 313, 318.

73 Id. at 313.

74 United States v. Jefferson, 925 F.2d 1242, 1256 n.16 (10th Cir. 1991).

75 See United States v. Nguyen, 542 F.3d 275, 281 (1st Cir. 2008) (start of trial did not involve delay tactics); United States v.

Cathey, 591 F.2d 268, 277 n.2 (5th Cir. 1979) (Fay, J., dissenting) (anything other than offense date would incentivize delay).

76 Cathey, 591 F.2d at 274 n.13.

77 Id.

78 Id. While the language in the opinion frames the suggested endpoint as the date the defendant testifies, that is because, in

this case, the impeachment evidence was offered against the defendant. Prior convictions, however, can be offered as

impeachment evidence against any witness, not just a defendant. More broadly applicable language would refer to the date

of the witness’s testimony. The Tenth Circuit has also suggested in dicta that the time of testimony is a viable endpoint for

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like a trivial difference, it may impact whether a prior conviction is more or less than 10 years old

because “in a protracted trial [the start of trial] might be considerably earlier” than when a given

witness takes the stand.79

The Eighth Circuit in United States v. Griffin also managed to defer ruling on 609(b)’s endpoint

after the trial judge sustained a defense objection to the prosecutor’s cross-examination of the

defendant about a prior assault conviction.80 Griffin, the defendant, was released from

confinement for the prior conviction 10 years and one month before the trial but was indicted

within the 10 year period.81 The district court sustained the objection and provided a limiting

instruction to the jury because it ruled that the endpoint of 609(b) is the start of the trial, not the

date of the indictment.82 The Eighth Circuit, on review, found that the unanswered crossexamination questions did not prejudice Griffin. This finding allowed the appellate court to

refrain from evaluating 609(b)’s endpoint.83

Additionally, the Tenth Circuit has avoided this issue after acknowledging 609(b)’s ambiguity

by first concluding that the district court did not abuse its discretion in finding that the probative

value of the prior conviction substantially outweighed its prejudicial effect, so it was admissible

regardless of its age.84 So, starting the admissibility analysis by first conducting the more

stringent balancing test in 609(b) may render the age of the prior conviction moot.

Lastly, the Third Circuit recently used the standard of review to avoid revisiting 609(b)’s

endpoint.85 United States v. Thomas involved prior convictions that would have been within the

10 year limit if measured at the time of the offense date but were beyond the 10 year limit by the

start of trial. The Third Circuit found that the trial court allowing questioning regarding the prior

convictions created harmless error and avoided interpreting 609(b) or opining on its endpoint. 86

IV.

THE PATH FORWARD

609(b)’s ambiguity, the arbitrary results it compels, and the circuit split it produced demand

an amendment to the Federal Rules of Evidence to create uniformity in 609(b)’s application using

the most desirable endpoint from a policy perspective. This section explains why a carefully

crafted amendment is preferable to the status quo and sets forth a proposed amendment to 609(b).

609(b) and used more apt language. Jefferson, 925 F.2d at 1256 n.16 (“[T]en year period should not be tolled until the opponent

testifies because the purpose behind the ten-year limit is to separate those convictions that have a reasonable bearing on

whether the opponent’s testimony can be believed from those that have no reasonable bearing because they are stale.”).

79 Cathey, 591 F.2d at 274 n.13.

80 437 F.3d 767, 769 (8th Cir. 2006).

81 Id.

82 Id.

83 Id.

84 United States v. Jefferson, 925 F.2d 1242, 1256 (10th Cir. 1991).

85 United States v. Thomas, 815 F. App’x 671, 676–78 (3d Cir. 2020).

86 Id. Not every court has used the standard of review to avoid deciding this issue. The Second Circuit, for example, found

that introduction of prior convictions created only harmless error in a case but still, unnecessarily, declared that the defendant

“rightfully point[ed] out” that the convictions were beyond the 10 year limit at the time of trial. United States v. Mahler, 579

F.2d 730, 734 (2d Cir. 1978).

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A. 609(b) Should Be Amended

While 609(b) is subject to multiple interpretations, that alone does not justify an amendment

to the rule. The amendment process is resource intensive, requires judges and lawyers to become

familiar with the new rule, and may create new ambiguity if the new language is not well drafted.

In many instances, that is “too much work for too little payoff.”87 However, on certain occasions,

amendments are justified despite “the transaction costs inherent in rule changes.” 88 Professors

Daniel Capra and Liesa Richter have persuasively argued that “when a conflict [among courts] is

long-standing, shows no signs of being resolved, and creates divergent standards for litigants

operating within the same court system, it is a drafting committee's responsibility to resolve the

impasse.”89

609(b) meets this standard for amendment. This issue has created a longstanding conflict,

given that courts have offered differing opinions across several decades.90 There are no signs of

resolution, with some circuits locked into panel precedent91 and no realistic expectation of en banc

review or that the Supreme Court will settle the circuit split.92 Additionally, federal litigants

across the country face divergent (and in some cases unknown) standards because of the circuit

split and remaining undecided circuits. Thus, an amendment is the appropriate resolution.

Some may argue that setting an endpoint will carry with it negative externalities, like

pretextual scheduling tactics, which make an amendment more trouble than it is worth. That

argument is unpersuasive because any risk of gamesmanship would be limited if 609(b) specified

an endpoint at the date of indictment.93 Most importantly, the minimal risk of gamesmanship

accompanying that endpoint is outweighed by the negative impact of arbitrary rulings, which

are unavoidable when 609(b)’s current ambiguous language controls.

Amending 609(b) to set an endpoint will not strip judges of all their discretion—they will

retain discretion when applying the appropriate standard and balancing the probative value and

prejudicial effect of the prior conviction. An amendment to set an endpoint will simply limit

judicial discretion to when the judge is applying the admissibility standard. The judge will not

also be able to exercise discretion in measuring the age of a conviction, which determines the

standard to apply. When judges exercise their discretion while balancing the probative and

prejudicial value of a prior conviction, they are doing so in a manner specifically afforded to them

by the Federal Rules of Evidence. On the other hand, maintaining discretion in determining

Daniel J. Capra & Jessica Berch, Evidence Circuit Splits, and What to Do About Them, 56 U.C. DAVIS L. REV. 127, 130 (2022).

Daniel J. Capra & Liesa L. Richter, Poetry in Motion: The Federal Rules of Evidence and Forward Progress as an Imperative, 99

B.U. L. REV. 1873, 1878 (2019).

89 Id. at 1886–87 (premising this standard on the assertion that “[i]n the context of damaging and unresolved conflicts, the

benefits of uniformity and fairness outweigh the potential costs of dislocation and unintended consequences”).

90 See, e.g., United States v. Cathey, 591 F.2d 268, 274 n.13 (5th Cir. 1979); United States v. Williams, 892 F.2d 296, 301 (3d Cir.

1989); United States v. Lorenzo, 43 F.3d 1303, 1308 (9th Cir. 1995); United States v. Nguyen, 542 F.3d 275, 280–81 (1st Cir. 2008).

91 See Cathey, 591 F.2d at 274 n.13 (deciding the case based on Fifth Circuit precedent but adding a “caveat” that another

resolution may be more preferable).

92 There is no pending petition for certiorari on this matter and even if one was filed, the Supreme Court “‘rarely grants

certiorari’ in evidence cases.” Capra & Berch, supra note 14, at 551 (quoting Edward R. Becker & Aviva Orenstein, The Federal

Rules of Evidence After Sixteen Years-the Effect of “Plain Meaning” Jurisprudence, the Need for an Advisory Committee on the Rules of

Evidence, and Suggestions for Selective Revision of the Rules, 60 GEO. WASH. L. REV. 857, 911 (1992)).

See discussion infra Part IV.B.

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609(b)’s endpoint lacks such a justification and leaves judges unconstrained by anything internal

to the rule to guide their analysis or ground the explanations for their rulings.

B. The Proposed Amendment

609(b) should be amended to read as follows: “This subdivision (b) applies if, by the date of

indictment in a criminal case or the date of complaint in a civil case, more than 10 years have

passed since the witness’s conviction or release from confinement for it, whichever is later.”

This amendment should be adopted because the date of indictment is the best endpoint for

609(b) from a policy perspective and is the option that best comports with the purpose of the

Federal Rules of Evidence. The purpose of the Federal Rules of Evidence is to ensure that courts

can “administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote

the development of evidence law, to the end of ascertaining the truth and securing a just

determination.”94 To ensure fairness, it is important that any amendment sets the same endpoint

for both plaintiffs and defendants. Setting the endpoint as the date of indictment does this.

Admittedly, so do other proposals like the offense date, arrest date, start of trial, or date the

witness testifies.95 None of these options are necessarily defense-friendly or prosecution-friendly

alternatives because any litigant can use 609(b) to impeach a witness using a prior conviction. 96

So, setting a consistent endpoint will, on the whole, lead to fair outcomes that may favor the

prosecution in some cases and the defendant in others.

A more central concern when setting an endpoint should be avoiding undue delay or

scheduling gamesmanship like pretextual continuances of trial or motion deadlines. Multiple

appellate decisions have raised this point when addressing where to set 609(b)’s endpoint. 97

Setting the endpoint at the date of indictment carries a very minimal risk of gamesmanship. To

begin, defendants are powerless to manipulate the indictment date, so this amendment

immediately limits who can engage in dilatory tactics.

Additionally, the best way to avoid delay tactics from the prosecution is to set the endpoint

as early in the lifecycle of a case as possible because the incentives to manipulate scheduling are

lower when it is unclear if there will even be a trial and, if there is, who will testify and be subject

to impeachment by a prior conviction. At the point of indictment, the odds of a case going to trial

are exceedingly slim—in 2022, only 2.3% of federal criminal defendants went to trial.98 True, the

date of indictment is not the earliest possible endpoint; the date of the offense conduct is earlier,

so one may argue that even using the indictment date rewards delay. 99 However, the date of

FED. R. EVID. 102.

These potential endpoints are the reasonable alternatives that should be considered and have been either used or

suggested by federal courts and additional scholarship.

96 Compare United States v. Griffin, 437 F.3d 767, 769 (8th Cir. 2006) (impeaching a criminal defendant using a prior

conviction) with United States v. Lorenzo, 43 F.3d 1303, 1308 (9th Cir. 1995) (defendant invoking 609(b) to use a prior conviction

against a government witness).

97 See United States v. Nguyen, 542 F.3d 275, 281 (1st Cir. 2008); United States v. Cathey, 591 F.2d 268, 277 n.2 (5th Cir. 1979)

(Fay, J., dissenting).

98 John Gramlich, Fewer than 1% of Federal Criminal Defendants Were Acquitted in 2022, PEW RESEARCH CENTER (June 14, 2023)

https://www.pewresearch.org/short-reads/2023/06/14/fewer-than-1-of-defendants-in-federal-criminal-cases-were-acquittedin-2022/#:~:text=In%20fiscal%20year%202022%2C%20only,were%20found%20guilty%20(1.9%25).

99 Cathey, 591 F.2d at 277 n.2 (Fay, J., dissenting).

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indictment is the earliest viable endpoint because the offense date often cannot easily be

determined, if at all.100 This fatal flaw makes the offense date, the only earlier endpoint, an

unadministrable option.

Not only is it unlikely, at the time of indictment, that a case will involve impeachment with a

prior conviction, but prosecutors also face practical hurdles if they want to adjust when they seek

an indictment. One may argue that if a prosecutor really wanted to ensure they could impeach a

defendant using a prior conviction, they would rush to indict and capture the prior conviction

within the 10 year period. However, prosecutors are constrained by their evidence and the grand

jury process. The grand jury is already an established check on prosecutors’ ability to expedite

indictments because prosecutors cannot get a true bill without first showing probable cause that

the accused person committed a crime.

If prosecutors want to delay getting an indictment to decrease the likelihood that a

government witness’s prior conviction will be admissible, they face significant tradeoffs that

make the prospect of gamesmanship an unattractive decision. Prosecutors with enough evidence

to get an indictment are unlikely to delay going to a grand jury and risk the prospect that the

suspect will either flee or continue to commit crime. The possibility of flight would require

prosecutors and investigators to monitor the suspect and expend resources for a remote possible

benefit. Prosecutors will generally be unwilling to put the public at risk by delaying an

indictment and providing the suspect the opportunity to engage in more criminal activity.

