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Federal Rules of Evidence #1
The federal rules of evidence are the basis for many state
court laws. First of all, it is important to remember that these
rules are intended as rules of admission of evidence. */
ARTICLE I. GENERAL PROVISIONS
Rule 101. Scope
These rules govern proceedings in the courts of the United States
and before United States magistrates, to the extent and with the
exceptions stated in rule 1101.
Rule 102. Purpose and Construction
These rules shall be construed to secure fairness in
administration, elimination of unjustifiable expense and delay,
and promotion of growth and development of the law of evidence to
the end that the truth may be ascertained and proceedings justly
determined
Rule 103. Rulings on Evidence
(a) Effect of erroneous ruling. Error may not be predicated upon
a ruling which admits or excludes evidence unless a substantial
right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a
timely objection or motion to strike appears of record, stating
the specific ground of objection, if the specific ground was not
apparent from the context; or
(2) Offer or proof. In case the ruling is one excluding evidence,
the substance of the evidence was made known to the court by
offer or was apparent from the context within which questions
were asked.
(b) Record of offer and ruling. The court may add any other or
further statement which shows the character of the evidence, the
form in which it was offered, the objection made, and the ruling
thereon. It may direct the making of an offer in question and
answer form.
/* Important to make these proffers to preserve the appellate
review of the exclusion of evidence. */
© Hearing of jury. In jury cases, proceedings shall be
conducted, to the extent practicable, so as to prevent
inadmissible evidence from being suggested to the jury by any
means, such as making statements or offers of proof or asking
questions in the hearing of the jury.
(d) Plain Error. Nothing in this rule precludes taking notice of
plain errors affecting substantial rights although they were not
brought to the attention of the court.
Rule 104. Preliminary Questions
(a) Questions of admissibility generally. Preliminary questions
concerning the qualification of a person to be a witness, the
existence of a privilege, or the admissibility of evidence shall
be determined by the court, subject to the provisions of
subdivision (b). In making its determination it is not bound by
the rules of evidence except those with respect to privileges.
(b) Relevancy conditioned on fact. When the relevancy of
evidence depends upon the fulfillment of a condition of fact, the
court shall admit it upon, or subject to, the introduction of
evidence sufficient to support a finding of the fulfillment of
the condition.
/* In criminal trials the "I'll tie this into the conspiracy
later rule." Of course this is a difficult point for the criminal
defense attorney since it is hard to "un-ring" bells. */
© Hearing of Jury. Hearings on the admissibility of
confessions shall in all cases be conducted out of the hearing of
the jury.
Hearings on other preliminary matters shall be so conducted when
the interests of justice require or, when an accused is a
witness, if he so requests.
(d) Testimony by accused. The accused does not, by testifying
upon a preliminary matter, subject himself to cross-examination
as to other issues in the case.
(e) Weight and Credibility. This rule does not limit the right
of a party to introduce before the jury evidence relevant to
weight or credibility.
Rule 105. Limited Admissibility
When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury accordingly.
/* Good luck. As stated in the initial comments to these rules,
they are rules for the inclusion of evidence. This rule is used
again and again to allow introduction of evidence which relates
to just one party to the jury under the hypothesis that curative
instructions, which this rule calls for, are sufficient to
prevent prejudicial overspill. */
Rule 106. Remainder of or Related Writings or Recorded Statements
When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require him at that
time to introduce any other part or any other writing or recorded
statement which ought in fairness to be considered
contemporaneously with it.
ARTICLE II. JUDICIAL NOTICE
Rule 201. Judicial Notice of Adjudicative Facts
(a) Scope of rule. This rule governs only judicial notice of
adjudicative facts.
(b) Kinds of facts. A judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.
© When discretionary. A court may take judicial notice,
whether requested or not.
(d) When mandatory. A court shall take judicial notice if
requested by a party and supplied with the necessary information.
(e) Opportunity to be heard. A party is entitled upon timely
request to an opportunity to be heard as to the propriety of
taking judicial notice and the tenor of the matter noticed. In
the absence of prior notification, the request may be made after
judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken at any
stage of the proceeding.
(g) Instructing jury. In a civil action or proceeding, the court
shall instruct the jury to accept as conclusive any fact
judicially noticed. In a criminal case, the court shall instruct
the jury that it may, but is not required to, accept as
conclusive any fact judicially noticed.
ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS & PROCEEDINGS
Rule 301. Presumptions in General in Civil Actions and Proceedings
In all civil actions and proceedings not otherwise provided for
by Act of Congress or by these rules, a presumption imposes on
the party against whom it is directed the burden of going forward
with evidence to rebut or meet the presumption, but does not
shift to such party the burden of proof in the sense of the risk
of nonpersuasion, which remains throughout the trial upon the
party on whom it was originally cast.
Rule 302. Applicability of State Law in Civil Actions and
Proceedings
In civil actions and proceedings, the effect of a presumption
respecting a fact which is an element of a claim or defense as to
which State law supplies the rule of decision is determined in
accordance with State law.
ARTICLE IV. RELEVANCY & ITS LIMITS
Rule 401. Definition of "Relevant Evidence"
"Relevant evidence" means evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.
Rule 402. Relevant Evidence Generally Admissible; Irrelevant
Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided
by the Constitution of the United States, by Act of Congress, by
these rules, or by other rules prescribed by the Supreme Court
pursuant to statutory authority. Evidence which is not relevant
is not admissible.
/* A general rule of inclusion of all "relevant evidence." */
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice,
Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
Rule 404. Character Evidence Not Admissible to Prove Conduct;
Exceptions; Other Crimes
(a) Character evidence generally. Evidence of a person's
character or a trait of his character is not admissible for the
purpose of proving that he acted in conformity therewith on a
particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his
character offered by an accused, or by the prosecution to rebut
the same;
(2) Character of victim. Evidence of a pertinent trait of
character of the victim of the crime offered by an accused, or by
the prosecution to rebut the same, or evidence of a character
trait of peacefulness of the victim offered by the prosecution in
a homicide case to rebut evidence that the victim was the first
aggressor;
(3) Character of witness. Evidence of the character of a
witness, as provided in rules 607, 608 and 609.
(b) Other crimes, wrongs, or acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show that he acted in conformity therewith. It
may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
/* The latter part of this section is used by prosecutors to
admit everything bad about the defendant on the idea that the
"motive" and "intent" of the defendant are always in issue. */
Rule 405. Methods of Proving Character
(a) Reputation or opinion. In all cases in which evidence of
character or a trait of character of a person is admissible,
proof may be made by testimony as to reputation or by testimony
in the form of an opinion. On cross-examination, inquiry is
allowable into relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which character
or a trait of character of a person is an essential element of a
charge, claim, or defense, proof may also be made of specific
instances of his conduct.
Rule 406. Habit; Routine Practice
Evidence of the habit of a person or of the routine practice of
an organization, whether corroborated or not and regardless of
the presence of eyewitnesses, is relevant to prove that the
conduct of the person or organization on a particular occasion
was in conformity with the habit or routine practice.
Rule 407. Subsequent Remedial Measures
When, after an event, measures are taken which, if taken
previously, would have made the event less likely to occur,
evidence of the subsequent measures is not admissible to prove
negligence or culpable conduct in connection with the event. 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.
/* A general rule that if someone fixes the hole in the sidewalk
after a suit is filed for a fall on a sidewalk that it is not
admissible as evidence of negligence, or else the sidewalks would
never get fixed. However, if the person says "it's not my
sidewalk that they may have fell on" then the fact that they paid
to fix the hole is relevant to prove their ownership or control
of that sidewalk. */
Rule 408. Compromise or Offers to Compromise
Evidence of (1) furnishing or offering or promising to furnish,
or
(2) accepting or offering or promising to accept, a valuable
consideration in compromising or attempting to compromise a claim
which was disputed as to either validity or amount, is not
admissible to prove liability for or invalidity of the claim or
its amount.
Evidence of conduct or statements made in compromise negotiations
is likewise not admissible. This rule does not require the
exclusion of any evidence otherwise discoverable merely because
it is presented in the course of compromise negotiations. This
rule also does not require exclusion when the evidence is offered
for another purpose, such as proving bias or prejudice of a
witness, negativing a contention of undue delay, or proving an
effort to obstruct a criminal investigation or prosecution.
Rule 409. Payment of Medical and Similar Expenses
Evidence of furnishing or offering or promising to pay medical,
hospital, or similar expenses occasioned by an injury is not
admissible to prove liability for the injury.
/* This is to encourage humanitarian payment of hospital bills.
