Is It Time to End the Ancient Documents Rule?

You can trust old things. That's the logic of the ancient documents rule, which allows lawyers to introduce hearsay evidence so long as the document is old enough and appears authentic. How old is old enough? Just 20 years.

Ironically, that thinking is probably out of date, given the amount of digital data that can be hoarded away for long periods. If the logic behind the rule was questionable when it was established, some argue that it's even weaker now. The federal judiciary might agree. It decided earlier this month to consider ending the ancient documents rule altogether.

Courts Have No Respect for Their Elder Documents

The ancient documents hearsay exception, Federal Rule of Evidence 803(16), allows the admission of documents 20 years old that appear authentic despite the hearsay rule. It's a rarely used exception, but one which has always been suspect. According to Judge William Sessions the Third, the rationale for the rule "has always been questionable" since "a document does not magically become" more reliable as it ages. Sessions chairs the Advisory Committee on Evidence Rules, which is recommending that the exception be killed.

The fact that the ancient documents rule has been tolerated at all is largely because it went unused, according to Sessions. But that's not likely to be the case in the future, as electronic storage keeps past documents around forever.

The Committee looked at four alternatives for the rule, including limiting the exception to hard copies and allowing documents to be excluded if shown to be untrustworthy. It was better to abrogate the rule entirely, the Committee found, given the concerns the exception raises -- particularly in criminal cases such as sexual abuse and conspiracy, where statutes of limitations don't apply.

A Forward Thinking Solution?

The Committee's recommendation emphasized the growing use of electronically stored information and the possibility of future abuse. That's a rare proactive attempt to stave off future problems by a federal judiciary that's not known to be fast moving. Twenty years ago, in 1995, email and the like were just becoming common -- but massive data storage was not. That rapidly changed, however, and in just a few years courts might be seeing piles of hearsay-proof emails, IMs, and Facebook posts.

However, ancient documents fans have some consolidation. The other ancient documents rule, which presumes ancient documents are authentic, won't be changed. If you feel passionately about the rule either way, however, the Committee is accepting public comments, electronically and in person, before it makes a final decision.

Related Resources:

• Federal Judiciary Considers Dumping 'Ancient Documents' Rule (ABA Journal)
• 7 Best Practices for Capturing Webpage and Internet Evidence (FindLaw's Strategist)
• Are Parrot's Cries Admissible Evidence in Elder Abuse Case? (FindLaw's Strategist)
• Did You Ask Your Clients if They Have Any Incriminating Doodles? (FindLaw's Strategist)