Prosecutors face greater risks from delaying an indictment than the improbable reward of being

able to use a defendant’s prior conviction if the case proceeds to trial.

This proposed amendment includes a separate but analogous endpoint for civil cases because

there will not be an indictment in those cases. While litigants will impeach using prior convictions

more frequently in criminal cases (where the defendant and other witnesses are more likely to

have prior convictions), 609(b) can be used in civil cases as well.101 The filing of a complaint is the

most appropriate civil analog to an indictment and consistency is desirable. Given that 609(b) is

more frequently applicable in criminal cases, the policy implications for criminal cases should be

of greater concern. But, consistency is not the only justification. The same incentives present in

criminal cases counsel setting 609(b)’s endpoint in civil cases at the date of complaint. It is an

early endpoint that does not present a substantial opportunity for gamesmanship and schedule

manipulation. In fact, an even smaller proportion of federal civil cases than federal criminal cases

are resolved at trial. 102

C. Analysis of Alternative Endpoints

Each other potential endpoint for 609(b) will have a comparatively worse impact. Let’s take

a look at each option. To begin, the offense date is a seemingly attractive option because it is even

See infra text accompanying note 104.

Green v. Bock Laundry Mach. Co., 490 U.S. 504, 505–08 (1989) (discussing Rule 609’s applicability to civil, not just

criminal, litigants).

102 Jeffrey Q. Smith & Grant R. MacQueen, Going, Going, But Not Quite Gone: Trials Continue to Decline in Federal and State

Courts. Does it Matter? 101 JUDICATURE 26, 28 (2017) (“[A]pproximately 1 percent of all civil cases filed in federal court are

resolved by trial.”).

100

101

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earlier than the date of indictment.103 Since it occurs so far in advance of a potential trial, a

defendant would be unlikely to shift the timing of their conduct to avoid later impeachment at a

trial that almost certainly will not take place. However, this is not an administrable rule because

the offense date is very often an offense date range. For example, a defendant may be charged

with narcotics offenses with the underlying conduct consisting of sales on multiple days. 104 In

that instance, which date would courts use as 609(b)’s endpoint? Even if one were to propose an

amendment that tied 609(b)’s endpoint to the start of the offense conduct, that would require a

close look at the merits of the case, likely during a Rule 104(a) hearing,105 to conduct the 609(b)

age measurement. Such a process would be a colossal waste of time and resources. The inability

to easily reduce the offense date to a single date dooms its viability as an endpoint for 609(b)—it

would eliminate the current ambiguity but create a new headache by forcing courts to make

robust factual determinations to apply the amended rule.

The arrest date, similar to the offense date, would create new problems if used as the endpoint

for measuring the age of a conviction. First, there is no arrest in a civil case, so any amendment

that implements the arrest date as the endpoint in criminal cases would need to specify a different

endpoint that courts would apply in civil cases. There is no clear analog to an arrest in a civil

case, unlike using the date of a criminal indictment as the endpoint, which is mirrored by a civil

complaint because both are case-initiating documents. Second, using the arrest date as the

endpoint would reward a defendant who delayed his arrest through wrongdoing. However,

courts, effectuating Congress’ purpose, should not reward defendants for wrongdoing by

allowing the 609(b) clock to keep ticking while they evade arrest. 106 Like an amendment to use

the offense date as an endpoint, using the arrest date would occasionally necessitate hearings to

determine factual preliminary questions, in this instance, whether a delay in the arrest resulted

from a defendant’s “voluntary wrongful act.”107 On the other hand, the date of indictment

presents no such externality because it is a fixed point regardless of the length of the defendant’s

alleged conduct or the timing of their arrest.

The start of trial, the most common current option, is an undesirable endpoint for 609(b)

because it is far enough along a case's lifecycle to incentivize dilatory tactics. Once it is clear that

a trial will take place, litigants will have more confidence in their need to manipulate the litigation

schedule to ensure impeachment using a prior conviction will be permitted or to attempt to avoid

such impeachment. While the First Circuit has used the start of trial as an endpoint in a case

Because it is earlier than other suggested endpoints, using the offense date can be a quick and easy way for courts to

dispose of 609(b) challenges when a conviction would be more than 10 years old regardless of the measurement used. See

United States v. Foley, 683 F.2d 273, 277 n.5 (8th Cir. 1982) (10 year and 10 month old conviction using offense date would be

even older using other metrics). However, this reasoning does not apply when then 10 year mark for a prior conviction

straddles different possible endpoints, so it does not justify amending the 609(b) to use the offense date as its endpoint.

104 Examples of multi-day crimes are plentiful. Most conspiracies, fraud, or cases involving repeated conduct are not easily

tied to a single date. See, e.g., United States v. Torres, 529 F. App’x 303, 306 (3d Cir. 2013) (“years-long” narcotics conspiracy);

United States v. Bates, 784 F. App’x 312, 341 (6th Cir. 2019) (“years-long” conspiracy and substantive mail and wire fraud).

105

See FED. R. EVID. 104(a) (requiring courts to “decide any preliminary question about whether . . . evidence is admissible);

FED. R. EVID. 104(a) advisory committee note on proposed rules (“To the extent that these inquiries are factual, the judge acts

as a trier of fact.”).

106 See United States v. Mullins, 562 F.2d 999, 1000 (5th Cir. 1977) (holding that “the defendant's voluntary flight tolled the

ten-year limitation in Rule 609(b)” despite binding circuit precedent that set 609(b)’s endpoint at the start of trial).

107 Id.

103

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where “the government [did not] manipulate[] either the calendar or the scheduling process in

order to postpone the trial and allow the clock to run,” that was a real risk that required a factual

determination by the judge.108 While there may not have been gamesmanship in that specific

case, neither the litigants nor panel argued that using the start of trial, on the whole, avoids

incentivizing delay compared to earlier alternatives. 109 Litigants have various tools at their

disposal before a trial begins to protract proceedings, including additional motion practice, slowrolling discovery, requesting distant deadlines, or requesting adjournments. Given courts’

concern about parties using gamesmanship to conform with 609(b)’s time limit and the ideal of

the Federal Rules of Evidence to promote an efficient judicial process,110 the date of the indictment

is the preferable endpoint. 111

The latest option for 609(b)’s endpoint is at the start of the witness’s testimony. This endpoint

is a poor choice for the same reasons that the start of trial is—as time passes, it becomes more and

more apparent that the prior conviction will actually be used to impeach the witness, so the

parties have a greater incentive to manipulate the trial schedule. Litigants have even more

options to delay proceedings by the time a particular witness testifies. For example, they could

rearrange their witness order or try to prolong the trial. Professors Daniel Capra and Jessica Berch

have advocated for an amendment to 609(b) that would set the endpoint “on the day the witness

first testifies.”112 They reason that this is the most appropriate endpoint because “the concern is

the [witness’s] credibility when he testifies.”113 However, all of the proposed endpoints discussed

in this Essay capture that policy objective. Earlier endpoints, like the date of indictment, still

allow jurors to assess the witness’s credibility when they testify. Additionally, earlier endpoints

also provide a consistent rule for all litigants and allow jurors to assess witness’s credibility at the

moment they are on the stand.

One difference between using the date a witness testifies as the endpoint and other

alternatives is that earlier endpoints allow more convictions to be used for impeachment. Even

if one thinks that effect is cause for concern, it is not a strong reason to oppose earlier endpoints.

The most logical method of addressing concerns about the number of admissible convictions

(whether one thinks it is too many or too few) is to adjust the 10 year time limit as necessary. Any

amendment to 609(b) can address those concerns by simultaneously setting an endpoint and

altering the existing time limit. This approach is preferable because the time limit’s purpose is to

set the bounds of admissibility while the starting point and end point function as tools of

administrability—their purpose should be to facilitate a court’s ability to apply the time limit. If

one is concerned that earlier endpoints will classify too many prior convictions as properly

admissible impeachment evidence, the more appropriate manner of dealing with that is to

shorten the time limit to less than 10 years, as the Advisory Committee and Congress see fit. The

United States v. Nguyen, 542 F.3d 275, 281 (1st Cir. 2008).

Id.

110

FED. R. EVID. 102.

111 United States v. Jefferson, 925 F.2d 1242, 1256 n.16 (10th Cir. 1991) (tolling the 10 year period at the time of indictment is

preferable if the objective is to “discourage dilatory tactics”).

112 Capra & Berch, supra note 14, at 563.

113 Id. (quoting United States v. Cathey, 591 F.2d 268, 274 n.13 (5th Cir. 1979)).

108

109

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remedy should not be to set a later endpoint, thus allowing scheduling tactics to control

evidentiary rulings.

Professors Capra and Berch briefly address the risk of gamesmanship, writing, “[t]he

Advisory Committee Note might comment on the inherent power of the courts to prohibit

gamesmanship, such as strategic attempts to ‘run out the time clock’ by delaying the witness's

testimony.”114 This suggestion is inadequate to deal with a primary concern their proposed

amendment creates. While courts do have inherent power to limit gamesmanship, in practice, it

will prove difficult for courts or opposing counsel to distinguish gamesmanship from proper

scheduling discussions. If litigants have pretextual reasons for a scheduling request, they are

unlikely to admit to them and instead will mask their requests in legitimate logistical concerns.

For example, parties can request more time to produce discovery or file a motion that may have

plausible justifications but may truly be fueled by a desire to work around 609(b). Additionally,

witness orders at trial routinely change for the logistical needs of the witnesses, something that

is rarely closely scrutinized by courts. While judges certainly have the power to limit the

gamesmanship that would result from setting the endpoint at the time the witness testifies,

effectively exercising that power would require some investigating or initial proof that is unlikely

to exist.

CONCLUSION

In its current form, Federal Rule of Evidence 609(b) leaves courts and litigants confused about

its proper application. It is impossible to accurately calculate the age of a prior conviction, often

a determining factor in the conviction’s admissibility, without knowing where to start and where

to end. This ambiguity requires an amendment to the rule, given the arbitrary evidentiary rulings

it has caused, and the circuit split that has gone unresolved for decades with no sign of a

resolution in the future. The most effective amendment to 609(b), which would avoid creating

new problems in administrability or incentivizing inefficiencies, would set the endpoint at the

date of indictment in a criminal case or the date of complaint in a civil case.

114

Id.

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USC-RULES-EV-2025-0034-0004

Kansas Federal Public Defender

www.ks.fd.org

Federal Public Defender

Melody Brannon

First Assistant Federal

Public Defender

Kirk Redmond

Administrative Officer

Staci Reynolds

CJA Resource Counsel

Laura Shaneyfelt

Kansas City Division

500 State Ave, Room 201

Kansas City, Kansas 66101

Tel 913.551.6712

Fax 913.551.6562

Kansas City Attorneys

Branch Chief and

Appellate Chief Dan Hansmeier

Tim Burdick

Kayla Gassmann

Laquisha Ross

Bailey Kennedy

Brian Sutton

Topeka Division

632 SW Van Buren ST, Ste 200

Topeka, Kansas 66603

Tel 785.232.9828

Fax 785.232.9886

Topeka Attorneys

Branch Chief Lydia Krebs Albert

Hunter Lindquist

Wichita Division

301 N Main, Ste 850

Wichita, Kansas 67202

Tel 316.269.6445

Fax 316.269.6175

Wichita Attorneys

Branch Chief Mitch Biebighauser

David Freund

Ellen Bertels

Ellen Albritton

October 10, 2025

Hon. Jesse Furman

Chair, Advisory Committee on the Rules of Evidence

Administrative Office of the United States Courts

One Columbus Circle, NE

Washington, DC 20544

Re: Proposed Amendment to Federal Rule of Evidence 609(a)(1)(B)

Dear Judge Furman,

I write on behalf of the Federal Defender and Community Defender

members of Defender Services Advisory Group (“DSAG”). The

Defender members of DSAG are the only nationally elected group

that represents 4,000-plus attorneys and staff in Federal Defender

and Community Defender Organizations who represent people too

poor to afford their own counsel in federal criminal proceedings.

