FEDERAL RULES OF EVIDENCE
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.
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.
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.
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.
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
(a) Scope of waiver.
In federal proceedings, the
waiver by disclosure of an attorney-client privilege or work product
protection extends to an undisclosed communication or information
concerning the same subject matter only if that undisclosed
communication or information ought in fairness to be considered with the
disclosed communication or information.
(b) Inadvertent disclosure.
A disclosure of a
communication or information covered by the attorney-client privilege or
work product protection does not operate as a waiver in a state or
federal proceeding if the disclosure is inadvertent and is made in
connection with federal litigation or federal administrative proceedings
— and if the holder of the privilege or work product protection took
reasonable precautions to prevent disclosure and took reasonably prompt
measures, once the holder knew or should have known of the disclosure,
to rectify the error, including (if applicable) following the procedures
in Fed. R. Civ. P. 26(b)(5)(B).
[( c ) Selective waiver.
In a federal or state
proceeding, a disclosure of a communication or information covered by
the attorney-client privilege or work product protection — when made to
a federal public office or agency in the exercise of its regulatory,
investigative, or enforcement authority — does not operate as a waiver
of the privilege or protection in favor of non-governmental persons or
entities. The effect of disclosure to a state or local government
agency, with respect to non-governmental persons or entities, is
governed by applicable state law. Nothing in this rule limits or expands
the authority of a government agency to disclose communications or
information to other government agencies or as otherwise authorized or
required by law.]
(d) Controlling effect of
court orders.
A federal court order that the
attorney-client privilege or work product protection is not waived as a
result of disclosure in connection with the litigation pending before
the court governs all persons or entities in all state or federal
proceedings, whether or not they were parties to the matter before the
court, if the order incorporates the agreement of the parties before the
court.
(e) Controlling effect of
party agreements.
An agreement on the effect of
disclosure of a communication or information covered by the
attorney-client privilege or work product protection is binding on the
parties to the agreement, but not on other parties unless the agreement
is incorporated into a court order.
(f) Included privilege and
protection.
As used in this rule:
(1) "attorney-client
privilege" means the protection provided for confidential
attorney-client communications, under applicable law; and
(2) "work product protection"
means the protection for materials prepared in anticipation of
litigation or for trial, under applicable law.
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 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.
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.
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.
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.
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.
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.
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, 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. |