FEDERAL RULES
OF
EVIDENCE
DECEMBER 1, 2006
U
NUM
E PLURIBU
S
Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
109TH CONGRESS
" COMMITTEE PRINT ! No. 9
2nd Session
FEDERAL RULES
OF
EVIDENCE
DECEMBER 1, 2006
U
NUM
E PLURIBU
S
Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2006
For sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: (202) 512­1800 Fax: (202) 512­2250
Mail: Stop SSOP, Washington, DC 20402­0001
COMMITTEE ON THE JUDICIARY
ONE HUNDRED NINTH CONGRESS
F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JOHN CONYERS, JR., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SA´ NCHEZ, California
CHRIS VAN HOLLEN, Maryland
DEBBIE WASSERMAN SCHULTZ, Florida
PHILIP G. KIKO, General Counsel -- Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel
(II)
FOREWORD
This document contains the Federal Rules of Evidence, as
amended to December 1, 2006. The rules were enacted by Public
Law 93­595 (approved January 2, 1975) and have been amended by
Acts of Congress, and further amended by the United States
Supreme Court. This document has been prepared by the Committee
in response to the need for an official up-to-date document
containing the latest amendments to the rules.
For the convenience of the user, where a rule has been amended
a reference to the date the amendment was promulgated and the
date the amendment became effective follows the text of the rule.
The Committee on Rules of Practice and Procedure and the Advisory
Committee on the Federal Rules of Evidence, Judicial Conference
of the United States, prepared notes explaining the purpose
and intent of the amendments to the rules. The Committee
Notes may be found in the Appendix to Title 28, United States
Code, following the particular rule to which they relate.
Chairman, Committee on the Judiciary.
DECEMBER 1, 2006.
(III)
(V)
AUTHORITY FOR PROMULGATION OF RULES
TITLE 28, UNITED STATES CODE
§ 2072. Rules of procedure and evidence; power to prescribe
(a) The Supreme Court shall have the power to prescribe general
rules of practice and procedure and rules of evidence for cases in
the United States district courts (including proceedings before
magistrate judges thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive
right. All laws in conflict with such rules shall be of no
further force or effect after such rules have taken effect.
(c) Such rules may define when a ruling of a district court is
final for the purposes of appeal under section 1291 of this title.
(Added Pub. L. 100­702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4648,
eff. Dec. 1, 1988; amended Pub. L. 101­650, title III, §§ 315, 321, Dec.
1, 1990, 104 Stat. 5115, 5117.)
§ 2073. Rules of procedure and evidence; method of prescribing
(a)(1) The Judicial Conference shall prescribe and publish the
procedures for the consideration of proposed rules under this sec-
tion.
(2) The Judicial Conference may authorize the appointment of
committees to assist the Conference by recommending rules to be
prescribed under sections 2072 and 2075 of this title. Each such
committee shall consist of members of the bench and the professional
bar, and trial and appellate judges.
(b) The Judicial Conference shall authorize the appointment of
a standing committee on rules of practice, procedure, and evidence
under subsection (a) of this section. Such standing committee
shall review each recommendation of any other committees so
appointed and recommend to the Judicial Conference rules of
practice, procedure, and evidence and such changes in rules proposed
by a committee appointed under subsection (a)(2) of this
section as may be necessary to maintain consistency and otherwise
promote the interest of justice.
(c)(1) Each meeting for the transaction of business under this
chapter by any committee appointed under this section shall be
open to the public, except when the committee so meeting, in
open session and with a majority present, determines that it is in
the public interest that all or part of the remainder of the meeting
on that day shall be closed to the public, and states the reason
for so closing the meeting. Minutes of each meeting for the transaction
of business under this chapter shall be maintained by the
committee and made available to the public, except that any portion
of such minutes, relating to a closed meeting and made available
to the public, may contain such deletions as may be necessary
to avoid frustrating the purposes of closing the meeting.
VI AUTHORITY FOR PROMULGATION OF RULES
(2) Any meeting for the transaction of business under this chapter,
by a committee appointed under this section, shall be preceded
by sufficient notice to enable all interested persons to at-
tend.
(d) In making a recommendation under this section or under
section 2072 or 2075, the body making that recommendation shall
provide a proposed rule, an explanatory note on the rule, and a
written report explaining the body's action, including any minority
or other separate views.
(e) Failure to comply with this section does not invalidate a rule
prescribed under section 2072 or 2075 of this title.
(Added Pub. L. 100­702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649,
eff. Dec. 1, 1988; amended Pub. L. 103­394, title I, § 104(e), Oct. 22,
1994, 108 Stat. 4110.)
§ 2074. Rules of procedure and evidence; submission to Congress;
effective date
(a) The Supreme Court shall transmit to the Congress not later
than May 1 of the year in which a rule prescribed under section
2072 is to become effective a copy of the proposed rule. Such rule
shall take effect no earlier than December 1 of the year in which
such rule is so transmitted unless otherwise provided by law. The
Supreme Court may fix the extent such rule shall apply to proceedings
then pending, except that the Supreme Court shall not
require the application of such rule to further proceedings then
pending to the extent that, in the opinion of the court in which
such proceedings are pending, the application of such rule in such
proceedings would not be feasible or would work injustice, in
which event the former rule applies.
(b) Any such rule creating, abolishing, or modifying an evidentiary
privilege shall have no force or effect unless approved by
Act of Congress.
(Added Pub. L. 100­702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649,
eff. Dec. 1, 1988.)