I write to express the Defenders’ strong support for adding the

word “substantially” to Federal Rule of Evidence 609(a)(1)(B)’s

balancing test. Congress intended this balancing test to offer strong

protections for defendants. This is evidenced by the rule’s

imposition of a more stringent standard for admitting defendantwitnesses’ convictions than those of other witnesses. 1 Rule 609’s

legislative history also confirms Congress’s intent to protect

defendants. The heightened balancing test for defendant-witnesses

“was generated by a concern about the ‘deterrent effect’ of prior

conviction impeachment ‘upon an accused who might wish to

testify.’” 2

1 A court must admit a non-defendant witness’s conviction under Rule 609(a)

unless its prejudicial effect “substantially” outweighs its probative value. Fed. R.

Evid. 609(a)(1)(A). In contrast, a court is to admit a defendant-witness’s conviction

only if its probative value outweighs its prejudicial effect. Fed. R. Evid. 609(a)(1)(B).

2 Memorandum from Daniel J. Capra, Reporter, to Advisory Committee on Evidence

Rules, at 3 (Oct. 1, 2024), available at https://www.uscourts.gov/sites/default/files/202411_evidence_rules_committee_meeting_agenda_book_final_10-24.pdf.

But the rule as currently written and applied is failing to realize this intent. To

restore Congress’s intent and to protect defendants’ rights, the word “substantially”

must be added to Rule 609(a)(1)(B)’s balancing test. This Committee’s intervention

by way of this modest amendment is warranted for at least five reasons. First, this

Committee must amend the rule to address the judicial misapplication of the test,

which is due in part to the appellate courts’ standards of reviewing Rule 609 issues

and evidence issues more broadly. Second, the rule as it stands now contributes to

the unacceptable racial disparities present in our current criminal justice system.

Third, the prevailing application of the test violates defendants’ constitutional

rights by chilling the right to testify, continuing to the “trial penalty,” and eroding

the presumption of innocence. Fourth, social science does not support that

impeachment by prior convictions relating to truthfulness contributes to the truthseeking goal it seeks to serve. Fifth, this amendment would make Rule 609

internally and externally consistent.

The amendment is necessary to address the misapplication of Rule

609(a)(1).

Though Congress intended Rule 609(a)(1)(B)’s balancing test to protect defendants,

judges’ routine misapplication of the test fails to fulfill this intent. Courts often, for

example, misinterpret the rule as favoring broad admissibility of a defendant’s nondishonesty conviction. 3 Moreover, judges frequently fail to consider the compounded

prejudice of admitting multiple convictions. 4 In one case, for example, a federal

judge admitted all of the defendant’s thirteen prior, unrelated convictions in a

kidnapping trial. 5

Erroneous rulings of this type are unlikely to ever be corrected by the Circuit Court

of Appeals through the appellate process, for at least three reasons. First, the

Circuits contribute to the misapplication of Rule 609’s balancing test by essentially

flipping the test on its head and creating a presumption of admissibility that the

defense must overcome. 6 This could be because appellate courts more commonly

3 Id. at 7.

4 Id. at 8.

5 Id.

6 Jeffrey Bellin, Circumventing Congress: How the Federal Courts Opened the Door to

Impeaching Criminal Defendants with Prior Convictions, 42 U.C. Davis L. Rev. 289, 333–34

(2008) (“At both the trial and appellate level, the Mahone framework is now better

understood as a means of justifying the admission of impeachment, rather than as a

mechanism for determining whether that impeachment is proper in the first place. This is

one of the more surprising aspects of the federal courts’ failure to faithfully implement the

congressional policy directive embodied in Rule 609.”); see also United States v. Thomas,

815 F. App’x 671, 678 (3d Cir. 2020) (unpublished decision) (noting the defendant was

“apparently undeterred by the Court’s [potentially erroneous] decision to admit evidence of

his convictions” and exercised his right to testify) (emphasis added).

review admission of evidence under Rule 403, under which the courts may exclude

relevant evidence if its probative value if substantially outweighed by unfair

prejudice, among other reasons. 7 Also at play is the deferential abuse of discretion

standard, as addressed more below. Thus, the Circuits contribute to misapplication

of Rule 609(a)(1)(B) by treating the balancing test as one of endorsing admissibility

unless the prejudice outweighs the probative value, rather than allowing

admissibility only if the probative value outweighs the prejudice. And given how few

cases the Supreme Court accepts each year, 8 it is unlikely the Supreme Court will

correct the issue.

Second, there are serious preservation problems for defendants as to impeachment

by prior conviction. The Supreme Court has clarified that to raise and preserve a

claim for review of improper impeachment with a prior conviction under Rule 609 a

defendant must testify. 9 Therefore, to preserve the erroneous admission of their

highly prejudicial prior convictions, defendants must prejudice themselves before

the jury hoping an appellate court years later will grant a new trial if he is

convicted. The preservation requirement is a great impediment to a defendant’s

knowing and voluntary exercise or waiver of the right to testify. 10

This leads into the third problem inhibiting appellate review of erroneous

admissions of prejudicial prior convictions. Even in the rare case where the

defendant makes the risky decision of testifying to preserve the error, appellate

review of evidentiary rulings is for abuse of discretion and extremely deferential. 11

7 Fed. R. Evid. 403.

8 The Supreme Court receives approximately 7,000-8,000 petitions for a writ of

certiorari each term, but only grants review in about 80 cases, resulting in a less than 1%

review rate. See Supreme Court of the United States, Frequently Asked Questions, General

Information,

https://www.supremecourt.gov/about/faq_general.aspx#:~:text=The%20Court%20receives%

20approximately%207%2C000,argument%20in%20about%2080%20cases (last accessed

Aug. 20, 2025).

9 Luce v. United States, 469 U.S. 38 (1984) (noting that under Rule 609 a defendant

must testify to preserve improper impeachment with a prior conviction claim for appeal).

10 Godinez v. Moran, 509 U.S. 389, 400 (1993) (recognizing waiver of constitutional

rights should be “knowing and voluntary”); Rock v. Arkansas, 483 U.S. 44, 51 (1987) (the

right to testify on one’s behalf “has sources in several provisions of the Constitution”).

11 See, e.g., United States v. Gresham, 118 F.3d 258, 266 (5th Cir. 1997) (holding the

abuse of discretion review for evidence rulings is “highly deferential”); United States v.

Guzman-Cordoba, 988 F.3d 391, 399 (7th Cir. 2021) (recognizing the appellate court gives

“special deference to evidentiary rulings” and finds an abuse of discretion “only when ‘no

reasonable person could take the view adopted by the trial court.’”); United States v. Rojas,

826 F.3d 1126, 1130 (8th Cir. 2016) (appellate court gives “substantial deference to the

district court’s” evidence rulings); United States v. Garcia, 635 F.3d 472, 476 (10th Cir.

2011) (“A district court abuses its discretion only if its ruling is ‘arbitrary, capricious,

whimsical or manifestly unreasonable or when we are convinced that the district court

And even if the appellate courts find error, in the Defenders’ experience the

appellate courts are most likely to deem evidentiary errors harmless, including Rule

609(a) errors. 12 The non-constitutional harmless error analysis applies even though

the defendant’s constitutional right to testify is implicated. 13 Amending the rule is

therefore necessary to both correct judicial misapplications of the current test and

give defendants a fair opportunity to testify before the jury that will decide their

fate without highly prejudicial and minimally probative impeachment, as Congress

intended.

III.

The current rule contributes to the racial disparities present in our

criminal justice system.

Critically, Rule 609(a)(1)(B)’s impeachment rule disproportionately affects

defendants of color. The Rule itself “is a continuation of policies that barred

witnesses from testifying in courtrooms in the United States based on racism,

sexism, classism, and other forms of bigotry.” 14 And data shows that the

impeachment by prior conviction rule is much more likely to be applied to

defendants of color, especially Black men.

made a clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.’”); United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (abuse of

discretion standard “requires that we not reverse an evidentiary decision of a district court

‘unless the ruling is manifestly erroneous,’” because district court has “considerable

leeway”).

12 See, e.g., United States v. Glenn, 667 F.2d 1269, 1273–74 (9th Cir. 1982) (“Although

knowledge of Glenn’s prior convictions may have had some effect on the jury's deliberations,

we conclude that the error was more probably than not harmless.”); see also United States

v. Collins, 799 F.3d 554, 572 (6th Cir. 2015) (“while Collins’ prior conviction may have been

inadmissible under a Rule 609(b) analysis, in light of the overwhelming testimony against

Collins and the limited prejudicial impact of the conviction, the district court’s error in

applying a Rule 403 analysis and admitting the conviction into evidence was harmless.”);

see generally Rojas, 826 F.3d at 1131 (noting the court reverses based on erroneous

evidentiary rulings “only if an error ‘affects the substantial rights of the defendant’ or has

‘more than a slight influence on the [jury’s] verdict.’”).

13 Compare United States v. Baker, 58 F.4th 1109, 1122 (9th Cir. 2023) (constitutional

harmless error standard requires the government to prove “beyond a reasonable doubt that

the error did not contribute to the conviction.”), with United States v. Torres, 794 F.3d 1053,

1063 (9th Cir. 2015) (non-constitutional harmless error standard require a “‘fair assurance’”

of harmlessness or “‘it is more probable than not that the error did not materially affect the

verdict’”).

14 Letter from The Coalition for Prior Conviction Impeachment Reform to The Advisory

Committee Members, at 3 (Apr. 11, 2024), available at

https://www.uscourts.gov/sites/default/files/202411_evidence_rules_committee_meeting_agenda_book_final_10-24.pdf; see also generally

Montré D. Carodine, “The Mis-Characterization of the Negro”: A Race Critique of the Prior

Conviction Impeachment Rule, 84 Ind. L.J. 521 (2009).

Racial minorities are far more likely, “due to systemic biases and overpolicing in

marginalized communities,” to possess a criminal record. 15 For example, while only

8% of all adults have a felony conviction, an astonishing 33% percent of Black men

have such a conviction. 16 This racial disparity is also reflected in our incarceration

rates. Black people comprise 12% of the adult population yet make up 34% of the

nation’s prison population. 17 But the opposite trend is seen with White people—

while White people make up 62% of the adult population, they represent only 32%

of the prison population. 18

“Racially-skewed conviction rates combined with the American legal system’s

insistence that prior convictions are credibility markers means that White

Americans receive a credibility boost in the courtroom while other groups face a

disproportionate risk of being impeached with prior convictions.” 19 The

overrepresentation of people of color within the nation’s criminal justice system,

coupled with the harsh realities of Rule 609, create a system in which juries are

more willing to convict minorities and where minorities are more likely to not

testify or to accept a plea deal in lieu of going to trial. 20

While much more work is needed to be done by us all, amending Rule 609 as

proposed would make one step towards “blunt[ing] the effect of those implicit

[racial] biases,” curbing “the cycle of discrimination,” and pushing back against

“systemic racial inequality” entrenched in the American legal system. 21 This

Committee’s action is needed.

15 Letter from National Association of Criminal Defense Lawyers to Members of

the Advisory Committee on Evidence Rules, at 139 (June 18, 2024), available at

https://www.uscourts.gov/sites/default/files/202411_evidence_rules_committee_meeting_agenda_book_final_10-24.pdf (“NACDL

Letter”).

16 Anna Roberts & Julia Simon-Kerr, Prior Conviction Impeachment: The Need

for Reform, at 12, available at https://www.nacdl.org/getattachment/0d5adfae-e9f340b2-9d9f-a54ee9268703/nacdl-prior-conviction-impeachment-reform-report.pdf

(“Roberts & Simon-Kerr Report”).

17 Id.

18 Id.

19 Id.

20 Id. at 13-15.

21 NACDL Letter, at 139.

II.

The amendment would partially lessen constitutional concerns that

Rule 609 creates.

The rules of evidence should not place constitutional rights in tension with one

another. 22 However, the rule as currently written and applied causes such tension

in at least three ways.

First, the rule infringes on an accused’s right to testify on his own behalf.

