Changes to the Mississippi Rules of Evidence

Mississippi Rules of Evidence

Rules of Evidence

Effective July 1, 2020, the Mississippi Supreme Court has approved several changes to the Mississippi Rules of Evidence.

You can read the changes here: https://courts.ms.gov/appellatecourts/docket/sendPDF.php?f=700_502231.pdf&c=17865&a=N&s=2

This post will briefly summarize the changes.

Rule 502. Lawyer-Client Privilege.

The amendment to the Rule has the effect of limiting the scope of any waiver of the privilege.

If a party waives the attorney-client privilege as to a particular communication, the waiver also extends to other undisclosed communications if all three of these elements are met:

  1. The waiver was intentional.
  2. The disclosed and undisclosed communications concern the same subject matter.
  3. Both communications should in fairness be considered together.

If the disclosure is inadvertent, such does not operate as a waiver if:

  1. The holder of the privilege took reasonable steps to prevent disclosures, and
  2. The holder promptly took reasonable steps to rectify the error.

Rule 803(6).

This rules creates a hearsay exception for Records of a Regularly Conducted Activity.

There are five elements that must be met to satisfy the rule. Prior to the amendment, the 5th element was that neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

The amendment now puts the burden on the opponent of the evidence to demonstrate such.

Rule 803(7).

The rule creates a hearsay exception for the absence of a Record of Regularly Conducted Activity. Again, the amendment places the burden on the opponent to show lack of trustworthiness.

Rule 803(8).

This is the Public Records exception to hearsay. Once again, the opponent of the evidence bears the burden of proving the lack of trustworthiness.

Rule 803(10).

This hearsay exception for the absence of a public record. The amendment applies to criminal cases, and it requires the prosecutor to give advance notice of the intent to invoke this exception.

803(16).

This is the Statements in Ancient Documents exception to hearsay. Prior to the amendment, the exception applied to documents that were at least 20 years old.

Now, the document must have been prepared before January 1, 1998.

The reasoning behind this amendment is that given the exponential development and growth of electronic data since 1998, the exception could be used to admit large amounts of unreliable ESI.

Rule 804(b)(3).

This Rule permits the use of statement against interest when a declarant is unavailable as a witness.

The amendment adds the requirement that, in a criminal case, the statement is one that tends to expose the declarant to criminal liability.

Rules 902(12) and 902(13).

These new rules allow certain electronic data to be self-authenticating.

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