[House Prints, 111th Congress]
[From the U.S. Government Publishing Office]
FEDERAL RULES
OF
EVIDENCE
____
DECEMBER 1, 2010
Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
111th Congress } {
2nd Session } COMMITTEE PRINT { No. 9
_____________________________________________________________________
FEDERAL RULES
OF
EVIDENCE
____
DECEMBER 1, 2010
Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2010
______________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: (202) 512-1800 Fax:
(202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
One Hundred Eleventh Congress
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN,
MAXINE WATERS, California California
WILLIAM D. DELAHUNT, Massachusetts DARRELL E. ISSA, California
STEVE COHEN, Tennessee J. RANDY FORBES, Virginia
HENRY C. ``HANK'' JOHNSON, Jr., Georgia STEVE KING, Iowa
PEDRO PIERLUISI, Puerto Rico TRENT FRANKS, Arizona
MIKE QUIGLEY, Illinois LOUIE GOHMERT, Texas
JUDY CHU, California JIM JORDAN, Ohio
TED DEUTCH, Florida TED POE, Texas
LUIS V. GUTIERREZ, Illinois JASON CHAFFETZ, Utah
TAMMY BALDWIN, Wisconsin TOM ROONEY, Florida
CHARLES A. GONZALEZ, Texas GREGG HARPER, Mississippi
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DANIEL MAFFEI, New York
JARED POLIS, Colorado
Perry Apelbaum, Majority Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
(ii)
FOREWORD
This document contains the Federal Rules of Evidence, as amended to
December 1, 2010. The rules were enacted by Public Law 93-595 (approved
January 2, 1975) and have been amended by Acts of Congress, and further
amended by the United States Supreme Court. This document has been
prepared by the Committee in response to the need for an official up-to-
date document containing the latest amendments to the rules.
For the convenience of the user, where a rule has been amended a
reference to the date the amendment was promulgated and the date the
amendment became effective follows the text of the rule.
The Committee on Rules of Practice and Procedure and the Advisory
Committee on the Federal Rules of Evidence, Judicial Conference of the
United States, prepared notes explaining the purpose and intent of the
amendments to the rules. The Committee Notes may be found in the
Appendix to Title 28, United States Code, following the particular rule
to which they relate.
Chairman, Committee on the Judiciary.
December 1, 2010.
(iii)
AUTHORITY FOR PROMULGATION OF RULES
AUTHORITY FOR PROMULGATION OF RULES
TITLE 28, UNITED STATES CODE
Sec. 2072. Rules of procedure and evidence; power to prescribe
(a) The Supreme Court shall have the power to prescribe general
rules of practice and procedure and rules of evidence for cases in the
United States district courts (including proceedings before magistrate
judges thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive
right. All laws in conflict with such rules shall be of no further force
or effect after such rules have taken effect.
(c) Such rules may define when a ruling of a district court is final
for the purposes of appeal under section 1291 of this title.
(Added Pub. L. 100-702, title IV, Sec. 401(a), Nov. 19, 1988, 102 Stat.
4648, eff. Dec. 1, 1988; amended Pub. L. 101-650, title III,
Sec. Sec. 315, 321, Dec. 1, 1990, 104 Stat. 5115, 5117.)
Sec. 2073. Rules of procedure and evidence; method of prescribing
(a)(1) The Judicial Conference shall prescribe and publish the
procedures for the consideration of proposed rules under this section.
(2) The Judicial Conference may authorize the appointment of
committees to assist the Conference by recommending rules to be
prescribed under sections 2072 and 2075 of this title. Each such
committee shall consist of members of the bench and the professional
bar, and trial and appellate judges.
(b) The Judicial Conference shall authorize the appointment of a
standing committee on rules of practice, procedure, and evidence under
subsection (a) of this section. Such standing committee shall review
each recommendation of any other committees so appointed and recommend
to the Judicial Conference rules of practice, procedure, and evidence
and such changes in rules proposed by a committee appointed under
subsection (a)(2) of this section as may be necessary to maintain
consistency and otherwise promote the interest of justice.
(c)(1) Each meeting for the transaction of business under this
chapter by any committee appointed under this section shall be open to
the public, except when the committee so meeting, in open session and
with a majority present, determines that it is in the public interest
that all or part of the remainder of the meeting on that day shall be
closed to the public, and states the reason for so closing the meeting.
Minutes of each meeting for the transaction of business under this
chapter shall be maintained by the committee and made available to the
public, except that any portion of such minutes, relating to a closed
meeting and made available to the public, may contain such deletions as
may be necessary to avoid frustrating the purposes of closing the
meeting.
(2) Any meeting for the transaction of business under this chapter,
by a committee appointed under this section, shall be preceded by
sufficient notice to enable all interested persons to attend.
(d) 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.
(e) Failure to comply with this section does not invalidate a rule
prescribed under section 2072 or 2075 of this title.
(Added Pub. L. 100-702, title IV, Sec. 401(a), Nov. 19, 1988, 102 Stat.
4649, eff. Dec. 1, 1988; amended Pub. L. 103-394, title I, Sec. 104(e),
Oct. 22, 1994, 108 Stat. 4110.)
Sec. 2074. Rules of procedure and evidence; submission to Congress;
effective date
(a) The Supreme Court shall transmit to the Congress not later than
May 1 of the year in which a rule prescribed under section 2072 is to
become effective a copy of the proposed rule. Such rule shall take
effect no earlier than December 1 of the year in which such rule is so
transmitted unless otherwise provided by law. The Supreme Court may fix
the extent such rule shall apply to proceedings then pending, except
that the Supreme Court shall not require the application of such rule to
further proceedings then pending to the extent that, in the opinion of
the court in which such proceedings are pending, the application of such
rule in such proceedings would not be feasible or would work injustice,
in which event the former rule applies.
(b) Any such rule creating, abolishing, or modifying an evidentiary
privilege shall have no force or effect unless approved by Act of
Congress.
(Added Pub. L. 100-702, title IV, Sec. 401(a), Nov. 19, 1988, 102 Stat.
4649, eff. Dec. 1, 1988.)
Sec. 2075. Bankruptcy rules
The Supreme Court shall have the power to prescribe by general
rules, the forms of process, writs, pleadings, and motions, and the
practice and procedure in cases under title 11.
Such rules shall not abridge, enlarge, or modify any substantive
right.
The Supreme Court shall transmit to Congress not later than May 1 of
the year in which a rule prescribed under this section is to become
effective a copy of the proposed rule. The rule shall take effect no
earlier than December 1 of the year in which it is transmitted to
Congress unless otherwise provided by law.
The bankruptcy rules promulgated under this section shall prescribe
a form for the statement required under section 707(b)(2)(C) of title 11
and may provide general rules on the content of such statement.
(Added Pub. L. 88-623, Sec. 1, Oct. 3, 1964, 78 Stat. 1001; amended Pub.
L. 95-598, title II, Sec. 247, Nov. 6, 1978, 92 Stat. 2672; Pub. L. 103-
394, title I, Sec. 104(f), Oct. 22, 1994, 108 Stat. 4110; Pub. L. 109-8,
title XII, Sec. 1232, Apr. 20, 2005, 119 Stat. 202.)
HISTORICAL NOTE
HISTORICAL NOTE
The Supreme Court prescribes Federal Rules of Evidence pursuant to
section 2072 of Title 28, United States Code, as enacted by Title IV
``Rules Enabling Act'' of Pub. L. 100-702 (approved November 19, 1988,
102 Stat. 4648), effective December 1, 1988, and section 2075 of Title
28. Pursuant to section 2074 of Title 28, the Supreme Court transmits to
Congress (not later than May 1 of the year in which a rule prescribed
under section 2072 is to become effective) a copy of the proposed rule.
The rule takes effect no earlier than December 1 of the year in which
the rule is transmitted unless otherwise provided by law.
Pursuant to sections 3402, 3771, and 3772 of Title 18, United States
Code, and sections 2072 and 2075 of Title 28, United States Code, as
then in effect, the Supreme Court through the Chief Justice submitted
Federal Rules of Evidence to Congress on February 5, 1973 (409 U.S.
1132; Cong. Rec., vol. 119, pt. 3, p. 3247, Exec. Comm. 359, H. Doc. 93-
46). To allow additional time for Congress to review the proposed rules,
Public Law 93-12 (approved March 30, 1973, 87 Stat. 9) provided that the
proposed rules ``shall have no force or effect except to the extent, and
with such amendments, as they may be expressly approved by Act of
Congress''.