*/
Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related
Statements
Except as otherwise provided in this rule, evidence of the
following is not, in any civil or criminal proceeding, admissible
against the defendant who made the plea or was a participant in
the plea discussions:
(1) a plea of guilt which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under
Rule 11 of the Federal Rules of Criminal Procedure or comparable
state procedure regarding either of the foregoing pleas; or
(4) any statement made in the course of plea discussions with an
attorney for the prosecuting authority which do not result in a
plea of guilty or which result in a plea of guilty later
withdrawn.
However, such a statement is admissible (i) in any proceeding
wherein another statement made in the course of the same plea or
plea discussions has been introduced and the statement ought in
fairness be considered contemporaneously with it, or (ii) in a
criminal proceeding for perjury or false statement if the
statement was made by the defendant under oath, on the record and
in the presence of counsel.
Rule 411. Liability Insurance
Evidence that a person was or was not insured against liability
is not admissible upon the issue whether he acted negligently or
otherwise wrongfully. The rule does not require the exclusion of
evidence of insurance against liability when offered for another
purpose, such as proof of agency, ownership, or control, or bias
or prejudice of a witness.
Rule 412. Rape Cases; Relevance of Victim's Past Behavior
(a) Notwithstanding any other provision of law, in a criminal
case in which a person is accused of rape or of assault with
intent to commit rape, reputation or opinion evidence of the past
sexual behavior of an alleged victim of such rape or assault is
not admissible.
(b) Notwithstanding any other provision of law, in a criminal
case in which a person is accused of rape or of assault with
intent to commit rape, evidence of a victim's past sexual
behavior other than reputation or opinion evidence is also not
admissible, unless such evidence other than reputation or opinion
evidence is -
(1) admitted in accordance with subdivisions ©(1) and ©(2)
and is constitutionally required to be admitted; or
(2) admitted in accordance with subdivision © and is evidence
of:
(A) past sexual behavior with persons other than the accused,
offered by the accused upon the issue of whether the accused was
or was not, with respect to the alleged victim, the source of
semen or injury; or
(B) past sexual behavior with the accused and is offered by the
accused upon the issue of whether the alleged victim consented to
the sexual behavior with respect to which rape or assault is
alleged.
©(1) If the person accused of committing rape or assault with
intent to commit rape intends to offer under subdivision (b)
evidence of specific instances of the alleged victim's past
sexual behavior, the accused shall make a written motion to offer
such evidence not later than fifteen days before the date on
which the trial in which such evidence is to be offered is
scheduled to begin, except that the court may allow the motion to
be made at a later date, including during trial, if the court
determines either that the evidence is newly discovered and could
not have been obtained earlier through the exercise of due
diligence or that the issue to which such evidence relates has
newly arisen in the case. Any motion made under this paragraph
shall be served on all other parties and on the alleged victim.
(2) The motion described in paragraph (1) shall be accompanied by
a written offer of proof. If the court determines that the offer
of proof contains evidence described in subdivision (b), the
court shall order a hearing in chambers to determine if such
evidence is admissible. At such hearing the parties may call
witnesses, including the alleged victim, and offer relevant
evidence. Notwithstanding subdivision (b) of rule 104, if the
relevancy of the evidence which the accused seeks to offer in the
trial depends upon the fulfillment of a condition of fact, the
court, at the hearing in chambers or at a subsequent hearing in
chambers scheduled for such purpose, shall accept evidence on the
issue of whether such condition of fact is fulfilled and shall
determine such issue.
(3) If the court determines on the basis of the hearing described
in paragraph (2) that the evidence which the accused seeks to
offer is relevant and that the probative value of such evidence
outweighs the danger of unfair prejudice, such evidence shall be
admissible in the trial to the extent an order made by court
specifies evidence which may be offered and areas with respect to
which the alleged victim may be examined and cross-examined.
(d) For purposes of this rule, the term "past sexual behavior"
means sexual behavior other than the sexual behavior with respect
to which rape or assault with intent to commit rape is alleged.
ARTICLE V. PRIVILEGES
Rule 501. General Rule
Except as otherwise required by the Constitution of the United
States or provided by Act of Congress or in rules prescribed by
the Supreme Court pursuant to statutory authority, the privilege
of a witness, person, government, State, or political subdivision
thereof shall be governed by the principles of the common law as
they may be interpreted by the courts of the United States in the
light of reason and experience. However, in civil actions and
proceedings, with respect to an element of a claim or defense as
to which State law supplies the rule of decision, the privilege
of a witness, person, government, State, or political subdivision
thereof shall be determined in accordance with State law.