Defendants who desire to take the stand often change their minds when confronted

with the possibility that the government may use their prior convictions against

them. 23 Unsurprisingly, defendants without criminal records testify more

frequently than do those with criminal records. 24 This disincentive for testifying not

only silences defendants but also “deprives the jury of critical accounts” and

“undercuts the fairness of the trial process.” 25

Second, Rule 609 as written and applied exacerbates the “trial penalty.” 26 The trial

penalty refers to the longer sentences received by defendants who exercise their

constitutional right to trial as compared to defendants who plead guilty. 27 Because

of “the strongly prejudicial effect of a jury hearing about a defendant’s prior

conviction,” many defendants are “coerced to plead guilty rather than [go] to trial.” 28

And given the statistics on race and the criminal justice system provided above, it is

unfortunately no surprise that the trial tax disproportionally affects people of

color. 29

22 See, e.g., Simmons v. United States, 390 U.S. 377, 394 (1968) (holding, in the context

of a person pursuing a Fourth Amendment challenge and maintaining their right to remain

silent, “we find it intolerable that one constitutional right should have to be surrendered in

order to assert another”).

23 Jeffrey Bellin, The Silence Penalty, 103 Iowa L. Rev. 395, 432–33 (2018).

24 John H. Blume, The Dilemma of the Criminal Defendant with a Prior Record—

Lessons from the Wrongfully Convicted, 5 J. Empirical Legal Studies 477, 489

(2008).

25 NACDL Letter, at 139.

26 Id.

27 Martin Sabelli, From the President: Legalized Coercion and Mass Incarceration: Why

the Trial Penalty Does Greater Violence to People of Color and the Poor, The Champion,

(Sept,/Oct. 2021) (describing the trial tax as the “profoundly and unconscionably coercive

difference between a pretrial settlement offer and a post-trial sentence”), available at

https://nacdl.medium.com/from-the-president-legalized-coercion-and-mass-incarcerationwhy-the-trial-penalty-does-greater-3c424c44fbdb.

28 NACDL Letter, at 139.

29 See Rick Jones and Cornelius Cornelssen, Coerced Consent: Plea Bargaining, The

Trial Penalty, And American Racism, 31 Fed. Sent. R. 265, 265, 2019 WL 2453392 (Vera

Inst. Just. April/June 2019).

Third, admitting defendants’ prior convictions erodes the presumption of innocence.

Despite their best efforts, jurors tend to believe that defendants with prior

convictions are more likely to be guilty. One study for example, found that even in

factually identical cases jurors were more likely to convict a defendant if they knew

he had a criminal history. 30 The erroneous admission of even one prior conviction is

therefore an issue of critical concern for the fundamental fairness of criminal trials.

But as addressed above, these errors commonly go uncorrected, leaving

questionable convictions and resulting sentences of imprisonment in place.

IV.

Empirically and practically, prior convictions do not bear on

truthfulness.

Additionally, there is no established correlation between prior convictions and a

defendant’s character for truthfulness or lack thereof. Social science fails to support

the idea that a person possesses a character for truthfulness or untruthfulness. 31

Rather than a fixed character trait, honesty is a situation-based behavior. 32 Thus,

the empirical basis for Rule 609 as a whole is lacking, as academics have explained

to this Committee. 33

Indeed, prior convictions shed little light even on a defendant’s past conduct, let

alone truthfulness. Defendants often accept plea bargains to crimes with no

connection to the crime for which they were originally charged. 34 A defendant

charged with a sex offense, for example, may accept a plea bargain to an unrelated

offense to avoid sex offender registration. 35 So besides a lack of empirical basis

supporting that prior convictions relate to truthfulness, the prior conviction itself

may not even coincide with the defendant’s prior actions.

The amendment would create consistency within the rules.

The proposed amendment would additionally increase consistency within the Rules.

For example, another subsection of Rule 609 already uses the proposed

“substantial” balancing test. Subsection 609(b) states that a stale conviction may

30 Theodore Eisenberg and Valerie P. Hans, Taking a Stand on Taking the

Stand: The Effect of a Prior Criminal Record on the Decision to Testify and on Trial

Outcomes, 94 Cornell L. Rev. 1353, 1361 (2009).

31 Roberts & Simon-Kerr Report, at 12.

32 Id.

33 See generally Jeffrey Bellin, Eliminating Rule 609 to Provide a Fair Opportunity to

Defend Against Criminal Charges—A Proposal to the Advisory Committee on the Federal

Rules of Evidence (2023), at 14–27, available at

https://www.uscourts.gov/sites/default/files/2023-10_evidence_rules_agenda_book_final_105.pdf.

34 Roberts & Simon-Kerr Report, at 12.

35 Thea Johnson, Fictional Pleas, 94 Ind. L.J. 855, 856–57 (2019).

only be admitted after proper notice if “its probative value, supported by specific

facts and circumstances, substantially outweighs its prejudicial effect.” 36 Adopting

the same balancing test for stale convictions as for non-dishonesty prior convictions

makes sense.

Rule 703 is another example. Under Rule 703, an expert may share information

that would otherwise be inadmissible only if the information’s probative value

“substantially” outweighs its prejudicial effect. 37

Finally, adopting a more robust balancing test in Rule 609(a)(1(B) will alleviate

tension between the propensity rules and the impeachment by prior conviction

rules. As this Committee is aware, a defendant’s non-dishonesty convictions are

typically otherwise inadmissible for propensity purposes under Rule 404(b)(1).

Thus, ensuring that when a defendant exercises their right to testify on their own

behalf, the government will not be able to circumvent the propensity rules by

impeaching with a prejudicial, yet minimally probative prior conviction, upholds the

uniform application, overall goals, and consistency of the Rules.

***

The proposed amendment to Rule 609 is a small but meaningful step towards

addressing the constitutional, racial, and empirical issues identified above and in

prior submissions to this Committee by numerous stakeholders. As eloquently

stated by a member of this Committee, “any miscarriage of justice with respect to a

defendant’s right to testify should not be tolerated” and “even the Department of

Justice should be fine with the addition of the single word.” 38 For these reasons, the

Committee should amend Rule 609(a)(1)(B)’s balancing test to include the word

“substantially.”

On behalf of the Federal and Community Defenders of DSAG,

s/Melody Brannon

Melody Brannon

DSAG Defender Co-Chair

Federal Public Defender

District of Kansas

36 Fed. R. Evid. 609(b)(1) (emphasis added).

37 Fed. R. Evid. 703.

38 Minutes of Meeting, Advisory Committee on Evidence Rules, at 5 (Nov. 8, 2024),

available at https://www.uscourts.gov/sites/default/files/document/202505_evidence_rules_committee_agenda_book_final.pdf.

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Comment from Griffing, Aspen

Posted by the United States Courts on Nov 17, 2025

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Comment

As for rule 707, the rule should be adopted in it's entirety, so long as the committee adds more guidance on

what "simple scientific instruments" are. This term seems too ambiguous to hold substantial meaning

without litigation, which, as the Committee notes, is difficult to do. In the Committee's notes, they give

examples that would clarify the rule, but putting them in the rule directly, or making a test to determine

between simple and complex instruments, would avoid unnecessary litigation.

Comment ID

USC-RULES-EV-2025-0034-0005

Tracking Number

mhn-rxd3-3zur

Give Feedback

The edits to rule 609 should be adopted in part. Adding the necessity of evidence under 609(a)(1)(b) to be

substantially more probative than prejudicial provides a much needed safeguard on defendants rights,

particularly to balance out the lack of judicial discretion in its admittance. However, the rule should calculate

the time frame under 609(b) to extend to the date the defendant offers testimony. The policy behind the rule

is to ensure one is not unduly prejudiced by mistakes of their past, and to allow someone to regain the

inherent trustworthiness of any other witness should they stay out of trouble. As such, the rule should focus

on the time the trustworthiness of the defendant is called into question. Further, using the date a trial starts

may lead to prosecutors bringing a case before they have had the time to fully investigate it. While it could

be said defense attorneys may do the same to push the trial back, they have less power in setting a trial

date, and the result of it is less prejudicial to the trial, leading only to a need to give notice of the evidence

as opposed to potential needless prosecution.

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Comment from Juarez, Maria

Posted by the United States Courts on Nov 17, 2025

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Comment

The Judicial Conference is proposing updates to the Federal Rules of Evidence to reflect modern legal

practices and technological advancements. The key changes that are mentioned include clarifying the

admissibility of digital evidence, refining hearsay exceptions, and updating standards for expert testimony.

The objective of these amendments is so that there is fairness in federal court proceedings and to also

improve consistency throughout these proceedings.

Give Feedback

I support the proposed amendments because they address critical gaps in how courts handle digital and

expert evidence. As technology continues to shape the legal landscape, it's essential that evidentiary rules

evolve to ensure reliable outcomes. The revisions to hearsay exceptions and expert testimony standards

will help judges and juries better assess the credibility and relevance of complex evidence. These updates

will improve a lot towards modernizing the justice system while preserving its principle.

Comment ID

USC-RULES-EV-2025-0034-0006

Tracking Number

mhu-8zp1-fn5t

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Comment from Randazzo, Jessie

Posted by the United States Courts on Dec 1, 2025

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I support the effort to add Evidence Rule 707 because it offers much needed structure for admitting

machine-generated evidence at a time when courts face rapidly evolving technologies such as AI systems,

automated sensors, digital logs, and algorithmic outputs. The draft rule provides a coherent framework by

requiring proponents to show reliability through factors tailored to machine processes, which avoids forcing

courts to stretch existing Rules 401, 403, and 702 beyond their intended scope. I encourage the Committee

to continue clarifying how Rule 707 interacts with expert-testimony requirements, since some machinegenerated outputs may blur the line between raw data and algorithmic inference, raising concerns about

opacity and the risk of unintentional “expert” substitution. It would also be helpful for the Committee to

address how courts should treat proprietary or non-disclosable systems when defendants or civil litigants

lack access to underlying code or training data, because meaningful adversarial testing depends on

transparency. Overall, formalizing a rule specific to machine-generated evidence is an important step in

promoting consistency, reducing litigation uncertainty, and safeguarding due process as automated systems

become routine in both civil and criminal cases.

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USC-RULES-EV-2025-0034-0007

Tracking Number

mid-wlwb-23q9

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Comment from Brown, Leah

Posted by the United States Courts on Dec 1, 2025

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Comment

I support the Committee's proposed amendment to Rule 609(a)(1)(B) because the new standard requires

that the probative value of a conviction substantially outweigh its prejudicial impact, which better safeguards

a defendant's right to testify. The purpose of Rule 609 has always been to balance fair impeachment with a

defendant's right to take the stand. This right is not just a legal formality, but a fundamental aspect of our

justice system. However, courts often admit prior convictions that are only tangentially related to

truthfulness, creating a significant risk of unfair prejudice.

Additionally, I agree with the proposed clarification to Rule 609(b) concerning older convictions. The lack of

clarity regarding the ten years creates unnecessary uncertainty for both defendants and their attorneys.

Together, these revisions promote consistency, fairness, and transparency. Most importantly, they uphold

the broader goals of the criminal justice system by ensuring that defendants feel empowered to testify

without being unfairly burdened by convictions that do not accurately reflect their honesty. This allows jurors

to hear their complete account and assess the evidence with an open and fair mindset.

In conclusion, I fully support both amendments to the Federal Rules of Criminal Procedure, which I believe

will bring a positive change to our justice system.

Give Feedback

This concern discourages defendants from sharing their side of the story, even when their testimony is

crucial for a fair trial. The need for a fair trial is not just a legal requirement, but a moral imperative. Since a

defendant must testify to preserve any appeal regarding a Rule 609 ruling, many incorrect decisions go

unchallenged. Therefore, strengthening the balancing test is necessary to ensure that impeachment serves

its intended purpose rather than silencing a defendant's voice.

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USC-RULES-EV-2025-0034-0008

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Nov 20, 2025

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Comment from Kajtazovic, Diana

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Give Feedback

I oppose the adoption of rule 707, not because I don't think AI generated evidence shouldn't be regulated,

but because I don't think rule 707 does enough to address the concerns of AI generated information. It is a

well-known issue that much of the data and testing that AI is developed with suffers from biases, racial,

stereotypical and otherwise concerning biases. I agree that technology is advancing and we can't stop the

onslaught that is coming to the courts, but I think if we are to regulate AI generated evidence it needs to be

done right, and it needs to be a requirement that an expert testify to the software before it gets introduced

into evidence. Expert testimony as to the original data subset used, frequency of errors, and common trends

in the software's output needs to be tracked and explained before it can be admitted, which I believe does

beyond the scope of 702 (b), (c).There needs to be a more restrictive framework for the analysis of ai

generated evidence, and it needs to be addressed sooner rather than later while working out the kinks of

admitting ai evidence.