Public Law 93-595 \1\ (approved January 2, 1975, 88 Stat. 1926)
enacted the Federal Rules of Evidence proposed by the Supreme Court,
with amendments made by Congress, to be effective July 1, 1975.
---------------------------------------------------------------------------
\1\ LEGISLATIVE HISTORY:
HOUSE REPORTS: No. 93-650 (Comm. on the Judiciary) and No. 93-1597
(Comm. of Conference).
SENATE REPORT No. 93-1277 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 120 (1974):
Jan. 30, Feb. 6, considered and passed House.
Nov. 21, 22, considered and passed Senate, amended.
Dec. 16, Senate agreed to conference report.
Dec. 17, 18, House agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 11, No. 1:
Jan. 3, 1975, Presidential statement.
---------------------------------------------------------------------------
Section 1 of Public Law 94-113 (approved October 16, 1975, 89 Stat.
576) added clause (C) to Rule 801(d)(1), effective October 31, 1975.
Section 1 of Public Law 94-149 (approved December 12, 1975, 89 Stat.
805) enacted technical amendments which affected the Table of Contents
and Rules 410, 606(b), 803(23), 804(b)(3), and 1101(e).
Section 2 of Public Law 95-540 (approved October 28, 1978, 92 Stat.
2046) added Rule 412 and inserted item 412 in the Table of Contents. The
amendments apply to trials that begin more than thirty days after
October 28, 1978.
Section 251 of Public Law 95-598 (approved November 6, 1978, 92
Stat. 2673) amended Rule 1101(a) and (b) by striking out ``, referees in
bankruptcy,'' and by substituting ``title 11, United States Code'' for
``the Bankruptcy Act'', effective October 1, 1979, pursuant to section
402(c) of Public Law 95-598.
Section 252 of Public Law 95-598 would have amended Rule 1101(a) by
inserting ``the United States Bankruptcy Courts,'' immediately after
``the United States district courts,'', effective April 1, 1984,
pursuant to section 402(b) of Public Law 95-598. However, following a
series of amendments (extending the April 1, 1984, effective date) by
Public Laws 98-249, Sec. 1(a), 98-271, Sec. 1(a), 98-299, Sec. 1(a), 98-
325, Sec. 1(a), and 98-353, Sec. 121(a), section 402(b) of Public Law
95-598 was amended by section 113 of Public Law 98-353 to provide that
the amendment ``shall not be effective''.
An amendment to Rule 410 was proposed by the Supreme Court by order
dated April 30, 1979, transmitted to Congress by the Chief Justice on
the same day (441 U.S. 970, 1007; Cong. Rec., vol. 125, pt. 8, p. 9366,
Exec. Comm. 1456; H. Doc. 96-112), and was to be effective August 1,
1979. Public Law 96-42 (approved July 31, 1979, 93 Stat. 326) delayed
the effective date of the amendment to Rule 410 until December 1, 1980,
or until and to the extent approved by Act of Congress, whichever is
earlier. In the absence of further action by Congress, the amendment to
Rule 410 became effective December 1, 1980.
Sections 142 and 402 of Public Law 97-164 (approved April 2, 1982,
96 Stat. 45, 57) amended Rule 1101(a), effective October 1, 1982.
Section 406 of Public Law 98-473 (approved October 12, 1984, 98
Stat. 2067) amended Rule 704.
Additional amendments were adopted by the Court by order dated March
2, 1987, transmitted to Congress by the Chief Justice on the same day
(480 U.S. 1023; Cong. Rec., vol. 133, pt. 4, p. 4484, Exec. Comm. 713;
H. Doc. 100-41), and became effective October 1, 1987. The amendments
affected Rules 101, 104(c), (d), 106, 404(a)(1), (b), 405(b), 411, 602
to 604, 606, 607, 608(b), 609(a), 610, 611(c), 612, 613, 615, 701, 703,
705, 706(a), 801(a), (d), 803(5), (18), (19), (21), (24), 804(a),
(b)(2), (3), (5), 806, 902(2), (3), 1004(3), 1007, and 1101(a).
Additional amendments were adopted by the Court by order dated April
25, 1988, transmitted to Congress by the Chief Justice on the same day
(485 U.S. 1049; Cong. Rec., vol. 134, pt. 7, p. 9154, Exec. Comm. 3517;
H. Doc. 100-187), and became effective November 1, 1988. The amendments
affected Rules 101, 602, 608(b), 613(b), 615, 902(3), and 1101(a), (e).
Sections 7046 and 7075 of Public Law 100-690 (approved November 18,
1988, 102 Stat. 4400, 4405) amended the Tables of Contents and Rules
412, 615, 804(a)(5), and 1101(a). Section 7075(a) of Public Law 100-690,
which directed the amendment of Rule 615 by inserting ``a'' before
``party which is not a natural person.'', could not be executed because
``party which is not a natural person.'' did not appear. However, the
word ``a'' was inserted by the intervening amendment adopted by the
Court by order dated April 25, 1988, effective November 1, 1988. Section
7075(c)(1) of Public Law 100-690, which directed the amendment of Rule
1101(a) by striking ``Rules'' and inserting ``rules'', could not be
executed because of the intervening amendment adopted by the Court by
order dated April 25, 1988, effective November 1, 1988.
An additional amendment was adopted by the Court by order dated
January 26, 1990, transmitted to Congress by the Chief Justice on the
same day (493 U.S. 1175; Cong. Rec., vol. 136, pt. 1, p. 662, Exec.
Comm. 2370; H. Doc. 101-142), and became effective December 1, 1990. The
amendment affected Rule 609(a).
Additional amendments were adopted by the Court by order dated April
30, 1991, transmitted to Congress by the Chief Justice on the same day
(500 U.S. 1001; Cong. Rec., vol. 137, pt. 7, p. 9721, Ex. Comm. 1189; H.
Doc. 102-76), and became effective December 1, 1991. The amendments
affected Rules 404(b) and 1102.
Additional amendments were adopted by the Court by order dated April
22, 1993, transmitted to Congress by the Chief Justice on the same day
(507 U.S. 1187; Cong. Rec., vol. 139, pt. 6, p. 8127, Ex. Comm. 1104; H.
Doc. 103-76), and became effective December 1, 1993. The amendments
affected Rules 101, 705, and 1101(a), (e).
An additional amendment was adopted by the Court by order dated
April 29, 1994, and transmitted to Congress by the Chief Justice on the
same day (511 U.S. 1187; Cong. Rec., vol. 140, pt. 7, p. 8903, Ex. Comm.
3085; H. Doc. 103-250). The amendment affected Rule 412 and was to
become effective December 1, 1994. Section 40141(a) of Public Law 103-
322 (approved September 13, 1994, 108 Stat. 1918) provided that such
amendment would take effect on December 1, 1994, but with the general
amendment of Rule 412 made by section 40141(b) of Public Law 103-322.
Section 320935(a) of Public Law 103-322 (approved September 13,
1994, 108 Stat. 2135) amended the Federal Rules of Evidence by adding
Rules 413 to 415, with provisions in section 320935(b)-(e) of Public Law
103-322 relating to the effective date and application of such rules.
Pursuant to Pub. L. 103-322, Sec. 320935(c), the Judicial Conference
transmitted a report to Congress on February 9, 1995, containing
recommendations different from the amendments made by Pub. L. 103-322,
Sec. 320935(a). Congress did not adopt the recommendations submitted or
provide otherwise by law. Accordingly, Rules 413 to 415, as so added,
became effective on July 9, 1995.
Additional amendments were adopted by the Court by order dated April
11, 1997, transmitted to Congress by the Chief Justice on the same day
(520 U.S. 1323; Cong. Rec., vol. 143, pt. 4, p. 5550, Ex. Comm. 2798; H.
Doc. 105-69), and became effective December 1, 1997. The amendments
affected Rules 407, 801, 803, 804, and 806 and added Rule 807.
Additional amendments were adopted by the Court by order dated April
24, 1998, transmitted to Congress by the Chief Justice on the same day
(523 U.S. 1235; Cong. Rec., vol. 144, pt. 6, p. 8151, Ex. Comm. 8996 to
Ex. Comm. 8998; H. Doc. 105-268), and became effective December 1, 1998.
The amendments affected Rule 615.
Additional amendments were adopted by the Court by order dated April
17, 2000, transmitted to Congress by the Chief Justice on the same day
(529 U.S. 1189; Cong. Rec., vol. 146, pt. 5, p. 6328, Ex. Comm. 7333; H.
Doc. 106-225), and became effective December 1, 2000. The amendments
affected Rules 103, 404, 701, 702, 703, 803, and 902.