ARTICLE VI. WITNESSES
Rule 601. General Rule of Competency
Every person is competent to be a witness except as otherwise
provided in these rules. However, in civil action and
proceedings, with respect to an element of a claim or defense as
to which State law supplies the rule of decision, the competency
of a witness shall be determined in accordance with State law.
Rule 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that he has personal
knowledge of the matter. Evidence to prove personal knowledge
may, but need not, consist of the testimony of the witness
himself. This rule is subject to the provisions of rule 703,
relating to opinion testimony by expert witness.
Rule 603. Oath or Affirmation
Before testifying, every witness shall be required to declare
that he will testify truthfully, by oath or affirmation
administered in a form calculated to awaken his conscience and
impress his mind with his duty to do so.
Rule 604. Interpreters
An interpreter is subject to the provisions of these rules
relating to qualification as an expert and the administration of
an oath or affirmation that he will make a true translation.
Rule 605. Competency of Judge as Witness
The judge presiding at the trial may not testify in that trial as
a witness. No objection need be made in order to preserve the
point.
Rule 606. Competency of Juror as Witness
(a) At the trial. A member of the jury may not testify as a
witness before that jury in the trial of the case in which he is
sitting as a juror. If he is called so to testify, the opposing
party shall be afforded an opportunity to object out of the
presence of the jury.
(b) Inquiry into validity of verdict or indictment. Upon an
inquiry into the validity of a verdict or indictment, a juror may
not testify as to any matter or statement occurring during the
course of the jury's deliberations or to the effect of anything
upon his or any other juror's mind or emotions as influencing him
to assent to or dissent from the verdict or indictment or
concerning his mental processes in connection therewith, except
that a juror may testify on the question whether extraneous
prejudicial information was improperly brought to the jury's
attention or whether any outside influence was improperly brought
to bear upon any juror. Nor may his affidavit or evidence of any
statement by him concerning a matter about which he would be
precluded from testifying be received for these purposes.
Rule 607. Who May Impeach
The credibility of a witness may be attacked by any party,
including the party calling him.
/* An important change over common law rules in which you could
only discredit your own witnesses in rare cases. */
Rule 608. Evidence of Character and Conduct of Witness
(a) Opinion and reputation evidence of character. The credibility
of a witness may be attacked or supported by evidence in the form
of opinion or reputation, but subject to these limitations: (1)
the evidence may refer only to character for truthfulness or
untruthfulness, and (2) evidence of truthful character is
admissible only after the character of the witness for
truthfulness has been attacked by opinion or reputation evidence
or otherwise.
(b) Specific instances of conduct. Specific instances of the
conduct of a witness, for the purpose of attacking or supporting
his credibility, other than conviction of crime as provided in
rule 609, may not be proved by extrinsic evidence. They may,
however, in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on
cross-examination of the witness
(1) concerning his character for truthfulness or untruthfulness,
or
(2) concerning the character for truthfulness or untruthfulness
of another witness as to which character the witness being
cross-examined has testified.
The giving of testimony, whether by an accused or by any other
witness, does not operate as a waiver of his privilege against
self- incrimination when examined with respect to matters which
relate only to credibility.
Rule 609. Impeachment by evidence of Conviction of Crime
(a) General rule. For the purpose of attacking the credibility
of a witness, evidence that he has been convicted of a crime
shall be admitted if elicited from him or established by public
record during cross-examination but only if the crime (1) was
punishable by death or imprisonment in excess of one year under
the law under which he was convicted, and the court determines
that the probative value of admitting this evidence outweighs its
prejudicial effect to the defendant, or (2) involved dishonesty
or false statement, regardless of the punishment.
(b) Time limit. Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed since
the date of the conviction or of the release of the witness from
the confinement imposed for that conviction, whichever is the
later date, unless the court determines, in the interests of
justice, that the probative value of the conviction supported by
specific facts and circumstances substantially outweighs its
prejudicial effect. However, evidence of a conviction more than
10 year old as calculated herein, is not admissible unless the
proponent gives to the adverse party sufficient advance written
notice of intent to use such evidence to provide the adverse
party with a fair opportunity to contest the use of such
evidence.
© Effect of pardon, annulment, or certificate of
rehabilitation. Evidence of a conviction is not admissible under
this rule if (1) the conviction has been the subject of a pardon,
annulment, certificate of rehabilitation, or other equivalent
procedure based on a finding of the rehabilitation of the person
convicted, and that person has not been convicted of a subsequent
crime which was punishable by death or imprisonment in excess of
one year, or (2) the conviction has been the subject of a pardon,
annulment, or other equivalent procedure based on a finding of
innocence.