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USC-RULES-EV-2025-0034-0009

Tracking Number

mio-nqn4-7fsm

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Posted by the United States Courts on Dec 10, 2025

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Comment

I support the intention behind Rule 609. However, the term "substantially" must be better defined for the rule

to have the intended effect. Due to the racial bias that exists within the criminal system, the clarity of this

term is imperative. Black individuals are significantly more likely to be charged with felonies within the

criminal system. Without further defining "substantially", these impacted individuals may still face bias within

the court system as witnesses. I do believe that with such clarification, Rule 609 will not produce the desired

outcome.

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I also support the intention that supports Rule 707. However, the term "simple scientific instruments" leaves

a lot of room for interpretation. There is substantial crossover between machine-generation and other forms

of scientific instrumentation. The rule as written may impact algorithmic or arithmetic based instruments that

are not central to the issue of machine-generated evidence. The term "simple" is also too vague and

requires further defining to produce the intended outcome.

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Comment from Schultz, Elizabeth

Posted by the United States Courts on Dec 16, 2025

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Comment

I am submitting this public comment in support of the two proposed amendments to Federal Rule of

Evidence 609, because I believe these changes will promote a fairer and more consistent application of the

FRE 609 evidentiary standard.

The current FRE 609(a)(1)(B) standard permits the admission of highly sensitive prior conviction evidence if

the probative value merely outweighs the prejudicial effect, which is an inexplicably lower standard than the

one applied elsewhere in FRE 609(b) and in FRE 703. Because jurors may place disproportionate weight

on prior convictions, even when introduced for impeachment purposes, the danger of unfair prejudice is

particularly acute in the criminal context where a defendant’s constitutional right to a fair trial must be

protected. In criminal matters, fears of prejudicial prior conviction evidence being admitted against the

defendant may significantly deter them from testifying in their own defense.

By adopting the heightened balancing standard proposed by this amendment, the FRE609(a)(1)(B)

standard becomes more consistent with the rest of the Rules, and highly inflammatory prior conviction

evidence is only admitted when the judge determines that it has genuine, substantial probative value. This

change will encourage more careful judicial analysis and promote fairer trial outcomes for defendants.

The proposed amendment to Rule 609(b) clarifies the endpoint measurement on the ten-year time period

for evaluating the staleness of a prior conviction. According to this amendment, the age of a conviction will

be measured from the witness’s conviction date or the date of their release from confinement (whichever is

later) to the date the trial begins. This clarification is a welcome improvement, because the current language

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The proposed amendment to Rule 609(a)(1)(B) would require that, in criminal cases where the witness is

the defendant, evidence of a qualifying prior conviction be admitted only if its probative value substantially

outweighs its prejudicial effect. The addition of the word “substantially” is necessary because it gives more

appropriate weight to the stakes involved when a defendant testifies in a criminal case, and it removes

existing inconsistency within the Rules.

of the rule currently includes the start date, but no endpoint for how courts should measure a conviction’s

age.

In the face of this existing ambiguity, courts have struggled with inconsistent interpretations of the language,

leading to uneven application across jurisdictions. By explicitly defining the relevant time frame and

anchoring it to the trial date, which is a clear and unambiguous endpoint, the amendment promotes

uniformity and predictability in the measurement application.

Overall, the two proposed Rule 609 amendments advance fairness, clarity, and consistency in evidentiary

practice. They address ambiguity, inconsistency, and reduce the risk of unfair prejudice to criminal

defendants. I respectfully urge the Committee to adopt the proposed amendments as drafted. Thank you for

considering my comment.

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Comment

This comment addresses proposed Federal Rule of Evidence 707 (Machine-Generated Evidence).

The attached submission supports the rule’s objective and proposes a narrow, administrable clarification for

the Committee Note: a two-step reliability framework under which courts first assess the integrity of the

underlying record (completeness, tamper-evidence, provenance sufficient for adversarial testing) before

evaluating inference validity under Rule 702(a)–(d).

The comment does not propose new authentication doctrine or discovery obligations. Rather, it explains why

Rule 702(b) and (d) cannot be meaningfully applied to machine-generated output unless record integrity is

established as a predicate, and offers technology-neutral factors courts may consider to make Rule 707

workable in practice.

[ Attachments 1

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Comment on Proposed Federal Rule of

Evidence 707 (Machine-Generated Evidence)

Submitted by: Joseph Zaki (individual technical commenter)

Topic: Committee Note clarification to make Rule 707 administrable in practice

1. Executive summary

I support proposed Federal Rule of Evidence 707 and its goal: ensuring that machine-generated

outputs offered without an expert witness are subject to the reliability protections of Rule

702(a)-(d), rather than admitted through a procedural loophole. The Committee Note correctly

recognizes that authenticity mechanisms, including Rule 902(13), do not establish reliability.

This comment proposes one narrow, high-impact improvement: an explicit “two-step” framing for

courts applying Rule 702 through Rule 707.

Step 1: Integrity of the record. The court must be able to determine that the inputs,

transformations, and outputs are complete, untampered, and traceable in a way an independent

verifier can check.

Step 2: Validity of the inference. Only after Step 1 is satisfied does it become meaningful to

assess the inference itself under Rule 702, including fit, testing, error rates, and validation.

This framing is not a rewrite of the rule text. It is a proposed clarification for the Committee Note

so judges can administer Rule 707 without being forced into abstract model debates when the

underlying record is not custody-grade.

2. Why Step 1 is necessary for Rule 707 to function as intended

Rule 707 incorporates Rule 702 standards when machine output is offered without a human

expert. In practice, reliability disputes will often collapse into an unresolvable posture if the

proponent cannot establish the integrity of the record that produced the output.

The Committee Note already anticipates this reality. It highlights that machine-generated

evidence may be unreliable in ways that are “buried” in the program and difficult to detect, and

that cross-examination is not available for a machine. The same logic applies to the record

layer: if the opposing party cannot independently test whether the underlying inputs were

altered, incomplete, or selectively exported, then Rule 702’s reliability inquiry becomes a contest

of assertions rather than evidence.

A workable Rule 707 practice requires an administrable threshold concept: whether the

proponent has supplied sufficient integrity and provenance information to enable adversarial

testing.

This comment does not propose a new authentication or chain-of-custody requirement, and it

does not modify Rules 901–903. The point is narrower: where Rule 707 applies Rule 702 to

machine output, the court cannot meaningfully evaluate Rule 702(b) (“sufficient facts or data”) or

Rule 702(d) (reliable application to the facts of the case) unless the proponent supplies a record

that is complete and tamper-evident enough to permit adversarial testing.

3. The two-step reliability framework

Step 1: Integrity of the record (custody-grade).

The threshold question is whether the court and the opposing party can determine what exactly

the system processed and whether that record has been altered or selectively presented. This is

a separate question from whether the system’s inference is valid.

A technology-neutral integrity showing can be supported through objective mechanisms that are

well understood in digital evidence practice and can be implemented across vendors and

domains. Examples include:

● Deterministic segmentation of time-series inputs so that the boundaries of “what was

processed” are stable and reviewable (for example, fixed windows or deterministic event

rules).

● Capture-time sealing or equivalent mechanisms that bind cryptographic digests to the

data at the point of capture or capture-path processing.

● Chain continuity capable of detecting missing, reordered, or inserted segments.

● Manifest-level integrity protection so a verifier can detect tamper or partial export.

● Independent verification tooling or procedures that allow third parties to validate a

package without relying on vendor services.

Nothing in these integrity examples is intended to impose a general disclosure regime or to

require exposure of proprietary implementation details. They describe the kinds of case-specific,

minimum evidentiary artifacts and verification hooks that may be necessary for the proponent to

carry its burden under Rule 702 when the output is offered under Rule 707.

This is consistent with an evidence architecture principle: the “minimal structure” needed so an

independent verifier can reconstruct and check what happened.

Step 2: Validity of the inference (Rule 702-grade).

Once integrity is established, the court can evaluate the inference itself using Rule 702(a)-(d),

consistent with the Committee Note’s focus on inputs and validation.

A technology-neutral inference-validity showing can include:

● Model identity and versioning (for example, immutable model references or hashes)

so the output is not a moving target.

● Execution context identity (runtime environment identifiers) because materially

different environments can produce materially different results.

● Input binding to connect any inference artifact back to exact input segments and

timestamps.

● Parameter disclosure for inference-time settings relevant to determinism and meaning.

● Reproducibility mode or a non-determinism statement, so the court can understand

whether repeated runs should match and why not.

4. Why this is administrable for judges

The purpose of Rule 707 is not to force judges to become machine learning experts. It is to

prevent reliability evasion and provide a structure for admissibility decisions.

The two-step framework helps the court by:

● Allowing early resolution of cases where the proponent cannot establish integrity (Step

1), without litigating model theory.

● Narrowing the issues for Rule 702 reliability analysis (Step 2) to the inference itself, once

the record is stable.

● Encouraging predictable litigation conduct, including the Committee Note’s statement

that notice principles applicable to expert opinions should also apply to machine output

offered under the rule.

5. Concrete illustration (hypothetical)

A party offers machine output stating that a specific person or license plate appears in a video at

a specific time interval. The output is introduced through a technician who operated the system

but cannot explain model or training reliability, and the output is accompanied by a certification

of authenticity, without a testifying expert.

Because the output asserts identity, the reliability inquiry cannot be reduced to authenticity of

the file or operation of the device.

● If the opposing party challenges whether the underlying video was truncated,

re-encoded, selectively exported, or otherwise altered, the court cannot meaningfully

evaluate the inference unless it first resolves whether the input record is complete and

tamper-evident.

● Step 1 focuses on objective integrity checks: whether missing segments or reordering

would be detectable, whether there is a tamper-evident manifest tying outputs to specific

inputs, and whether an independent verifier can validate completeness and provenance.

● Step 2 then evaluates inference validity under Rule 702: identification of the

model/system version, material configuration and parameters, whether the process was

validated in sufficiently similar circumstances, and whether the proponent can explain

relevant sources of non-determinism affecting reliability.

This sequencing avoids turning reliability into a narrative contest.

6. Proposed Committee Note addition (suggested text)

I respectfully suggest adding a short paragraph to the Committee Note for Rule 707, along

these lines:

In applying Rule 702(a)-(d) to machine-generated evidence under Rule 707, courts may

consider threshold integrity factors necessary for meaningful adversarial testing. Such factors

may include whether the proponent can provide tamper-evident records sufficient to detect

missing or altered inputs; identify the system, model version, and execution context that

generated the output; and permit independent verification of completeness and provenance. If

such integrity conditions are not satisfied, evaluation of inference validity under Rule 702 may

be impracticable.

This paragraph is offered as guidance for applying Rule 702 through Rule 707 and is not

intended to alter authentication doctrine under Rules 901–903 or to create independent

disclosure obligations beyond what is necessary for admissibility in the case.

This language is technology-neutral, aligns with the Committee Note’s observation that

authenticity is distinct from reliability, and supports Rule 707’s core objective.

7. Closing

Proposed Rule 707 addresses a real gap: machine-generated output can carry expert-like

persuasive force without passing through Rule 702 scrutiny. Clarifying the two-step reliability

framework in the Committee Note would improve judicial administrability and fairness by

ensuring courts can require custody-grade integrity as a prerequisite to meaningful

inference-validity analysis.

Appendix A: Proposed Committee Note Language and Reliability Factors

Proposed Federal Rule of Evidence 707 (Machine-Generated Evidence)

A.1 Two-step reliability framework for Rule 707 administration

Step 1: Integrity of the record (custody-grade). Before a court can meaningfully evaluate the

reliability of machine-generated output, the proponent should establish that the underlying

inputs, transformations, and outputs are complete, tamper-evident, and traceable in a manner

that permits adversarial testing and independent verification.

Step 2: Validity of the inference (Rule 702-grade). Only after integrity is established should

the court evaluate whether the machine-generated output satisfies Rule 702(a)-(d), including fit

to the case, validation, and known sources of error or non-determinism.