An additional amendment was adopted by the Court by order dated
March 27, 2003, transmitted to Congress by the Chief Justice on the same
day (538 U.S. 1097; Cong. Rec., vol. 149, pt. 6, p. 7689, Ex. Comm.
1494; H. Doc. 108-57), and became effective December 1, 2003. The
amendment affected Rule 608.
Additional amendments were adopted by the Court by order dated April
12, 2006, transmitted to Congress by the Chief Justice on the same day
(547 U.S. 1281; Cong. Rec., vol. 152, pt. 6, p. 7213, Ex. Comm. 7320; H.
Doc. 109-108), and became effective December 1, 2006. The amendments
affected Rules 404, 408, 606, and 609.
Section 1 of Public Law 110-322 (approved September 19, 2008, 122
Stat. 3537) added Rule 502 and inserted item 502 in the Table of
Contents. The amendments apply in all proceedings commenced after
September 19, 2008, and, insofar as is just and practicable, in all
proceedings pending on that date.
An additional amendment was adopted by the Court by order dated
April 28, 2010, transmitted to Congress by the Chief Justice on the same
day (559 U.S.----; Cong. Rec., vol. 156, p. H3481, Daily Issue, Ex.
Comm. 7475; H. Doc. 111-113), and became effective December 1, 2010. The
amendment affected Rule 804.
Committee Notes
Committee Notes prepared by the Committee on Rules of Practice and
Procedure and the Advisory Committee on the Federal Rules of Evidence,
Judicial Conference of the United States, explaining the purpose and
intent of the amendments are set out in the Appendix to Title 28, United
States Code, following the particular rule to which they relate. In
addition, the notes are set out in the House documents listed above.
CONTENTS
TABLE OF CONTENTS
____
Page
Foreword...................................................... iii
Authority for promulgation of rules........................... v
Historical note............................................... vii
RULES
Article I. General Provisions:
Rule 101. Scope................................................1
Rule 102. Purpose and construction.............................1
Rule 103. Rulings on evidence..................................1
Rule 104. Preliminary questions................................2
Rule 105. Limited admissibility................................2
Rule 106. Remainder of or related writings or recorded
statements.....................................2
Article II. Judicial Notice:
Rule 201. Judicial notice of adjudicative facts................2
Article III. Presumptions in Civil Actions and Proceedings:
Rule 301. Presumptions in general in civil actions and
proceedings....................................3
Rule 302. Applicability of State law in civil actions and
proceedings....................................3
Article IV. Relevancy and Its Limits:
Rule 401. Definition of ``relevant evidence''..................3
Rule 402. Relevant evidence generally admissible; irrelevant
evidence inadmissible..........................3
Rule 403. Exclusion of relevant evidence on grounds of
prejudice, confusion, or waste of time.........4
Rule 404. Character evidence not admissible to prove conduct;
exceptions; other crimes.......................4
Rule 405. Methods of proving character.........................4
Rule 406. Habit; routine practice..............................5
Rule 407. Subsequent remedial measures.........................5
Rule 408. Compromise and offers to compromise..................5
Rule 409. Payment of medical and similar expenses..............5
Rule 410. Inadmissibility of pleas, plea discussions, and
related statements.............................5
Rule 411. Liability insurance..................................6
Rule 412. Sex offense cases; relevance of alleged victim's past
sexual behavior or alleged sexual predispositio6
Rule 413. Evidence of similar crimes in sexual assault cases...7
Rule 414. Evidence of similar crimes in child molestation cases8
Rule 415. Evidence of similar acts in civil cases concerning
sexual assault or child molestation............8
Article V. Privileges:
Rule 501. General rule.........................................8
Rule 502. Attorney-client privilege and work product;
limitations on waiver..........................9
Article VI. Witnesses:
Rule 601. General rule of competency..........................10
Rule 602. Lack of personal knowledge..........................10
Rule 603. Oath or affirmation.................................10
Rule 604. Interpreters........................................10
Rule 605. Competency of judge as witness......................10
Rule 606. Competency of juror as witness......................10
Rule 607. Who may impeach.....................................11
Rule 608. Evidence of character and conduct of witness........11
Rule 609. Impeachment by evidence of conviction of crime......11
Rule 610. Religious beliefs or opinions.......................12
Rule 611. Mode and order of interrogation and presentation....13
Article VI. Witnesses--Continued
Page
Rule 612. Writing used to refresh memory......................13
Rule 613. Prior statements of witnesses.......................13
Rule 614. Calling and interrogation of witnesses by court.....14
Rule 615. Exclusion of witnesses..............................14
Article VII. Opinions and Expert Testimony:
Rule 701. Opinion testimony by lay witnesses..................14
Rule 702. Testimony by experts................................14
Rule 703. Bases of opinion testimony by experts...............15
Rule 704. Opinion on ultimate issue...........................15
Rule 705. Disclosure of facts or data underlying expert opinio15
Rule 706. Court appointed experts.............................15
Article VIII. Hearsay:
Rule 801. Definitions.........................................16
Rule 802. Hearsay rule........................................17
Rule 803. Hearsay exceptions; availability of declarant
immaterial....................................17
Rule 804. Hearsay exceptions; declarant unavailable...........20
Rule 805. Hearsay within hearsay..............................21
Rule 806. Attacking and supporting credibility of declarant...21
Rule 807. Residual exception..................................21
Article IX. Authentication and Identification:
Rule 901. Requirement of authentication or identification.....22
Rule 902. Self-authentication.................................23
Rule 903. Subscribing witness' testimony unnecessary..........25
Article X. Contents of Writings, Recordings, and Photographs:
Rule 1001. Definitions........................................25
Rule 1002. Requirement of original............................25
Rule 1003. Admissibility of duplicates........................25
Rule 1004. Admissibility of other evidence of contents........25
Rule 1005. Public records.....................................26
Rule 1006. Summaries..........................................26
Rule 1007. Testimony or written admission of party............26
Rule 1008. Functions of court and jury........................26
Article XI. Miscellaneous Rules:
Rule 1101. Applicability of rules.............................27
Rule 1102. Amendments.........................................28
Rule 1103. Title..............................................28
FEDERAL RULES OF EVIDENCE
FEDERAL RULES OF EVIDENCE
Effective July 1, 1975, as amended to December 1, 2010
ARTICLE I. GENERAL PROVISIONS
Rule 101
. Scope___________________________________________________________
These rules govern proceedings in the courts of the United States
and before the United States bankruptcy judges and United States
magistrate judges, to the extent and with the exceptions stated in rule
1101.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1,
1988; Apr. 22, 1993, eff. Dec. 1, 1993.)
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 of 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.
Once the court makes a definitive ruling on the record admitting or
excluding evidence, either at or before trial, a party need not renew an
objection or offer of proof to preserve a claim of error for appeal.
(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.
(c) 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.
(As amended Apr. 17, 2000, eff. Dec. 1, 2000.)
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.
(c) 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 and so requests.
(d) Testimony by accused.--The accused does not, by testifying upon
a preliminary matter, become subject 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.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
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.
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 the introduction at that time
of any other part or any other writing or recorded statement which ought
in fairness to be considered contemporaneously with it.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
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.
(c) 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 AND 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 AND 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.
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 character is not admissible for the purpose of proving
action in conformity therewith on a particular occasion, except:
(1) Character of accused.--In a criminal case, evidence of
a pertinent trait of character offered by an accused, or by the
prosecution to rebut the same, or if evidence of a trait of
character of the alleged victim of the crime is offered by an
accused and admitted under Rule 404(a)(2), evidence of the same
trait of character of the accused offered by the prosecution;
(2) Character of alleged victim.--In a criminal case, and
subject to the limitations imposed by Rule 412, evidence of a
pertinent trait of character of the alleged 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 alleged
victim offered by the prosecution in a homicide case to rebut
evidence that the alleged 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 action 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, provided that upon request by the accused, the prosecution in
a criminal case shall provide reasonable notice in advance of trial, or
during trial if the court excuses pretrial notice on good cause shown,
of the general nature of any such evidence it intends to introduce at
trial.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 30, 1991, eff. Dec. 1,
1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1,
2006.)
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 that
person's conduct.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
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 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 or 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.
(As amended Apr. 11, 1997, eff. Dec. 1, 1997.)
Rule 408
. Compromise and Offers to Compromise_____________________________
(a) Prohibited uses.--Evidence of the following is not admissible
on behalf of any party, when offered to prove liability for, invalidity
of, or amount of a claim that was disputed as to validity or amount, or
to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish--or
accepting or offering or promising to accept--a valuable
consideration in compromising or attempting to compromise the
claim; and
(2) conduct or statements made in compromise negotiations
regarding the claim, except when offered in a criminal case and
the negotiations related to a claim by a public office or agency
in the exercise of regulatory, investigative, or enforcement
authority.
