Federal Rules of Evidence
The following rules govern the introduction of evidence in both civil and criminal proceedings in Federal courts. The rules of many states have been closely modeled on these provisions, as these Federal Rules of Evidence do not apply to suits in state courts.
ARTICLE I. GENERAL PROVISIONS
Rule 101. Scope
These rules govern proceedings in the courts of the United States and
before United States bankruptcy judges and United States magistrate
judges, to the extent and with the exceptions stated in rule 1101.
Rule 102. Purpose and Construction
These rules shall be construed to secure fairness in administration,
elimination of unjustifiable expense and delay, and promotion of growth
and development of the law of evidence to the end that the truth may be
ascertained and proceedings justly determined.
Rule 103. Rulings on Evidence
(a) Effect of erroneous ruling.
Error may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected, and
(1) Objection. - In case the ruling is one admitting evidence, a timely
objection or motion to strike appears of record, stating the specific
ground of objection, if the specific ground was not apparent from the
context; or
(2) Offer 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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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.
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).
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).
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.
ARTICLE V. PRIVILEGES
Rule 501. General Rule
Except as otherwise required by the Constitution of the United States or
provided by Act of Congress or in rules prescribed by the Supreme Court
pursuant to statutory authority, the privilege of a witness, person,
government, State, or political subdivision thereof shall be governed by the
principles of the common law as they may be interpreted by the courts of the
United States in the light of reason and experience. However, in civil
actions and proceedings, with respect to an element of a claim or defense as
to which State law supplies the rule of decision, the privilege of a
witness, person, government, State, or political subdivision thereof shall
be determined in accordance with State law.
ARTICLE VI. WITNESSES
Rule 601. General Rule of Competency
Every person is competent to be a witness except as otherwise provided in
these rules. However, in civil 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.
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.
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.
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.
Rule 607. Who May Impeach
The credibility of a witness may be attacked by any party, including the
party calling the witness.
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.
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 which was punishable by death or
imprisonment in excess of one year, or (2) the conviction has been the
subject of a pardon, annulment, or other equivalent procedure based on a
finding of innocence.
(d) Juvenile adjudications.
Evidence of juvenile adjudications is generally not admissible under this
rule. The court may, however, in a criminal case allow evidence of a
juvenile adjudication of a witness other than the accused if conviction of
the offense would be admissible to attack the credibility of an adult and
the court is satisfied that admission in evidence is necessary for a fair
determination of the issue of guilt or innocence.
(e) Pendency of appeal.
The pendency of an appeal therefrom does not render evidence of a conviction
inadmissible. Evidence of the pendency of an appeal is admissible.
Rule 610. Religious Beliefs or Opinions
Evidence of the beliefs or opinions of a witness on matters of religion is
not admissible for the purpose of showing that by reason of their nature the
witness' credibility is impaired or enhanced.
Rule 611. Mode and Order of Interrogation and Presentation
(a) Control by court.
The court shall exercise reasonable control over the mode and order of
interrogating witnesses and presenting evidence so as to (1) make the
interrogation and presentation effective for the ascertainment of the truth,
(2) avoid needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.
(b) Scope of cross-examination.
Cross-examination should be limited to the subject matter of the direct
examination and matters affecting the credibility of the witness. The court
may, in the exercise of discretion, permit inquiry into additional matters
as if on direct examination.
(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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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).
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]
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 which was at the time of its
making so far contrary to the declarant's pecuniary or proprietary interest,
or so far tended to subject the declarant to civil or criminal liability, or
to render invalid a claim by the declarant against another, that a
reasonable person in the declarant's position would not have made the
statement unless believing it to be true. A statement tending to expose the
declarant to criminal liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement.
(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.
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.
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.
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.
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.
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.
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 Disrict Court for the
Northern Mariana Islands, the United States courts of appeals, the United
States Claims Court, and to the 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.
(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 judge; review of agency actions when the facts are subject
to trail 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 section 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); 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.
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.
Rule 1103. Title
These rules may be known and cited as the Federal Rules of Evidence.