A.2 Non-exclusive factors courts may consider (technology-neutral)

In applying Rule 702(a)-(d) to machine-generated evidence under Rule 707, courts may

consider whether the proponent provides information sufficient to enable meaningful adversarial

testing. These factors are non-exclusive and should be applied in a case-specific manner

consistent with judicial discretion under Rule 104(a).

1. Input completeness and tamper-evidence: Whether the proponent can detect

missing, reordered, or altered inputs that materially affect the output.

2. Provenance and binding: Whether outputs can be traced back to the specific inputs,

time intervals, and transformations that produced them.

3. System, model, and execution identity: Whether the proponent identifies the

system/model version and relevant execution context (including materially relevant

configuration and parameters).

4. Reproducibility and non-determinism disclosure: Whether the proponent provides a

reproducibility mode or explains sources of non-determinism relevant to evaluation of

reliability.

5. Separation of machine output from human modification: Whether post-processing,

human edits, or review actions that affect interpretation are distinguishable from the

machine-generated output and accounted for.

A.3 Suggested Committee Note insertion (proposed text)

In applying Rule 702(a)-(d) to machine-generated evidence under Rule 707, courts may

consider threshold integrity factors necessary for meaningful adversarial testing. Such factors

may include whether the proponent can provide tamper-evident records sufficient to detect

missing or altered inputs; identify the system, model version, and execution context that

generated the output; and permit independent verification of completeness and provenance. If

such integrity conditions are not satisfied, evaluation of inference validity under Rule 702 may

be impracticable.

Respectfully submitted,

Joseph Zaki

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PUBLIC COMMENT

to the

ADVISORY COMMITTEE ON EVIDENCE RULES

MATCHING TEXT TO INTENT: REVISING PROPOSED RULE 707 TO

CLOSE THE RULE 702 GAP AND

DEFINE RELIABILITY STANDARDS FOR MACHINE OPINIONS

January 5, 2026

Lawyers for Civil Justice (“LCJ”)1 respectfully submits this Comment to the Advisory

Committee on Evidence Rules (“Advisory Committee”) in response to the Judicial Conference

Committee on Rules of Practice and Procedure’s Request for Comments on proposed new

Federal Rule of Evidence (“FRE”) 707 (“Preliminary Draft”).2

INTRODUCTION

The Advisory Committee has identified important admissibility issues raised by artificial

intelligence and machine learning. Machine outputs that reflect inferences, predictions, or

conclusions pose serious reliability concerns. The Advisory Committee is rightly concerned

about bias, analytical errors, the “black box” nature of AI systems, and that “a machine cannot be

cross-examined.” Ensuring that a proponent of such evidence cannot “evade the reliability

requirements of Rule 702 by offering machine output directly”3 is sound and necessary.

But the Preliminary Draft does not communicate what the Advisory Committee seems to intend.

Although the Advisory Committee contemplates a rule making it “difficult” or “sometimes

Lawyers for Civil Justice (“LCJ”) is a national coalition of corporations, law firms, and defense trial lawyer

organizations that promotes excellence and fairness in the civil justice system to secure the just, speedy, and

inexpensive determination of civil cases. Since 1987, LCJ has been closely engaged in reforming federal procedural

rules in order to: (1) promote balance and fairness in the civil justice system; (2) reduce costs and burdens associated

with litigation; and (3) advance predictability and efficiency in litigation.

Preliminary Draft, Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal

Procedure, and the Rules of Evidence, 109-111 (Aug. 2025) (“Preliminary Draft”),

https://www.uscourts.gov/sites/default/files/document/preliminary-draft-of-proposed-amendments-to-federalrules_august2025.pdf.

Proposed Committee Note, Preliminary Draft at 110.

impossible” 4 to admit machine opinions without expert testimony, the Preliminary Draft reads as

creating a new pathway for such admission. The proposed rule provides a mechanism for

admission: if machine opinions satisfy Rule 702(a)-(d), then they may be admitted without

human testimony. Courts and lawyers will read this as authorization, not as a hurdle or

prohibition. The permissive language—“the court may admit”—signals achievability, not

restriction. Nothing in the rule text indicates that adversarial testing through expert testimony is

strongly preferred, that machine opinions are disfavored, or that satisfying the standards without

expert witnesses is challenging and should be rare.

The draft Committee Note cannot override the rule text. Although the draft Note explains that

“the point of this rule is to provide reliability-based protections when a party chooses to proffer

machine-generated evidence instead of a live expert”—and that the rule is “not intended to

encourage parties to opt for machine-generated evidence over live expert witnesses”—the rule

itself does not express these limitations. The proposed revisions discussed at the Advisory

Committee October 2025 meeting, such as clarifying that the standards “will be difficult to

meet—and sometimes impossible to meet—without presenting expert testimony”5 or suggesting

limiting instructions to address the inability to cross-examine machine opinions,6 highlight the

intended caution. Yet these additions cannot fix the rule’s text, which does not convey that

machine opinions should rarely, if ever, be admitted without expert testimony. The rule must

function by virtue of its own text.

The new rule should be custom-made for its purpose, not a cross-reference to an existing rule.

Rule 707 should not require each reader to interpolate the language of Rule 702(a)-(d), the

vocabulary of human expert witnesses, into to the world of machines, models, and algorithms.

Courts and lawyers will struggle with the linguistic mismatch. The Advisory Committee is

capable of defining admissibility standards for machine opinions, and it should do so. The

additional time required to get the rule right is well worth it—and in fact, the developing judicial

experience will certainly inform improvements to the rule.

This comment provides several recommendations intended to assist the Advisory Committee in

its important work to fashion a useful and appropriate rule.

THE PRELIMINARY DRAFT DOES NOT REFLECT THE ADVISORY

COMMITTEE’S INTENT

A. The Committee’s Intent Is Restrictive

The Advisory Committee’s explanatory materials reveal an appropriately cautious, protective

approach towards the admissibility of machine-generated evidence. The Advisory Committee

memo explains that “the concern is that it might be unreliable, and yet the unreliability will be

Memo from Daniel Capra to Jesse Furman, et al., Nov. 4, 2025 (“October Revisions”), available at

https://www.uscourts.gov/sites/default/files/document/2025-11_evidence_rules_commitee_agenda_book_final.pdf,

318.

Id.

buried in the program and difficult to detect.”7 The draft Committee Note lists concerns about

“analytical error or incompleteness, inaccuracy or bias built into the underlying data or formulas,

and lack of interpretability of the machine’s process.”8 The memo acknowledges that “the

hearsay rule is likely to be inapplicable because...a machine cannot be cross-examined.”9

The Advisory Committee’s goal appears to be preventing parties from evading Rule 702’s

reliability requirements by offering machine-generated analysis directly rather than through

expert witnesses. The Advisory Committee identified the potential gap: when a human expert

uses machine learning to reach a conclusion, Rule 702 applies,10 but if the same machinegenerated analysis is offered directly—through a lay witness who merely operated the program,

or with only authentication under Rule 902(13)—Rule 702 might not obviously apply.11 The

Advisory Committee wants to close this gap by requiring the same reliability scrutiny regardless

of how machine-generated analysis is presented.

The October Revisions to the Committee Note are aimed at conveying this intent:

It is anticipated that these reliability standards will be difficult to meet—and sometimes

impossible to meet—without presenting expert testimony. For example, without expert

testimony it may be very difficult for a proponent to establish that the data used in the

process is not biased and is sufficient for the task performed. Likewise, it may be difficult

to establish a rate of error, and the explicability of the process, in the absence of expert

testimony.12

Similarly, Professor Siffert’s proposed addition acknowledges the cross-examination problem:

A human expert can be cross-examined, and the jury will be able to weigh the

expert’s testimony accordingly. But it may be more difficult to attack the weight of

machine output...the inability to cross-examine is a concern. Accordingly, the court

should consider providing a limiting instruction that machine-generated evidence is

subject to error and that evidence should not be assumed to be reliable—or

unreliable—simply because it was produced by a machine.13

Preliminary Draft at 102.

Draft Committee Note, Preliminary Draft at 109.

Preliminary Draft at 102.

See, e.g.¸ In re Marriott International, Inc., Customer Data Security Breach Litigation, 602 F. Supp.3d 767, 787

(D. Md. 2022) (expert’s “data analysis,” consisting of “Click[ing] ‘Go’” on a set of AI “algorithms,” excluded under

Rule 702); In re Celsius Network LLC, 655 B.R. 301, 308-09 (Bankr. S.D.N.Y. 2023) (excluding, under Rule 702,

an AI generated expert report); Concord Music Group, Inc. v. Anthropic PBC, 2025 WL 1482734, at *3 (Mag. N.D.

Cal. May 23, 2025) (Rule 702 exclusion of paragraph of expert report containing AI hallucinated false citation);

Ferlito v. Harbor Freight Tools USA, Inc., 2025 WL 1181699, at *4 (E.D.N.Y. April 23, 2025) (allowing report that

expert claimed had only been “confirmed,” but not written by AI). Cf. Matter of Weber, 220 N.Y.S.3d 620, 633-34

(N.Y. Sur. 2024) (excluding AI-generated expert declaration under state Frye-based standard).

LCJ has found no judicial decisions applying the Federal Rules of Evidence, or state equivalents, to AI-generated

evidence without any expert support.

See supra n. 4.

Id.

These suggestions reflect concern about a fundamental problem: machine opinions admitted

under Rule 707 cannot be cross-examined. This is elemental; admitting substantive conclusions

without any opportunity for cross-examination about those conclusions is a radical departure

from adversarial process. When a human expert testifies, cross-examination can explore:

•

Why this conclusion rather than alternatives?

What factors were weighted and how?

What assumptions underlie the analysis?

Can the analysis be replicated, or could a different result be achieved using the

same inputs?

Does the tool that produced the output hallucinate?

Has the tool been tested for bias (e.g. algorithm bias, learning bias, data collection

bias, deployment bias, historical bias, user bias)? If so, has it been recalibrated

based on those tests? Is the expert aware of such issues?

Was the tool designed for this specific use case, or is it a non-standard or “offlabel” use?

Does the reasoning account for case-specific circumstances?

What is the expert’s track record? Potential biases? Financial interests?

How certain is the expert about this conclusion?

None of these questions can be asked of a machine. Even if the machine process is validated as

generally reliable, the opposing party has no opportunity to challenge the “reliable application of

the principles and methods to the facts of the [specific] case.”14 The machine evaluates data and

reaches a conclusion—but what data does it prioritize? What alternatives did it reject? How

confident is the prediction? These matters cannot be probed without a human expert who adopts

the conclusion and can explain and defend it, and often not even then.15

The October Revisions reflect that machine opinions should rarely, if ever, be admitted without

expert testimony, and certainly not without good cause.16 Moreover, “unexplainable” or “black

box” results should not be admissible at all. But the proposed rule text does not adequately

convey this meaning.

B. The Proposed Rule 707 Text Creates a Pathway for Admission

Proposed Rule 707 states: “When machine-generated evidence is offered without an expert

witness and would be subject to Rule 702 if testified to by a witness, the court may admit the

evidence only if it satisfies the requirements of Rule 702(a)-(d).” This is permissive language

creating a pathway for admission. The structure is: IF machine-generated evidence satisfies Rule

702(a)-(d), THEN the court may admit it. This is a route, not a barrier. The rule provides a

checklist—satisfy 702(a)-(d)—and checklists invite attempts to comply.

Fed. R. Evid. 702(d).

See cases cited in n.10, supra.

Showings of good cause are required under several existing federal rules. See Fed. R. Evid. 107(b)(2); Fed. R.

Civ. P. 5.2(e), 6(b)(1), 6(c)(1)(C), 16(b)(2, 4), 26(b)(2), 26(c)(1), 30(b)(4), 33(b)(4), 35(2)(a), 43(a), 47(a), 55(c),

and 73(b)(3). The common theme is that the relief being sought is extraordinary and requires the movant to justify

the request.