(b) Permitted uses.--This rule does not require exclusion if the
evidence is offered for purposes not prohibited by subdivision (a).
Examples of permissible purposes include proving a witness's bias or
prejudice; negating a contention of undue delay; and proving an effort
to obstruct a criminal investigation or prosecution.
(As amended Apr. 12, 2006, eff. Dec. 1, 2006.)
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.
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 guilty 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.
(As amended Dec. 12, 1975; Apr. 30, 1979, eff. Dec. 1, 1980.)
Rule 411
. Liability Insurance_____________________________________________
Evidence that a person was or was not insured against liability is
not admissible upon the issue whether the person acted negligently or
otherwise wrongfully. This 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.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
Rule 412
. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual
Behavior or Alleged Sexual Predisposition_______________________________
(a) Evidence Generally Inadmissible.--The following evidence is not
admissible in any civil or criminal proceeding involving alleged sexual
misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim
engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim's sexual
predisposition.
(b) Exceptions.
(1) In a criminal case, the following evidence is admissible, if
otherwise admissible under these rules:
(A) evidence of specific instances of sexual behavior by the
alleged victim offered to prove that a person other than the
accused was the source of semen, injury or other physical
evidence;
(B) evidence of specific instances of sexual behavior by the
alleged victim with respect to the person accused of the sexual
misconduct offered by the accused to prove consent or by the
prosecution; and
(C) evidence the exclusion of which would violate the
constitutional rights of the defendant.
(2) In a civil case, evidence offered to prove the sexual behavior
or sexual predisposition of any alleged victim is admissible if it is
otherwise admissible under these rules and its probative value
substantially outweighs the danger of harm to any victim and of unfair
prejudice to any party. Evidence of an alleged victim's reputation is
admissible only if it has been placed in controversy by the alleged
victim.
(c) Procedure To Determine Admissibility.
(1) A party intending to offer evidence under subdivision (b) must--
(A) file a written motion at least 14 days before trial
specifically describing the evidence and stating the purpose for
which it is offered unless the court, for good cause requires a
different time for filing or permits filing during trial; and
(B) serve the motion on all parties and notify the alleged
victim or, when appropriate, the alleged victim's guardian or
representative.
(2) Before admitting evidence under this rule the court must conduct
a hearing in camera and afford the victim and parties a right to attend
and be heard. The motion, related papers, and the record of the hearing
must be sealed and remain under seal unless the court orders otherwise.
(As added Oct. 28, 1978, eff. Nov. 28, 1978; amended Nov. 18, 1988; Apr.
29, 1994, eff. Dec. 1, 1994; Sept. 13, 1994, eff. Dec. 1, 1994.)
Rule 413
. Evidence of Similar Crimes in Sexual Assault Cases______________
(a) In a criminal case in which the defendant is accused of an
offense of sexual assault, evidence of the defendant's commission of
another offense or offenses of sexual assault is admissible, and may be
considered for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence
under this rule, the attorney for the Government shall disclose the
evidence to the defendant, including statements of witnesses or a
summary of the substance of any testimony that is expected to be
offered, at least fifteen days before the scheduled date of trial or at
such later time as the court may allow for good cause.
(c) This rule shall not be construed to limit the admission or
consideration of evidence under any other rule.
(d) For purposes of this rule and Rule 415, ``offense of sexual
assault'' means a crime under Federal law or the law of a State (as
defined in section 513 of title 18, United States Code) that involved--
(1) any conduct proscribed by chapter 109A of title 18,
United States Code;
(2) contact, without consent, between any part of the
defendant's body or an object and the genitals or anus of
another person;
(3) contact, without consent, between the genitals or anus
of the defendant and any part of another person's body;
(4) deriving sexual pleasure or gratification from the
infliction of death, bodily injury, or physical pain on another
person; or
(5) an attempt or conspiracy to engage in conduct described
in paragraphs (1)-(4).
(Added Sept. 13, 1994, eff. July 9, 1995.)
Rule 414
. Evidence of Similar Crimes in Child Molestation Cases___________
(a) In a criminal case in which the defendant is accused of an
offense of child molestation, evidence of the defendant's commission of
another offense or offenses of child molestation is admissible, and may
be considered for its bearing on any matter to which it is relevant.
(b) In a case in which the Government intends to offer evidence
under this rule, the attorney for the Government shall disclose the
evidence to the defendant, including statements of witnesses or a
summary of the substance of any testimony that is expected to be
offered, at least fifteen days before the scheduled date of trial or at
such later time as the court may allow for good cause.
(c) This rule shall not be construed to limit the admission or
consideration of evidence under any other rule.
(d) For purposes of this rule and Rule 415, ``child'' means a person
below the age of fourteen, and ``offense of child molestation'' means a
crime under Federal law or the law of a State (as defined in section 513
of title 18, United States Code) that involved--
(1) any conduct proscribed by chapter 109A of title 18,
United States Code, that was committed in relation to a child;
(2) any conduct proscribed by chapter 110 of title 18,
United States Code;
(3) contact between any part of the defendant's body or an
object and the genitals or anus of a child;
(4) contact between the genitals or anus of the defendant
and any part of the body of a child;
(5) deriving sexual pleasure or gratification from the
infliction of death, bodily injury, or physical pain on a child;
or
(6) an attempt or conspiracy to engage in conduct described
in paragraphs (1)-(5).
(Added Sept. 13, 1994, eff. July 9, 1995.)
Rule 415
. Evidence of Similar Acts in Civil Cases Concerning Sexual
Assault or Child Molestation____________________________________________
(a) In a civil case in which a claim for damages or other relief is
predicated on a party's alleged commission of conduct constituting an
offense of sexual assault or child molestation, evidence of that party's
commission of another offense or offenses of sexual assault or child
molestation is admissible and may be considered as provided in Rule 413
and Rule 414 of these rules.
(b) A party who intends to offer evidence under this Rule shall
disclose the evidence to the party against whom it will be offered,
including statements of witnesses or a summary of the substance of any
testimony that is expected to be offered, at least fifteen days before
the scheduled date of trial or at such later time as the court may allow
for good cause.
(c) This rule shall not be construed to limit the admission or
consideration of evidence under any other rule.
(Added Sept. 13, 1994, eff. July 9, 1995.)
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.
Rule 502
. Attorney-Client Privilege and Work Product; Limitations on
Waiver__________________________________________________________________
The following provisions apply, in the circumstances set out, to
disclosure of a communication or information covered by the attorney-
client privilege or work-product protection.
(a) Disclosure made in a Federal proceeding or to a Federal office
or agency; scope of a waiver.--When the disclosure is made in a Federal
proceeding or to a Federal office or agency and waives the attorney-
client privilege or work-product protection, the waiver extends to an
undisclosed communication or information in a Federal or State
proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or
information concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent disclosure.--When made in a Federal proceeding or to
a Federal office or agency, the disclosure does not operate as a waiver
in a Federal or State proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took
reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the
error, including (if applicable) following Federal Rule of Civil
Procedure 26(b)(5)(B).
(c) Disclosure made in a State proceeding.--When the disclosure is
made in a State proceeding and is not the subject of a State-court order
concerning waiver, the disclosure does not operate as a waiver in a
Federal proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been
made in a Federal proceeding; or
(2) is not a waiver under the law of the State where the
disclosure occurred.
(d) Controlling effect of a court order.--A Federal court may order
that the privilege or protection is not waived by disclosure connected
with the litigation pending before the court--in which event the
disclosure is also not a waiver in any other Federal or State
proceeding.
(e) Controlling effect of a party agreement.--An agreement on the
effect of disclosure in a Federal proceeding is binding only on the
parties to the agreement, unless it is incorporated into a court order.
(f) Controlling effect of this rule.--Notwithstanding Rules 101 and
1101, this rule applies to State proceedings and to Federal court-
annexed and Federal court-mandated arbitration proceedings, in the
circumstances set out in the rule. And notwithstanding Rule 501, this
rule applies even if State law provides the rule of decision.
(g) Definitions.--In this rule:
(1) ``attorney-client privilege'' means the protection that
applicable law provides for confidential attorney-client
communications; and
(2) ``work-product protection'' means the protection that
applicable law provides for tangible material (or its intangible
equivalent) prepared in anticipation of litigation or for trial.
(As added Sept. 19, 2008.)
