            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                   No. AF 07-0031
                                   ______________

IN THE MATTER OF THE PETITION FOR         )
AMENDMENT OF THE MONTANA RULES            )                         ORDER
OF EVIDENCE                               )
                           ______________

      On January 16, 2007, the duly appointed Montana Commission on Rules of
Evidence (the Commission) filed with this Court a Petition for Amendment of the
Montana Rules of Evidence (Rules). The Petition was filed following meetings of the
Commission and its acceptance of testimony and writings from interested parties both
supportive of and opposed to the proposed rule changes.
      In its Petition, the Commission recommends the adoption of four proposed
changes to the Rules. They are:
(A)   A revision of Rule 407 to comport with Federal Rule 407 and our holding in Rix v.
General Motors, 222 Mont. 318, 329-30, 723 P.2d 195, 202-203 (1986). The revised
Rule 407 would read as follows:
             Rule 407. Subsequent remedial measures.
             When, after an injury or harm allegedly caused by an event,
      measures are taken that, if taken previously, would have made the injury or
      harm less likely to occur, evidence of the subsequent measures is not
      admissible to prove negligence, culpable conduct, a defect in a product, a
      defect in a product’s design, or a need for a warning instruction. This rule
      does not require the exclusion of evidence of subsequent measures when
      offered for another purpose, such as proving ownership, control, or
      feasibility of precautionary measures, if controverted, or impeachment.

(B)   An amendment to Rule 803(8) to delete the last sentence thereof, in accordance
with our decisions in State v. Clark, 1998 MT 221, 290 Mont. 479, 964 P.2d 766, ¶ 30,
and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004). Rule 803(8) as
revised would read as follows:




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               (8) Public Records and Reports. To the extent not otherwise
       provided in this paragraph, records, reports, statements, or data
       compilations in any form of a public office or agency setting forth its
       regularly conducted and regularly recorded activities, or matters observed
       pursuant to duty imposed by law and as to which there was a duty to report,
       or factual findings resulting from an investigation made pursuant to
       authority granted by law. The following are not within this exception to the
       hearsay rule: (i) investigative reports by police and other law enforcement
       personnel; (ii) investigative reports prepared by or for a government, a
       public office, or an agency when offered by it in a case in which it is a
       party; (iii) factual findings offered by the government in criminal cases; (iv)
       factual findings resulting from special investigation of a particular
       complaint, case, or incident; and (v) any matter as to which the sources of
       information or other circumstances indicate lack of trustworthiness.

(C)    An amendment to Rule 804(b) to add the language contained in Federal Rule
804(b)(6), termed the “forfeiture by wrongdoing” provision. Proposed Rule 804(b)(6) is
set forth below:
              Rule 804. Hearsay exceptions: declarant unavailable.
              ...
              (b) Hearsay exceptions. The following are not excluded by the
       hearsay rule if the declarant is unavailable as a witness:
              ...
              (6) Forfeiture by wrongdoing. A statement offered against a party
       that has engaged or acquiesced in wrongdoing that was intended to, and
       did, procure the unavailability of the declarant as a witness.

(D)    An amendment to Rule 806 to delete a misplaced comma in the first sentence
between (2) and (C), so that the rule would now read as follows:
               Rule 806. Attacking and Supporting the Credibility of a Declarant.
               When a hearsay statement, or a statement defined by Rule
       801(d)(2)(C), (D), or (E) has been admitted in evidence, the credibility of
       the declarant may be attacked and, if attacked, may be supported by any
       evidence which would be admissible for those purposes if the declarant had
       testified as a witness.

       On June 20, 2007, at a public meeting of the Montana Supreme Court following
duly published notice, the Court discussed the Commission’s proposal to amend Rules


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407, 803(8), and 806. The Court determined that discussion of the proposed amendment
to Rule 804(b) would be postponed to a future date and time, following duly published
notice. Peggy Tonon, Chairperson of the Commission, spoke in favor of our adoption of
the amendments to the three foregoing rules. There being no opposition, and following
discussion, the Court voted unanimously to adopt the proposed amendments to Rules
407, 803(8) and 806, MRE, as set forth above.
       Accordingly, and pursuant to the authority vested in this Court under Article VII,
§ 2(3) of the Montana Constitution,
       IT IS HEREBY ORDERED that Rules 407, 803(8) and 806 are AMENDED, as
set forth herein, effective October 1, 2007.
       IT IS FURTHER ORDERED that a copy of this Order be electronically published
on the State Bar of Montana website, http://www.montanabar.org, and on the website for
the State of Montana Law Library, http://www.courts.mt.gov/library, and that a copy of
this Order be published in the next available issue of The Montana Lawyer.
       IT IS FURTHER ORDERED that a copy of this Order be served by electronic
transmission to: the Executive Director of the State Bar of Montana; the editor of The
Montana Lawyer; the State Law Librarian; the Code Commissioner for the State of
Montana; all Clerks of the District Court; and all District Judges. In addition, a hard copy
of this Order shall be served by U.S. mail on the President of the Montana Judges’
Association; and the President of the Montana Magistrates’ Association.
       DATED this 20th day of June, 2007.

                                                                    /S/ KARLA M. GRAY
                                                                 /S/ PATRICIA COTTER
                                                                  /S/ JAMES C. NELSON
                                                           /S/ W. WILLIAM LEAPHART
                                                                       /S/ JOHN WARNER
                                                                              /S/ JIM RICE
                                                                       /S/ BRIAN MORRIS




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