Lawyers will read proposed Rule 707 as an invitation to introduce machine opinions without

expert testimony, and they will prepare evidence to satisfy Rule 702(a)-(d). They will argue:

“We’ve satisfied the rule’s requirements, so admission is warranted.” Courts may feel obligated

to admit if the proponent has checked the boxes. The rule implies that satisfaction of its

requirements justifies admission. Without clear textual indication that such admission should be

rare or disfavored, courts will apply the rule as written.

In contrast, restrictive language might say: “Machine opinions ordinarily shall not be admitted

without testimony from a qualified expert who adopts such opinions as the expert’s own.” That

conveys prohibition with a narrow exception. Or: “Machine opinions are admissible only in

exceptional circumstances when expert testimony is unavailable and the reliability of the opinion

is so clear that the lack of opportunity for cross-examination is not material.”

The proposed rule does not communicate that the pathway for admission of machine opinions

without an expert should be rare, difficult, or disfavored—and the Committee Note cannot

establish that meaning.

C. The Committee Note Cannot Decree the Rule’s Meaning

The draft Committee Note says the proposed rule:

…is not intended to encourage parties to opt for machine-generated evidence over live

expert witnesses. Indeed the point of this rule is to provide reliability-based protections

when a party chooses to proffer machine-generated evidence instead of a live expert.

But the rule text does encourage this choice by making it available. A party considering whether

to use machine opinions would have a clear rule telling them how to do it. The text authorizes

what the Note disclaims.

The October Revisions to the Committee Note would add to the attempt to convey what the rule

text does not. The proposed language stating that reliability standards “will be difficult to

meet—and sometimes impossible to meet—without presenting expert testimony” is crucial

information about how the rule should operate. But this idea is absent from the rule text that

governs judges and lawyers.

A rule should be understandable on its own text. A Committee Note cannot dictate a meaning

that the rule does not have; it cannot transform permissive text into a hurdle or prohibition. As a

practical matter, some courts and lawyers do not consult Committee Notes, and even when they

do, the text governs.17 The Rules Enabling Act requires a committee note—not as a directive or

In re Sealed Case, 141 F.3d 337, 343 (D.C. Cir. 1998) (Advisory Committee Note to Fed. R. Civ. P. 26(c) is not

authoritative: if a rule and note conflict the rule must govern).

necessary interpretation, and not even as practice advice—but rather as a form of legislative

history.18 The rule text should be capable of standing on its own.

No doubt, some judges and lawyers would read and understand the Advisory Committee’s

protective intent from the explanatory materials and interpret the Preliminary Draft of Rule 707

restrictively. But others would apply the permissive text as written without the benefit of the

Note and admit evidence whenever they conclude proponents have satisfied the stated

requirements. This would create inconsistency and could incentivize forum shopping. The

problem is predictable—and cannot be solved by suggesting a limiting instruction.

D. Suggesting a Limiting Instruction Does Not Remedy the Text

A prompt in the Committee Note for judges to issue limiting instructions to juries is another step

further removed from the rule text. Although well-intended, the proposed October Revision

acknowledging the cross-examination problem and suggesting a limiting instruction is a paltry

work-around for a structural problem with rule text. As with Rule 702, a curative instruction is

no substitute for judicial gatekeeping. A limiting instruction warning jurors that machine

evidence “is subject to error” and “should not be assumed to be reliable...simply because it was

produced by a machine” may be a good idea in a particular case, but making such a suggestion is

not rulemaking—it cannot pinch hit for a rule establishing admissibility standards.

E. The Placement of Rule 707 Does Not Suffice to Inform Most Readers

The placement of Rule 707 in FRE Article VII (“Opinions and Expert Testimony”) is,

unfortunately, of limited value in communicating the rule’s scope. Most courts and practitioners

don’t think structurally about the FRE; they focus on the text of the rules. The term “machinegenerated evidence” will be viewed expansively even if the proposed rule appears in Article VII

rather than Article IX. The following recommendations should help.

II.

RECOMMENDATIONS

A. Rule 707 Should Make Expert Testimony the Default and Allow for Objection

Since the Advisory Committee intends Rule 707 to make it “difficult” and even “sometimes

impossible” to admit machine opinions without an expert witness, the rule should say so. It

should establish a default or presumption that machine opinions are admissible only though an

expert and therefore Rule 702 governs. This makes sense because if a human expert adopts the

machine’s opinion, the proponent would be required to satisfy Rule 702, and if the court

concludes that the standards are met, then the expert’s explanation will be subject to crossexamination. The reliability of AI technology is not sufficiently understood to contemplate

admission of machine opinions without an expert. A necessary component of such a default rule

is a mechanism to object to admission of machine opinion without an expert. And the rule

28 U.S.C. § 2703 (“In making a recommendation under this section or under section 2072 or 2075, the body

making that recommendation shall provide a proposed rule, an explanatory note on the rule, and a written report

explaining the body’s action, including any minority or other separate views.”).

should expressly state that the court must find the machine opinion admissible (i.e., the 104(a)

standard) before it can go to the trier of fact.

B. The Rule Should Establish Standards for Machine Opinions Rather than

Requiring Ad Hoc Extrapolations of 702(a)-(d)

The Preliminary Draft requires that machine-generated evidence “satisf[y] the requirements of

Rule 702(a)-(d).” But Rule 702 is written for human expert testimony, and its language requires

translation and extrapolation to apply it to machine output.

•

Rule 702(a) refers to “the expert’s scientific, technical, or other specialized

knowledge.”19 The machine cannot be an “expert” and does not have “knowledge” in this

sense—it has programming, algorithms, and training data. How do courts and parties

determine whether “the machine’s knowledge will help the trier of fact”?20 The draft

Committee Note attempts to translate the words of Rule 702 into the 707 context, but the

rule should be the translation rather than require every reader to concoct their own

translations.

•

Rule 702(b) and (c) require that “the testimony” is “based upon sufficient facts or data”

and “the product of reliable principles and methods.”21 But machine output is not

“testimony.”22 The draft Committee Note says this requirement should focus on “whether

the training data for a machine learning process is sufficiently representative to render an

accurate output,”23 which is a good interpolation and should be in the rule text.24

•

Rule 702(d) requires that “the expert’s opinion reflects a reliable application of the

principles and methods to the facts of the case.”25 Machine output is not an “expert’s

opinion.” Who applies the principles and methods—the programmer? The user? The

machine itself?26

FED. R. EVID. 702(a).

“Algorithms are not omniscient, omnipotent, or infallible. They are nothing more than a systematic method of

performing some particular process from a beginning to an end. If improperly programmed, if the analytical steps

incorporated within them are erroneous or incomplete, or if they are not tested to confirm their output is the product

of a system or process capable of producing accurate results (a condition precedent to their admissibility), then the

results they generate cannot be shown to be relevant, reliable, helpful to the fact finder, or to fit the circumstances of

the particular case in which they are used.” Marriott International, 602 F. Supp.3d at 787.

FED. R. EVID. 702(b) and (c).

Thus, the AI aspect must be “separately evaluate[d]” from the expert testimony itself. Celsius Network, 655 B.R.

at 308.

Draft Committee Note, Preliminary Draft at 111.

See Celsius Network, 655 B.R. at 308 (evaluating “the underlying source material” used by AI, the expert’s

familiarity with that material, any “standards controlling the operation of the [AI],”and any “errors” in the AIgenerated output).

FED. R. EVID. 702(d).

See Weber, 220 N.Y.S.3d at 634 (citing “due process issues” that “arise when decisions are made by a software

program, rather than by, or at the direction of a [human]”).

Courts will struggle with the linguistic mismatch between “expert,” “testimony,” “opinion,” and

“knowledge” on the one hand, and machine algorithms on the other.27 The two bullet points in

the draft Committee Note are simultaneously inadequate and over-reaching for a Note. The

Advisory Committee is capable of defining admissibility standards for machine opinions, and it

should do so in the rule. A revised draft Rule 707 might include:

•

Training data sufficiency and bias: What underlying data was used? Is that data

representative? How much is enough? What if bias exists?

Validation adequacy: Has the process been validated for the specific purpose to which it

is being applied? What constitutes proper validation? Must it be independent? In similar

circumstances?

Reliability: Can the process be repeated with similar results?

Error rates: How are error rates established? What rates are acceptable?

Explicability: Is the underlying methodology sufficiently transparent or explainable?

How explainable must the process be? What about “black box” systems?28

Proprietary systems: How can courts assess trade secret algorithms?

Courts and lawyers need and will appreciate this type of rule guidance. The rule should focus

courts and parties on the reliability of the analysis, not the source. It should make clear that

“unexplainable” results are not admissible.

There’s an additional rulemaking reason for Rule 707 to stand on its own rather than incorporate

Rule 702 by reference. If the Advisory Committee were to promulgate the current draft Rule

707, and then return to it at some future date to examine its operation, it would likely find that

caselaw and practice concerning machine opinions have developed under Rule 702. Thus, any

future adjustments of Rule 707 would inevitably pose the question—and the temptation—of

altering Rule 702. At that point, the Advisory Committee would once again ask: should we write

a new rule? But by then, there will be years of opinions and practice under the Rule 707incorporation-of-Rule 702 rubric, which would complicate both options. In other words, if

structuring Rule 707 to incorporate Rule 702(a)-(d) is motivated in part by the goal of protecting

Rule 702, then it could prove to be a Pyrrhic act that instead causes a greater need for a Rule 702

amendment in the future.

See Concord Music, 2025 WL 1482734, at *3 (“attorneys and experts [may not abdicate] their independent

judgment and critical thinking skills in favor of ready-made, AI-generated answers”).

Even without AI, experts are quite capable of designing biased algorithms capable of generating the desired result

no matter what inputs are used. See In re Avandia Marketing, Sales Practices & Products Liability Litigation, 2024

WL 4582876, at *8 (E.D. Pa. Oct. 25, 2024) (describing a “falsification analysis” that established that a purported

“regression analysis” generated “positive and statistically significant relationship[s]” even when completely

irrelevant inputs – “monthly beef production, Colorado River flows, U.S. carbon emissions, and Hershey’s

expenditures” – were substituted).

C. Rule 707 Should Use the Words “Machine Opinions” Rather than “MachineGenerated Evidence”

The phrase “machine-generated evidence” declares a far broader scope than the Advisory

Committee intends for Rule 707. “Machine-generated evidence” includes:

•

Emails, letters, memos, and other documents drafted by LLMs29

Raw data (GPS coordinates, timestamps on photos)

Simple measurements (thermometer readings, electronic scale weights)

Basic calculations (spreadsheet formulas, database queries)

Computer-generated visual aids and accident reconstructions

Opinions and analysis (AI predictions, algorithmic inferences, machine conclusions)

Only this last category is within the intended scope of a new Rule 707—inferences, predictions,

and conclusions. These are “machine opinions,” analogous to expert opinions, and should be

referred to as such in the rule. This terminology:

•

Focuses on inferential, analytical, or predictive outputs rather than all machine-generated

evidence

Parallels “expert opinions” from Rule 702, making the connection clear

Could suggest a title parallel to the titles of Rules 701 and 702, such as “Opinions from

Machines”

Excludes routine measurements and calculations that don’t raise Rule 702-type concerns

Eliminates confusion about the rule’s scope

The distinction between machine-generated evidence and machine opinions is functional:

thermometers measure; spreadsheets calculate; databases retrieve stored information. None of

these machine-generated outputs involve drawing inferences or making predictions. In contrast,

AI analysis of whether a doctor breached the standard of care, whether stock price movements

establish causation, or whether a copyright has been infringed are “opinions” requiring the type

of scrutiny Rule 702 provides for human expert opinions.

Using “machine opinions” would engender less uncertainty than the phrase “machine-generated

evidence,” and would also obviate the need to expressly exclude “basic scientific instruments,”

the definition of which is very likely to engender new and needless motion practice on the

introduction of evidence that has traditionally been largely unquestioned outside authenticity.30

D. Consider Incorporating a Tailored Version of Rule 703

Rule 703 defines what information may be the basis of an expert’s testimony. Like Rule 702, it

is written for human witnesses and uses terms that apply to humans, not to machines or

algorithms. However, rule guidance on questions concerning the basis for machine opinions will

probably be even more important than for human experts because machines have the capacity to

Many such documents would and should be treated as “business records” under FED. R. EVID. 803(6).