(d) Juvenile adjudications. Evidence of juvenile adjudications is
generally not admissible under this rule. The court may, however,
in a criminal case allow evidence of a juvenile adjudication of a
witness other than the accused if conviction of the offense would
be admissible to attack the credibility of an adult and the court
is satisfied that admission in evidence is necessary for a fair
determination of the issue of guilt or innocence.
(e) Pendency of appeal. The pendency of an appeal therefrom does
not render evidence of a conviction inadmissible. Evidence of the
pendency of an appeal is admissible.
Rule 610. Religious Beliefs or Opinions
Evidence of the beliefs or opinions of a witness on matters of
religion is not admissible for the purpose of showing that by
reason of their nature his credibility is impaired or enhanced.
Rule 611. Mode and Order of Interrogation and Presentation
(a) Control by court. The court shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) protect witnesses
from harassment or undue embarrassment.
(b) Scope of cross-examination. Cross examination should be
limited to the subject matter of the direct examination and
matters affecting the credibility of the witness. The court may,
in the exercise of discretion, permit inquiry into additional
matters as if on direct examination.
© Leading questions. Leading questions should not be used on
the direct examination of a witness except as may be necessary to
develop his testimony. Ordinarily leading questions should be
permitted on cross-examination. When a party calls a hostile
witness, an adverse party, or a witness identified with an
adverse party, interrogation may be by leading questions.
Rule 612. Writing Used to Refresh Memory
Except as otherwise provided in criminal proceedings by section
3500 of title 18, United States Code, if a witness uses a writing
to refresh his memory for the purpose of testifying, either-
(1) while testifying, or
(2) before testifying, if the court in its discretion determines
it is necessary in the interests of justice, an adverse party is
entitled to have the writing produced at the hearing, to inspect
it, to cross-examine the witness thereon, and to introduce in
evidence those portions which relate to the testimony of the
witness. If it is claimed that the writing contains matters not
related to the subject matter of the testimony the court shall
examine the writing in camera, excise any portions not so
related, and order delivery of the remainder to the party
entitled thereto. Any portion withheld over objections shall be
preserved and made available to the appellate court in the event
of an appeal. If a writing is not produced or delivered pursuant
to order under this rule, the court shall make any order justice
requires, except that in criminal cases when the prosecution
elects not to comply, the order shall be one striking the
testimony or, if the court in its discretion determines that the
interests of justice so require, declaring a mistrial.
/* Witnesses in many cases ask for permission to look at their
notes, etc. this is especially true when a professional like a
doctor who has many patients or who is testifying on a technical
matter and needs to look at their notes; no permission is
required and use of notes is permitted, although the parties can
request seeing the notes, and in criminal cases the Jencks Act
may require production of such notes. */
Rule 613. Prior Statements of Witnesses
(a) Examining witness concerning prior statement. In examining a
witness concerning a prior statement made by him, whether written
or not, the statement need not be shown nor its contents
disclosed to him at that time, but on request the same shall be
shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of
witness. Extrinsic evidence of a prior inconsistent statement by
a witness is not admissible unless the witness is afforded an
opportunity to explain or deny the same and the opposite party is
afforded an opportunity to interrogate him thereon, or the
interests of justice otherwise require. This provision does not
apply to admissions of a party-opponent as defined in rule
801(d)(2).
Rule 614. Calling and Interrogation of Witness by Court
(a) Calling by court. The court may, on its own motion or at the
suggestion of a party, call witnesses, and all parties are
entitled to cross-examine witnesses thus called.
(b) Interrogation by court. The court may interrogate witnesses,
whether called by itself or by a party.
© Objections. Objections to the calling of witnesses by the
court or to interrogation by it may be made at the time or at the
next available opportunity when the jury is not present.
Rule 615. Exclusion of witnesses
At the request of a party the court shall order witnesses
excluded so that they cannot hear the testimony of other
witnesses and it may make the order of its own motion. This rule
does not authorize exclusion of
(1) a party who is a natural person, or (2) an officer or
employee of a party which is not a natural person designated as
its representative by its attorney, or (3) a person whose
presence is shown by a party to be essential to the presentation
of his cause.
/* We continue with Rule 701 to the conclusion in part two. */
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