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 actions 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 the witness has personal knowledge
of the matter. Evidence to prove personal knowledge may, but need not,
consist of the witness' own testimony. This rule is subject to the
provisions of rule 703, relating to opinion testimony by expert
witnesses.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1,
1988.)
Rule 603
. Oath or Affirmation_____________________________________________
Before testifying, every witness shall be required to declare that
the witness will testify truthfully, by oath or affirmation administered
in a form calculated to awaken the witness' conscience and impress the
witness' mind with the duty to do so.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
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 to make a true translation.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
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 the juror is sitting.
If the juror 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 that or any other
juror's mind or emotions as influencing the juror to assent to or
dissent from the verdict or indictment or concerning the juror's mental
processes in connection therewith. But a juror may testify about (1)
whether extraneous prejudicial information was improperly brought to the
jury's attention, (2) whether any outside influence was improperly
brought to bear upon any juror, or (3) whether there was a mistake in
entering the verdict onto the verdict form. A juror's affidavit or
evidence of any statement by the juror may not be received on a matter
about which the juror would be precluded from testifying.
(As amended Dec. 12, 1975; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 12,
2006, eff. Dec. 1, 2006.)
Rule 607
. Who May Impeach_________________________________________________
The credibility of a witness may be attacked by any party, including
the party calling the witness.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
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 the
witness' character for truthfulness, 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 the witness' 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 the accused's or the witness'
privilege against self-incrimination when examined with respect to
matters that relate only to character for truthfulness.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1,
1988; Mar. 27, 2003, eff. Dec. 1, 2003.)
Rule 609
. Impeachment by Evidence of Conviction of Crime__________________
(a) General rule.--For the purpose of attacking the character for
truthfulness of a witness,
(1) evidence that a witness other than an accused has been
convicted of a crime shall be admitted, subject to Rule 403, if
the crime was punishable by death or imprisonment in excess of
one year under the law under which the witness was convicted,
and evidence that an accused has been convicted of such a crime
shall be admitted if the court determines that the probative
value of admitting this evidence outweighs its prejudicial
effect to the accused; and
(2) evidence that any witness has been convicted of a crime
shall be admitted regardless of the punishment, if it readily
can be determined that establishing the elements of the crime
required proof or admission of an act of dishonesty or false
statement by the witness.
(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 years 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.
(c) 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 that 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.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Jan. 26, 1990, eff. Dec. 1,
1990; Apr. 12, 2006, eff. Dec. 1, 2006.)
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 the witness' credibility is impaired or enhanced.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
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.
(c) Leading questions.--Leading questions should not be used on the
direct examination of a witness except as may be necessary to develop
the witness' 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.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
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
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.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
Rule 613
. Prior Statements of Witnesses___________________________________
(a) Examining witness concerning prior statement.--In examining a
witness concerning a prior statement made by the witness, whether
written or not, the statement need not be shown nor its contents
disclosed to the witness 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 the witness 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).
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1,
1988.)
Rule 614
. Calling and Interrogation of Witnesses 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.
(c) 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 the party's cause, or (4) a person
authorized by statute to be present.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1,
1988; Nov. 18, 1988; Apr. 24, 1998, eff. Dec. 1, 1998.)
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY
Rule 701
. Opinion Testimony by Lay Witnesses______________________________
If the witness is not testifying as an expert, the witness'
testimony in the form of opinions or inferences is limited to those
opinions or inferences which are (a) rationally based on the perception
of the witness, and (b) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue, and (c) not based on
scientific, technical, or other specialized knowledge within the scope
of Rule 702.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec. 1,
2000.)
Rule 702
. Testimony by Experts____________________________________________
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based upon sufficient facts or data,
(2) the testimony is the product of reliable principles and methods, and
(3) the witness has applied the principles and methods reliably to the
facts of the case.
(As amended Apr. 17, 2000, eff. Dec. 1, 2000.)
Rule 703
. Bases of Opinion Testimony by Experts___________________________
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon
the subject, the facts or data need not be admissible in evidence in
order for the opinion or inference to be admitted. Facts or data that
are otherwise inadmissible shall not be disclosed to the jury by the
proponent of the opinion or inference unless the court determines that
their probative value in assisting the jury to evaluate the expert's
opinion substantially outweighs their prejudicial effect.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec. 1,
2000.)
Rule 704
. Opinion on Ultimate Issue_______________________________________
(a) Except as provided in subdivision (b), testimony in the form of
an opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of
fact.
(b) No expert witness testifying with respect to the mental state or
condition of a defendant in a criminal case may state an opinion or
inference as to whether the defendant did or did not have the mental
state or condition constituting an element of the crime charged or of a
defense thereto. Such ultimate issues are matters for the trier of fact
alone.
(As amended Oct. 12, 1984.)
Rule 705
. Disclosure of Facts or Data Underlying Expert Opinion___________
The expert may testify in terms of opinion or inference and give
reasons therefor without first testifying to the underlying facts or
data, unless the court requires otherwise. The expert may in any event
be required to disclose the underlying facts or data on cross-
examination.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 22, 1993, eff. Dec. 1,
1993.)
Rule 706
. Court Appointed Experts_________________________________________
(a) Appointment.--The court may on its own motion or on the motion
of any party enter an order to show cause why expert witnesses should
not be appointed, and may request the parties to submit nominations. The
court may appoint any expert witnesses agreed upon by the parties, and
may appoint expert witnesses of its own selection. An expert witness
shall not be appointed by the court unless the witness consents to act.
A witness so appointed shall be informed of the witness' duties by the
court in writing, a copy of which shall be filed with the clerk, or at a
conference in which the parties shall have opportunity to participate. A
witness so appointed shall advise the parties of the witness' findings,
if any; the witness' deposition may be taken by any party; and the
witness may be called to testify by the court or any party. The witness
shall be subject to cross-examination by each party, including a party
calling the witness.
(b) Compensation.--Expert witnesses so appointed are entitled to
reasonable compensation in whatever sum the court may allow. The
compensation thus fixed is payable from funds which may be provided by
law in criminal cases and civil actions and proceedings involving just
compensation under the fifth amendment. In other civil actions and
proceedings the compensation shall be paid by the parties in such
proportion and at such time as the court directs, and thereafter charged
in like manner as other costs.
(c) Disclosure of appointment.--In the exercise of its discretion,
the court may authorize disclosure to the jury of the fact that the
court appointed the expert witness.
(d) Parties' experts of own selection.--Nothing in this rule limits
the parties in calling expert witnesses of their own selection.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
ARTICLE VIII. HEARSAY
Rule 801
. Definitions_____________________________________________________
The following definitions apply under this article:
(a) Statement.--A ``statement'' is (1) an oral or written assertion
or (2) nonverbal conduct of a person, if it is intended by the person as
an assertion.
(b) Declarant.--A ``declarant'' is a person who makes a statement.
(c) Hearsay.--``Hearsay'' is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.
(d) Statements which are not hearsay.--A statement is not hearsay
if--
(1) Prior statement by witness.--The declarant testifies at
the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is (A) inconsistent
with the declarant's testimony, and was given under oath subject
to the penalty of perjury at a trial, hearing, or other
proceeding, or in a deposition, or (B) consistent with the
declarant's testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or
improper influence or motive, or (C) one of identification of a
person made after perceiving the person; or
(2) Admission by party-opponent.--The statement is offered
against a party and is (A) the party's own statement, in either
an individual or a representative capacity or (B) a statement of
which the party has manifested an adoption or belief in its
truth, or (C) a statement by a person authorized by the party to
make a statement concerning the subject, or (D) a statement by
the party's agent or servant concerning a matter within the
scope of the agency or employment, made during the existence of
the relationship, or (E) a statement by a coconspirator of a
party during the course and in furtherance of the conspiracy.
The contents of the statement shall be considered but are not
alone sufficient to establish the declarant's authority under
subdivision (C), the agency or employment relationship and scope
thereof under subdivision (D), or the existence of the
conspiracy and the participation therein of the declarant and
the party against whom the statement is offered under
subdivision (E).
(As amended Oct. 16, 1975, eff. Oct. 31, 1975; Mar. 2, 1987, eff. Oct.
1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997.)
Rule 802
. Hearsay Rule____________________________________________________
Hearsay is not admissible except as provided by these rules or by
other rules prescribed by the Supreme Court pursuant to statutory
authority or by Act of Congress.
Rule 803
. Hearsay Exceptions; Availability of Declarant Immaterial________
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
(1) Present sense impression.--A statement describing or
explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter.
(2) Excited utterance.--A statement relating to a startling
event or condition made while the declarant was under the stress
of excitement caused by the event or condition.