See infra II. E.

analyze and synthesize vastly more data much more quickly. Perhaps a revised proposed Rule

707 could address this topic, or perhaps a new stand-alone rule is preferable to the Advisory

Committee.31 Either way, guidance for courts and parties may be equally if not more important

than Rule 703.

E. The Rule Should Omit Reference to “Simple Instruments”

The Preliminary Draft’s final sentence attempts to address overbreadth: “This rule does not apply

to the output of simple scientific instruments.”32 But this concept, and this wording, are so vague

that the rule would function better if it were omitted. The draft Committee Note explains that

this sentence is “intended to give trial courts sufficient latitude to avoid unnecessary litigation

over the output from simple scientific instruments that are relied upon in everyday life.

Examples might include the results of a mercury-based thermometer, an electronic scale, or a

battery-operated digital thermometer.”33 Professor Roth’s proposed revision tries to clarify:

“This rule does not apply to the output of simple scientific instruments when the machine that

generated the evidence is accessible to, and the extent of its reliability well known to, the general

public.”34 Neither version makes it clear—in fact, both make it more likely that parties will raise

the question.35 Limiting Rule 707 to “machine opinions”—as suggested above—would define

the scope of the rule more clearly and thereby lessen the need for an express disclaimer.

III.

TIMING

Although questions and problems concerning admissibility of machine opinions are likely to

increase in frequency, the need for an appropriate rule vastly outweighs the utility of an

immediate rule. An incomplete or inadequate rule is certain to cause more harm than allowing

courts to address emerging issues as the Advisory Committee works to refine its proposal. In

fact, some development of actual issues in the courts would likely to lead to a better rule. If

revising the Preliminary Draft and incorporating some actual judicial experience takes another

year or even longer, the benefits would be well worth the price.

CONCLUSION

The Advisory Committee has identified a real problem that should be addressed: machine

opinions raise legitimate reliability concerns that need uniform admissibility standards. The

Committee’s goal—preventing evasion of Rule 702’s requirements—is sound.

See Celsius Network, 655 B.R. at 308 (AI generated a “172-page Report” “within 72 hours” that “would have

taken over 1,000 hours to complete” if it had been “human authored”; “it took [the expert] longer to read [the] report

than to generate it”; report excluded because the expert “did not review the underlying source material…nor d[id] he

know what his team did (or did not do) to review and summarize those materials”).

Preliminary Draft at 109.

Draft Committee Note, Preliminary Draft at 111.

See supra n. 4.

“Simple” and “well known to the general public” are so vague as to invite litigation, and these terms focus on

accessibility rather than function. A better distinction is between measurements/calculations (which don’t raise

opinion-reliability concerns) and inferences/predictions (which do). A thermometer doesn’t opine; it measures. An

AI medical diagnostic system doesn’t measure; it infers and concludes.

But proposed Rule 707 doesn’t accomplish that goal. The text is permissive; it enables rather

than restricts the admission of machine opinions without expert witnesses. Although the

Advisory Committee intends restriction, the Preliminary Draft communicates that intent in the

Note but not the rule text, which is insufficient. The solution is to make the rule text match the

intent. The rule should require expert testimony as the default. It should establish reliability

factors—training data, validation, error rates, explicability—rather than require each judge and

lawyer to extrapolate these ideas from the language of Rule 702(a)-(d). The rule should

explicitly require the proponent to establish the foundation for machine opinions. And it should

use “machine opinions” instead of “machine-generated evidence” to define the rule’s scope. The

rule must work without the Note, whose purpose is to provide rulemaking context and history

rather than necessary definition.

The importance of this effort justifies the time required to draft a customized rule, and the

judicial experience that emerges during this process will help inform it.

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Comment from Kenney, Jeannine

Posted by the United States Courts on Jan 6, 2026

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HAUSFELD®

January 5, 2026

Jeannine Kenney

Partner

325 Chestnut Street

Suite 900

Philadelphia, PA 19106

Via Electronic Submission

Committee on Rules of Practice and Procedure

Judicial Conference of the United States

One Columbus Circle Northeast

Washington, D.C. 20544

T: 215.309.7478

E: jkenney@hausfeld.com

Re: Request for Comments on Proposed Federal Rule of Evidence 707

Dear Members of the Committee:

Thank you for the opportunity to comment on the Committee’s proposed new Federal Rule of Evidence

707 regarding machine-generated evidence.

I am a partner at Hausfeld LLP, a global claimants’ law firm with a focus on private enforcement of

competition laws, with nearly 250 attorneys worldwide. Within the United States, Hausfeld’s practice

comprises predominantly large, complex, class actions focusing on antitrust matters but also including

consumer, technology, privacy, data breach, environmental, and human rights class actions. Our practice

universally involves expert testimony—whether legal, scientific, economic, or technical—including

offensive use and defending challenges to our experts, as well as challenging the reliability of expert

testimony offered by the opposing party. I am a member of the Committee in Support of the Antitrust

Laws (COSAL), the American Association of Justice, and Working Group 1 on electronic evidence of

the Sedona Conference.

Although the proposed Rule is a thoughtful, well-intended, and thoroughly studied effort to address the

brave new world of artificial intelligence, I recommend that the Committee suspend consideration of

adopting proposed Rule 707 to: (1) evaluate whether use of machine-learning output in litigation

materializes in the manner the Committee anticipates and to assess whether the existing rules are up to

the task of preventing attempts to circumvent Rule 702; and (2) if the Committee decides to advance the

proposed Rule, substantially narrow it to better target the type of evidence that appears to animate the

proposed Rule.

What I understand the Committee to intend by the Rule is that machine generated output that is

generated for a litigation, is introduced to prove the truth of that output, and is predictive or inferential in

nature akin to the types of conclusions, inferences, estimates, and predictions experts make, then the

output must be assessed under Rule 702. But the existing Federal Rules of Evidence provide sufficient

authority for Courts and litigants to challenge the qualifications of any witness or affiant offered to

authenticate the output of artificial intelligence tools and thus the underlying methodology and

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technology of the tool generating that output. The Rules have demonstrated marked robustness as new

technology has rapidly developed over the last two decades. The advent of artificial intelligence is likely

to be no exception.

Additionally, the proposed Rule, as drafted, is also so vastly overbroad that it is likely to result in

confusion and delay from unnecessary side litigation over otherwise ordinary testimony and evidence

admissible under other Rules as well as evidence that has long been accepted as capable of generating

reliable results.

1. The Current Rules Are Up to the Task of Ensuring That Predictive or Analytical Output is

Assessed Under Rule 702.

The proposed Rule was driven by concern that “Rule 702 is not clearly applicable if the machine output

is admitted without any expert testimony – either directly or by way of a lay witness.” And the

committee note expresses the concern that:

Where a testifying expert relies on such a method [one that makes

predictions or draws inferences], that method—and the expert’s reliance on

it—will be scrutinized under Rule 702. But if machine or software output

is presented without the accompaniment of a human expert (for example

through a witness who applied the program but knows little or nothing about

its reliability), Rule 702 is not obviously applicable.

....

If the machine output is the equivalent of expert testimony, it is not enough

that it is self-authenticated under Rule 902(13). That rule covers

authenticity, but does not assure reliability under the preponderance of the

evidence standard applicable to expert testimony.

I disagree.

The existing Rules of Evidence require that, whether introduced by a witness to authenticate the

evidence or directly using self-authentication, any opinion about the accuracy of machine-generated

evidence (and, consequently, the reliability of the evidence itself) would be subject to Rule 702 when

drawing that opinion requires scientific, technical, or specialized knowledge. And that would assuredly

be the case if output from a machine-learning tool were the evidence at issue.

The rules regarding opinion testimony and authenticity work together to prevent parties from

circumventing Rule 702 in the way the Committee fears. As the Committee knows, Courts regularly

HAUSFELD.

exclude purportedly lay opinion offered under Rule 701 when the opinion requires scientific, technical,

or other specialized knowledge beyond the ken of a layman. See, e.g., LifeWise Master Funding v.

Telebank, 374 F.3d 917, 929 (10th Cir.2004) (affirming district court decision to analyze lay testimony

under Rule 702’s requirements where the testimony was based on a predictive model of profits that was

not within a lay person’s understanding). Indeed, Rule 701 was amended in 2000 specifically to

“eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the

simple expedient of proffering an expert in lay witness clothing.” Fed. R. Evid. 701 2000 Advisory

Committee Note.

The conclusion above holds true even when a witness or affiant is not offering an opinion equivalent to

the output of machine learning tools but is instead authenticating the output of machine-learning that

draws those conclusions.

That is because authentication under Rule 901(b)(9) or 902(13)1 necessarily requires a witness or affiant

to render an opinion about the accuracy of the result of a computer generated process or system. 902(13)

also requires that the certification of accuracy be made by a “qualified” person. And when attesting to

accuracy “requires specialized knowledge about the technology involved, the certification should

establish that the person signing the certification qualifies as an expert in such matters” and must “recite

facts to establish that the accurate-result opinion satisfies Rule 702.” See, e.g., Magee v. Noe, No. 20-cv183, 2023 WL 116349, at *5 (S.D. Miss. Jan. 5, 2023) (excluding data output certified under 902(13)

because the “accurate-result” opinion did not comply with Rule 702); Lorraine v. Markel Am. Ins. Co.,

241 F.R.D. 534, 561 (D. Md. 2007) (Grimm, J.) (“[T]there will need to be proof, permissible under Rule

901(b)(9), that the digital enhancement process produces reliable and accurate results, which gets into

the realm of scientific or technical evidence under Rule 702.”). See also Paul W. Grimm & Kevin

Brady, 19 Sedona Conf. J. 707, 720 (“Although Rule 902(13) and (14) do not refer to Rule 702, careful

lawyers would be wise to ensure that the affiant providing the certificate meets the requirements of an

expert witness under Rule 702 if the underlying facts to be authenticated involve scientific, technical, or

specialized knowledge, as the underlying facts often do.”).

While “accuracy” may not overtly require that the systems be “reliable,” those Rules still bring the

reliability of machine-generated output into the ambit of Rule 702. While accuracy is a different

standard than reliability (e.g., an outcome may be accurate but the model that generated it may not be

reliably so, or a model may be reliably inaccurate), for purposes of applying Rule 909(b)(9) and 902(13)

to machine-learning tools, this distinction is irrelevant. Where the underlying computer process is a

model or machine-learning tool that offers “predictions or draws inferences,” accuracy necessarily

Thus, the authenticity foundation that satisfies Rule 901(b)(9) can be established by a certification under Rule

902(13) rather than the testimony of a live witness.

HAUSFELD.

requires a determination of reliability.2 901(b)(9) was designed for situations in which the “accuracy of

a result is dependent upon a process or system which produces it.” Fed. R. Evid. 901(b)(9) Advisory

Committee Note. While “accuracy” may not overtly require that the systems be “reliable,” because of

the nature of AI output, those Rules bring the reliability of machine-generated output into the ambit of

Rule 702. And in the case of machine-learning tools, a determination of accuracy would require a

finding of both that the system used valid methods to produce an accurate result and that it did so in a

particular instance.

Thus, it is premature to conclude that evidence reflecting the output of machine-learning tools that

predict outcomes, provide estimates, or draw inferences would evade Rule 702 given the protections

already provided under the Rules. Indeed, non-AI predictive tools have been available to lay persons for

more than a decade (e.g., Excel’s Analysis ToolPak, which allows lay person to run multiple regressions

and other complex data analysis) and courts have effectively managed admissibility of such evidence as

science and technology has evolved without need of a new rule to prevent their misuse in litigation. At

best, the question whether potential use of artificial intelligence in litigation necessitates a new Rule is

unclear.

If the Committee believes it must take action now, at the very most, it should merely clarify that under

Rules 901(b)(9) and 902(13), where attesting to the accuracy of a computer/electronic process or system

or its results requires scientific, technical, or specialized knowledge, Rule 702 applies to both the

affiant/witness and the process or system.

2. The Proposed Rule is Vague and Vastly Overbroad

If the Committee moves forward with a new Rule 707, it must be far more narrowly tailored. As drafted,

it is likely to sow confusion, generate side litigation, disrupt the civil process, and prejudice litigants.

Although the Committee’s concern seems to be animated by the increasing availability and

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