(3) Then existing mental, emotional, or physical
condition.--A statement of the declarant's then existing state
of mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling, pain, and bodily
health), but not including a statement of memory or belief to
prove the fact remembered or believed unless it relates to the
execution, revocation, identification, or terms of declarant's
will.
(4) Statements for purposes of medical diagnosis or
treatment.--Statements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
(5) Recorded recollection.--A memorandum or record
concerning a matter about which a witness once had knowledge but
now has insufficient recollection to enable the witness to
testify fully and accurately, shown to have been made or adopted
by the witness when the matter was fresh in the witness' memory
and to reflect that knowledge correctly. If admitted, the
memorandum or record may be read into evidence but may not
itself be received as an exhibit unless offered by an adverse
party.
(6) Records of regularly conducted activity.--A memorandum,
report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses, made at or near the
time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted
business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record or data
compilation, all as shown by the testimony of the custodian or
other qualified witness, or by certification that complies with
Rule 902(11), Rule 902(12), or a statute permitting
certification, unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness.
The term ``business'' as used in this paragraph includes
business, institution, association, profession, occupation, and
calling of every kind, whether or not conducted for profit.
(7) Absence of entry in records kept in accordance with the
provisions of paragraph (6).--Evidence that a matter is not
included in the memoranda reports, records, or data
compilations, in any form, kept in accordance with the
provisions of paragraph (6), to prove the nonoccurrence or
nonexistence of the matter, if the matter was of a kind of which
a memorandum, report, record, or data compilation was regularly
made and preserved, unless the sources of information or other
circumstances indicate lack of trustworthiness.
(8) Public records and reports.--Records, reports,
statements, or data compilations, in any form, of public offices
or agencies, setting forth (A) the activities of the office or
agency, or (B) matters observed pursuant to duty imposed by law
as to which matters there was a duty to report, excluding,
however, in criminal cases matters observed by police officers
and other law enforcement personnel, or (C) in civil actions and
proceedings and against the Government in criminal cases,
factual findings resulting from an investigation made pursuant
to authority granted by law, unless the sources of information
or other circumstances indicate lack of trustworthiness.
(9) Records of vital statistics.--Records or data
compilations, in any form, of births, fetal deaths, deaths, or
marriages, if the report thereof was made to a public office
pursuant to requirements of law.
(10) Absence of public record or entry.--To prove the
absence of a record, report, statement, or data compilation, in
any form, or the nonoccurrence or nonexistence of a matter of
which a record, report, statement, or data compilation, in any
form, was regularly made and preserved by a public office or
agency, evidence in the form of a certification in accordance
with rule 902, or testimony, that diligent search failed to
disclose the record, report, statement, or data compilation, or
entry.
(11) Records of religious organizations.--Statements of
births, marriages, divorces, deaths, legitimacy, ancestry,
relationship by blood or marriage, or other similar facts of
personal or family history, contained in a regularly kept record
of a religious organization.
(12) Marriage, baptismal, and similar certificates.--
Statements of fact contained in a certificate that the maker
performed a marriage or other ceremony or administered a
sacrament, made by a clergyman, public official, or other person
authorized by the rules or practices of a religious organization
or by law to perform the act certified, and purporting to have
been issued at the time of the act or within a reasonable time
thereafter.
(13) Family records.--Statements of fact concerning personal
or family history contained in family Bibles, genealogies,
charts, engravings on rings, inscriptions on family portraits,
engravings on urns, crypts, or tombstones, or the like.
(14) Records of documents affecting an interest in
property.--The record of a document purporting to establish or
affect an interest in property, as proof of the content of the
original recorded document and its execution and delivery by
each person by whom it purports to have been executed, if the
record is a record of a public office and an applicable statute
authorizes the recording of documents of that kind in that
office.
(15) Statements in documents affecting an interest in
property.--A statement contained in a document purporting to
establish or affect an interest in property if the matter stated
was relevant to the purpose of the document, unless dealings
with the property since the document was made have been
inconsistent with the truth of the statement or the purport of
the document.
(16) Statements in ancient documents.--Statements in a
document in existence twenty years or more the authenticity of
which is established.
(17) Market reports, commercial publications.--Market
quotations, tabulations, lists, directories, or other published
compilations, generally used and relied upon by the public or by
persons in particular occupations.
(18) Learned treatises.--To the extent called to the
attention of an expert witness upon cross-examination or relied
upon by the expert witness in direct examination, statements
contained in published treatises, periodicals, or pamphlets on a
subject of history, medicine, or other science or art,
established as a reliable authority by the testimony or
admission of the witness or by other expert testimony or by
judicial notice. If admitted, the statements may be read into
evidence but may not be received as exhibits.
(19) Reputation concerning personal or family history.--
Reputation among members of a person's family by blood,
adoption, or marriage, or among a person's associates, or in the
community, concerning a person's birth, adoption, marriage,
divorce, death, legitimacy, relationship by blood, adoption, or
marriage, ancestry, or other similar fact of personal or family
history.
(20) Reputation concerning boundaries or general history.--
Reputation in a community, arising before the controversy, as to
boundaries of or customs affecting lands in the community, and
reputation as to events of general history important to the
community or State or nation in which located.
(21) Reputation as to character.--Reputation of a person's
character among associates or in the community.
(22) Judgment of previous conviction.--Evidence of a final
judgment, entered after a trial or upon a plea of guilty (but
not upon a plea of nolo contendere), adjudging a person guilty
of a crime punishable by death or imprisonment in excess of one
year, to prove any fact essential to sustain the judgment, but
not including, when offered by the Government in a criminal
prosecution for purposes other than impeachment, judgments
against persons other than the accused. The pendency of an
appeal may be shown but does not affect admissibility.
(23) Judgment as to personal, family, or general history, or
boundaries.--Judgments as proof of matters of personal, family
or general history, or boundaries, essential to the judgment, if
the same would be provable by evidence of reputation.
(24) [Other exceptions.] [Transferred to Rule 807]
(As amended Dec. 12, 1975; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 11,
1997, eff. Dec. 1, 1997; Apr. 17, 2000, eff. Dec. 1, 2000.)
Rule 804
. Hearsay Exceptions; Declarant Unavailable_______________________
(a) Definition of unavailability.--``Unavailability as a witness''
includes situations in which the declarant--
(1) is exempted by ruling of the court on the ground of
privilege from testifying concerning the subject matter of the
declarant's statement; or
(2) persists in refusing to testify concerning the subject
matter of the declarant's statement despite an order of the
court to do so; or
(3) testifies to a lack of memory of the subject matter of
the declarant's statement; or
(4) is unable to be present or to testify at the hearing
because of death or then existing physical or mental illness or
infirmity; or
(5) is absent from the hearing and the proponent of a
statement has been unable to procure the declarant's attendance
(or in the case of a hearsay exception under subdivision (b)(2),
(3), or (4), the declarant's attendance or testimony) by process
or other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal,
claim of lack of memory, inability, or absence is due to the procurement
or wrongdoing of the proponent of a statement for the purpose of
preventing the witness from attending or testifying.
(b) Hearsay exceptions.--The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony.--Testimony given as a witness at
another hearing of the same or a different proceeding, or in a
deposition taken in compliance with law in the course of the
same or another proceeding, if the party against whom the
testimony is now offered, or, in a civil action or proceeding, a
predecessor in interest, had an opportunity and similar motive
to develop the testimony by direct, cross, or redirect
examination.
(2) Statement under belief of impending death.--In a
prosecution for homicide or in a civil action or proceeding, a
statement made by a declarant while believing that the
declarant's death was imminent, concerning the cause or
circumstances of what the declarant believed to be impending
death.
(3) Statement against interest.--A statement that:
(A) a reasonable person in the declarant's position
would have made only if the person believed it to be
true because, when made, it was so contrary to the
declarant's proprietary or pecuniary interest or had so
great a tendency to invalidate the declarant's claim
against someone else or to expose the declarant to civil
or criminal liability; and
(B) is supported by corroborating circumstances that
clearly indicate its trustworthiness, if it is offered
in a criminal case as one that tends to expose the
declarant to criminal liability.
(4) Statement of personal or family history.--(A) A
statement concerning the declarant's own birth, adoption,
marriage, divorce, legitimacy, relationship by blood, adoption,
or marriage, ancestry, or other similar fact of personal or
family history, even though declarant had no means of acquiring
personal knowledge of the matter stated; or (B) a statement
concerning the foregoing matters, and death also, of another
person, if the declarant was related to the other by blood,
adoption, or marriage or was so intimately associated with the
other's family as to be likely to have accurate information
concerning the matter declared.
(5) [Other exceptions.] [Transferred to Rule 807]
(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.
(As amended Dec. 12, 1975; Mar. 2, 1987, eff. Oct. 1, 1987; Nov. 18,
1988; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 28, 2010, eff. Dec. 1,
2010.)
Rule 805
. Hearsay Within Hearsay__________________________________________
Hearsay included within hearsay is not excluded under the hearsay
rule if each part of the combined statements conforms with an exception
to the hearsay rule provided in these rules.
Rule 806
. Attacking and Supporting Credibility of Declarant_______________
When a hearsay statement, or a statement defined in 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 declarant had testified as a witness. Evidence of a statement or
conduct by the declarant at any time, inconsistent with the declarant's
hearsay statement, is not subject to any requirement that the declarant
may have been afforded an opportunity to deny or explain. If the party
against whom a hearsay statement has been admitted calls the declarant
as a witness, the party is entitled to examine the declarant on the
statement as if under cross-examination.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1,
1997.)
Rule 807
. Residual Exception______________________________________________
A statement not specifically covered by Rule 803 or 804 but having
equivalent circumstantial guarantees of trustworthiness, is not excluded
by the hearsay rule, if the court determines that (A) the statement is
offered as evidence of a material fact; (B) the statement is more
probative on the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts; and (C) the
general purposes of these rules and the interests of justice will best
be served by admission of the statement into evidence. However, a
statement may not be admitted under this exception unless the proponent
of it makes known to the adverse party sufficiently in advance of the
trial or hearing to provide the adverse party with a fair opportunity to
prepare to meet it, the proponent's intention to offer the statement and
the particulars of it, including the name and address of the declarant.
(Added Apr. 11, 1997, eff. Dec. 1, 1997.)
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
Rule 901
. Requirement of Authentication or Identification_________________
(a) General provision.--The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is
what its proponent claims.
(b) Illustrations.--By way of illustration only, and not by way of
limitation, the following are examples of authentication or
identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge.--Testimony that a
matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting.--Nonexpert opinion as
to the genuineness of handwriting, based upon familiarity not
acquired for purposes of the litigation.
(3) Comparison by trier or expert witness.--Comparison by
the trier of fact or by expert witnesses with specimens which
have been authenticated.
(4) Distinctive characteristics and the like.--Appearance,
contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.
(5) Voice identification.--Identification of a voice,
whether heard firsthand or through mechanical or electronic
transmission or recording, by opinion based upon hearing the
voice at any time under circumstances connecting it with the
alleged speaker.
(6) Telephone conversations.--Telephone conversations, by
evidence that a call was made to the number assigned at the time
by the telephone company to a particular person or business, if
(A) in the case of a person, circumstances, including self-
identification, show the person answering to be the one called,
or (B) in the case of a business, the call was made to a place
of business and the conversation related to business reasonably
transacted over the telephone.
(7) Public records or reports.--Evidence that a writing
authorized by law to be recorded or filed and in fact recorded
or filed in a public office, or a purported public record,
report, statement, or data compilation, in any form, is from the
public office where items of this nature are kept.
(8) Ancient documents or data compilation.--Evidence that a
document or data compilation, in any form, (A) is in such
condition as to create no suspicion concerning its authenticity,
(B) was in a place where it, if authentic, would likely be, and
(C) has been in existence 20 years or more at the time it is
offered.
(9) Process or system.--Evidence describing a process or
system used to produce a result and showing that the process or
system produces an accurate result.
(10) Methods provided by statute or rule.--Any method of
authentication or identification provided by Act of Congress or
by other rules prescribed by the Supreme Court pursuant to
statutory authority.
Rule 902
. Self-authentication_____________________________________________
Extrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to the following:
(1) Domestic public documents under seal.--A document
bearing a seal purporting to be that of the United States, or of
any State, district, Commonwealth, territory, or insular
possession thereof, or the Panama Canal Zone, or the Trust
Territory of the Pacific Islands, or of a political subdivision,
department, officer, or agency thereof, and a signature
purporting to be an attestation or execution.
(2) Domestic public documents not under seal.--A document
purporting to bear the signature in the official capacity of an
officer or employee of any entity included in paragraph (1)
hereof, having no seal, if a public officer having a seal and
having official duties in the district or political subdivision
of the officer or employee certifies under seal that the signer
has the official capacity and that the signature is genuine.
(3) Foreign public documents.--A document purporting to be
executed or attested in an official capacity by a person
authorized by the laws of a foreign country to make the
execution or attestation, and accompanied by a final
certification as to the genuineness of the signature and
official position (A) of the executing or attesting person, or
(B) of any foreign official whose certificate of genuineness of
signature and official position relates to the execution or
attestation or is in a chain of certificates of genuineness of
signature and official position relating to the execution or
attestation. A final certification may be made by a secretary of
an embassy or legation, consul general, consul, vice consul, or
consular agent of the United States, or a diplomatic or consular
official of the foreign country assigned or accredited to the
United States. If reasonable opportunity has been given to all
parties to investigate the authenticity and accuracy of official
documents, the court may, for good cause shown, order that they
be treated as presumptively authentic without final
certification or permit them to be evidenced by an attested
summary with or without final certification.
(4) Certified copies of public records.--A copy of an
official record or report or entry therein, or of a document
authorized by law to be recorded or filed and actually recorded
or filed in a public office, including data compilations in any
form, certified as correct by the custodian or other person
authorized to make the certification, by certificate complying
with paragraph (1), (2), or (3) of this rule or complying with
any Act of Congress or rule prescribed by the Supreme Court
pursuant to statutory authority.
(5) Official publications.--Books, pamphlets, or other
publications purporting to be issued by public authority.
(6) Newspapers and periodicals.--Printed materials
purporting to be newspapers or periodicals.
(7) Trade inscriptions and the like.--Inscriptions, signs,
tags, or labels purporting to have been affixed in the course of
business and indicating ownership, control, or origin.
(8) Acknowledged documents.--Documents accompanied by a
certificate of acknowledgment executed in the manner provided by
law by a notary public or other officer authorized by law to
take acknowledgments.
(9) Commercial paper and related documents.--Commercial
paper, signatures thereon, and documents relating thereto to the
extent provided by general commercial law.
(10) Presumptions under Acts of Congress.--Any signature,
document, or other matter declared by Act of Congress to be
presumptively or prima facie genuine or authentic.
(11) Certified domestic records of regularly conducted
activity.--The original or a duplicate of a domestic record of
regularly conducted activity that would be admissible under Rule
803(6) if accompanied by a written declaration of its custodian
or other qualified person, in a manner complying with any Act of
Congress or rule prescribed by the Supreme Court pursuant to
statutory authority, certifying that the record--
(A) was made at or near the time of the occurrence
of the matters set forth by, or from information
transmitted by, a person with knowledge of those
matters;
(B) was kept in the course of the regularly
conducted activity; and
(C) was made by the regularly conducted activity as
a regular practice.
A party intending to offer a record into evidence under
this paragraph must provide written notice of that
intention to all adverse parties, and must make the
record and declaration available for inspection
sufficiently in advance of their offer into evidence to
provide an adverse party with a fair opportunity to
challenge them.
(12) Certified foreign records of regularly conducted
activity.--In a civil case, the original or a duplicate of a
foreign record of regularly conducted activity that would be
admissible under Rule 803(6) if accompanied by a written
declaration by its custodian or other qualified person
certifying that the record--
(A) was made at or near the time of the occurrence
of the matters set forth by, or from information
transmitted by, a person with knowledge of those
matters;
(B) was kept in the course of the regularly
conducted activity; and
(C) was made by the regularly conducted activity as
a regular practice.
The declaration must be signed in a manner that, if
falsely made, would subject the maker to criminal
penalty under the laws of the country where the
declaration is signed. A party intending to offer a
record into evidence under this paragraph must provide
written notice of that intention to all adverse parties,
and must make the record and declaration available for
inspection sufficiently in advance of their offer into
evidence to provide an adverse party with a fair
opportunity to challenge them.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1,
1988; Apr. 17, 2000, eff. Dec. 1, 2000.)
Rule 903
. Subscribing Witness' Testimony Unnecessary______________________
The testimony of a subscribing witness is not necessary to
authenticate a writing unless required by the laws of the jurisdiction
whose laws govern the validity of the writing.
ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
Rule 1001
. Definitions_____________________________________________________
For purposes of this article the following definitions are
applicable:
(1) Writings and recordings.--``Writings'' and
``recordings'' consist of letters, words, or numbers, or their
equivalent, set down by handwriting, typewriting, printing,
photostating, photographing, magnetic impulse, mechanical or
electronic recording, or other form of data compilation.
(2) Photographs.--``Photographs'' include still photographs,
X-ray films, video tapes, and motion pictures.
(3) Original.--An ``original'' of a writing or recording is
the writing or recording itself or any counterpart intended to
have the same effect by a person executing or issuing it. An
``original'' of a photograph includes the negative or any print
therefrom. If data are stored in a computer or similar device,
any printout or other output readable by sight, shown to reflect
the data accurately, is an ``original''.
(4) Duplicate.--A ``duplicate'' is a counterpart produced by
the same impression as the original, or from the same matrix, or
by means of photography, including enlargements and miniatures,
or by mechanical or electronic re-recording, or by chemical
reproduction, or by other equivalent techniques which accurately
reproduces the original.
Rule 1002
. Requirement of Original_________________________________________
To prove the content of a writing, recording, or photograph, the
original writing, recording, or photograph is required, except as
otherwise provided in these rules or by Act of Congress.
Rule 1003
. Admissibility of Duplicates_____________________________________
A duplicate is admissible to the same extent as an original unless
(1) a genuine question is raised as to the authenticity of the original
or (2) in the circumstances it would be unfair to admit the duplicate in
lieu of the original.
Rule 1004
. Admissibility of Other Evidence of Contents_____________________
The original is not required, and other evidence of the contents of
a writing, recording, or photograph is admissible if--
(1) Originals lost or destroyed.--All originals are lost or
have been destroyed, unless the proponent lost or destroyed them
in bad faith; or
(2) Original not obtainable.--No original can be obtained by
any available judicial process or procedure; or
(3) Original in possession of opponent.--At a time when an
original was under the control of the party against whom
offered, that party was put on notice, by the pleadings or
otherwise, that the contents would be a subject of proof at the
hearing, and that party does not produce the original at the
hearing; or
(4) Collateral matters.--The writing, recording, or
photograph is not closely related to a controlling issue.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
Rule 1005
. Public Records__________________________________________________
The contents of an official record, or of a document authorized to
be recorded or filed and actually recorded or filed, including data
compilations in any form, if otherwise admissible, may be proved by
copy, certified as correct in accordance with rule 902 or testified to
be correct by a witness who has compared it with the original. If a copy
which complies with the foregoing cannot be obtained by the exercise of
reasonable diligence, then other evidence of the contents may be given.
Rule 1006
. Summaries_______________________________________________________
The contents of voluminous writings, recordings, or photographs
which cannot conveniently be examined in court may be presented in the
form of a chart, summary, or calculation. The originals, or duplicates,
shall be made available for examination or copying, or both, by other
parties at reasonable time and place. The court may order that they be
produced in court.
Rule 1007
. Testimony or Written Admission of Party_________________________
Contents of writings, recordings, or photographs may be proved by
the testimony or deposition of the party against whom offered or by that
party's written admission, without accounting for the nonproduction of
the original.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
Rule 1008
. Functions of Court and Jury_____________________________________
When the admissibility of other evidence of contents of writings,
recordings, or photographs under these rules depends upon the
fulfillment of a condition of fact, the question whether the condition
has been fulfilled is ordinarily for the court to determine in
accordance with the provisions of rule 104. However, when an issue is
raised (a) whether the asserted writing ever existed, or (b) whether
another writing, recording, or photograph produced at the trial is the
original, or (c) whether other evidence of contents correctly reflects
the contents, the issue is for the trier of fact to determine as in the
case of other issues of fact.
ARTICLE XI. MISCELLANEOUS RULES
Rule 1101
. Applicability of Rules__________________________________________
(a) Courts and judges.--These rules apply to the United States
district courts, the District Court of Guam, the District Court of the
Virgin Islands, the District Court for the Northern Mariana Islands, the
United States courts of appeals, the United States Claims Court, \1\ and
to United States bankruptcy judges and United States magistrate judges,
in the actions, cases, and proceedings and to the extent hereinafter set
forth. The terms ``judge'' and ``court'' in these rules include United
States bankruptcy judges and United States magistrate judges.
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\1\ Pub. L. 102-572, title IX, Sec. 902(b)(1), Oct. 29, 1992, 106
Stat. 4516, provided that reference in any other Federal law or any
document to the ``United States Claims Court'' shall be deemed to refer
to the ``United States Court of Federal Claims''.
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(b) Proceedings generally.--These rules apply generally to civil
actions and proceedings, including admiralty and maritime cases, to
criminal cases and proceedings, to contempt proceedings except those in
which the court may act summarily, and to proceedings and cases under
title 11, United States Code.
(c) Rule of privilege.--The rule with respect to privileges applies
at all stages of all actions, cases, and proceedings.
(d) Rules inapplicable.--The rules (other than with respect to
privileges) do not apply in the following situations:
(1) Preliminary questions of fact.--The determination of
questions of fact preliminary to admissibility of evidence when
the issue is to be determined by the court under rule 104.
(2) Grand jury.--Proceedings before grand juries.
(3) Miscellaneous proceedings.--Proceedings for extradition
or rendition; preliminary examinations in criminal cases;
sentencing, or granting or revoking probation; issuance of
warrants for arrest, criminal summonses, and search warrants;
and proceedings with respect to release on bail or otherwise.
(e) Rules applicable in part.--In the following proceedings these
rules apply to the extent that matters of evidence are not provided for
in the statutes which govern procedure therein or in other rules
prescribed by the Supreme Court pursuant to statutory authority: the
trial of misdemeanors and other petty offenses before United States
magistrate judges; review of agency actions when the facts are subject
to trial de novo under section 706(2)(F) of title 5, United States Code;
review of orders of the Secretary of Agriculture under section 2 of the
Act entitled ``An Act to authorize association of producers of
agricultural products'' approved February 18, 1922 (7 U.S.C. 292), and
under sections 6 and 7(c) of the Perishable Agricultural Commodities
Act, 1930 (7 U.S.C. 499f, 499g(c)); naturalization and revocation of
naturalization under sections 310-318 of the Immigration and Nationality
Act (8 U.S.C. 1421-1429); prize proceedings in admiralty under sections
7651-7681 of title 10, United States Code; review of orders of the
Secretary of the Interior under section 2 of the Act entitled ``An Act
authorizing associations of producers of aquatic products'' approved
June 25, 1934 (15 U.S.C. 522); review of orders of petroleum control
boards under section 5 of the Act entitled ``An Act to regulate
interstate and foreign commerce in petroleum and its products by
prohibiting the shipment in such commerce of petroleum and its products
produced in violation of State law, and for other purposes'', approved
February 22, 1935 (15 U.S.C. 715d); actions for fines, penalties, or
forfeitures under part V of title IV of the Tariff Act of 1930 (19
U.S.C. 1581-1624), or under the Anti-Smuggling Act (19 U.S.C. 1701-
1711); criminal libel for condemnation, exclusion of imports, or other
proceedings under the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
301-392); disputes between seamen under sections 4079, 4080, and 4081 of
the Revised Statutes (22 U.S.C. 256-258); habeas corpus under sections
2241-2254 of title 28, United States Code; motions to vacate, set aside
or correct sentence under section 2255 of title 28, United States Code;
actions for penalties for refusal to transport destitute seamen under
section 4578 of the Revised Statutes (46 U.S.C. 679); \2\ actions
against the United States under the Act entitled ``An Act authorizing
suits against the United States in admiralty for damage caused by and
salvage service rendered to public vessels belonging to the United
States, and for other purposes'', approved March 3, 1925 (46 U.S.C. 781-
790), as implemented by section 7730 of title 10, United States Code.
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\2\ Repealed and reenacted as 46 U.S.C. 11104(b)-(d) by Pub. L. 98-
89, Sec. Sec. 1, 2(a), 4(b), Aug. 26, 1983, 97 Stat. 500.
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(As amended Dec. 12, 1975; Nov. 6, 1978, eff. Oct. 1, 1979; Apr. 2,
1982, eff. Oct. 1, 1982; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988,
eff. Nov. 1, 1988; Nov. 18, 1988; Apr. 22, 1993, eff. Dec. 1, 1993.)
Rule 1102
. Amendments______________________________________________________
Amendments to the Federal Rules of Evidence may be made as provided
in section 2072 of title 28 of the United States Code.
(As amended Apr. 30, 1991, eff. Dec. 1, 1991.)
Rule 1103
. Title___________________________________________________________
These rules may be known and cited as the Federal Rules of Evidence.