§ 2075. Bankruptcy rules
The Supreme Court shall have the power to prescribe by general
rules, the forms of process, writs, pleadings, and motions, and the
practice and procedure in cases under title 11.
Such rules shall not abridge, enlarge, or modify any substantive
right.
The Supreme Court shall transmit to Congress not later than
May 1 of the year in which a rule prescribed under this section is
to become effective a copy of the proposed rule. The rule shall
take effect no earlier than December 1 of the year in which it is
transmitted to Congress unless otherwise provided by law.
The bankruptcy rules promulgated under this section shall prescribe
a form for the statement required under section 707(b)(2)(C)
of title 11 and may provide general rules on the content of such
statement.
(Added Pub. L. 88­623, § 1, Oct. 3, 1964, 78 Stat. 1001; amended Pub.
L. 95­598, title II, § 247, Nov. 6, 1978, 92 Stat. 2672; Pub. L. 103­394,
title I, § 104(f), Oct. 22, 1994, 108 Stat. 4110; Pub. L. 109­8, title XII,
§ 1232, Apr. 20, 2005, 119 Stat. 202.)
(VII)
1 LEGISLATIVE HISTORY:
HOUSE REPORTS: No. 93­650 (Comm. on the Judiciary) and No. 93­1597
(Comm. of Conference).
SENATE REPORT No. 93­1277 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 120 (1974):
Jan. 30, Feb. 6, considered and passed House.
Nov. 21, 22, considered and passed Senate, amended.
Dec. 16, Senate agreed to conference report.
Dec. 17, 18, House agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 11, No. 1:
Jan. 3, 1975, Presidential statement.
HISTORICAL NOTE
The Supreme Court prescribes Federal Rules of Evidence pursuant
to section 2072 of Title 28, United States Code, as enacted by
Title IV ``Rules Enabling Act'' of Pub. L. 100­702 (approved November
19, 1988, 102 Stat. 4648), effective December 1, 1988, and section
2075 of Title 28. Pursuant to section 2074 of Title 28, the Supreme
Court transmits to Congress (not later than May 1 of the
year in which a rule prescribed under section 2072 is to become effective)
a copy of the proposed rule. The rule takes effect no earlier
than December 1 of the year in which the rule is transmitted
unless otherwise provided by law.
Pursuant to sections 3402, 3771, and 3772 of Title 18, United
States Code, and sections 2072 and 2075 of Title 28, United States
Code, as then in effect, the Supreme Court through the Chief Justice
submitted Federal Rules of Evidence to Congress on February
5, 1973 (409 U.S. 1132; Cong. Rec., vol. 119, pt. 3, p. 3247, Exec.
Comm. 359, H. Doc. 93­46). To allow additional time for Congress
to review the proposed rules, Public Law 93­12 (approved March 30,
1973, 87 Stat. 9) provided that the proposed rules ``shall have no
force or effect except to the extent, and with such amendments,
as they may be expressly approved by Act of Congress''.
Public Law 93­595 1 (approved January 2, 1975, 88 Stat. 1926) enacted
the Federal Rules of Evidence proposed by the Supreme
Court, with amendments made by Congress, to be effective July 1,
1975.
Section 1 of Public Law 94­113 (approved October 16, 1975, 89
Stat. 576) added clause (C) to Rule 801(d)(1), effective October 31,
1975.
Section 1 of Public Law 94­149 (approved December 12, 1975, 89
Stat. 805) enacted technical amendments which affected the Table
of Contents and Rules 410, 606(b), 803(23), 804(b)(3), and 1101(e).
Section 2 of Public Law 95­540 (approved October 28, 1978, 92
Stat. 2046) added Rule 412 and inserted item 412 in the Table of
Contents. The amendments apply to trials that begin more than
thirty days after October 28, 1978.
Section 251 of Public Law 95­598 (approved November 6, 1978, 92
Stat. 2673) amended Rule 1101(a) and (b) by striking out ``, referees
in bankruptcy,'' and by substituting ``title 11, United States
VIII HISTORICAL NOTE
Code'' for ``the Bankruptcy Act'', effective October 1, 1979, pursuant
to section 402(c) of Public Law 95­598.
Section 252 of Public Law 95­598 would have amended Rule
1101(a) by inserting ``the United States Bankruptcy Courts,'' immediately
after ``the United States district courts,'', effective
April 1, 1984, pursuant to section 402(b) of Public Law 95­598. However,
following a series of amendments (extending the April 1,
1984, effective date) by Public Laws 98­249, § 1(a), 98­271, § 1(a),
98­299, § 1(a), 98­325, § 1(a), and 98­353, § 121(a), section 402(b) of Public
Law 95­598 was amended by section 113 of Public Law 98­353 to
provide that the amendment ``shall not be effective''.
An amendment to Rule 410 was proposed by the Supreme Court
by order dated April 30, 1979, transmitted to Congress by the Chief
Justice on the same day (441 U.S. 970, 1007; Cong. Rec., vol. 125, pt.
8, p. 9366, Exec. Comm. 1456; H. Doc. 96­112), and was to be effective
August 1, 1979. Public Law 96­42 (approved July 31, 1979, 93 Stat.
326) delayed the effective date of the amendment to Rule 410 until
December 1, 1980, or until and to the extent approved by Act of
Congress, whichever is earlier. In the absence of further action by
Congress, the amendment to Rule 410 became effective December
1, 1980.
Sections 142 and 402 of Public Law 97­164 (approved April 2, 1982,
96 Stat. 45, 57) amended Rule 1101(a), effective October 1, 1982.
Section 406 of Public Law 98­473 (approved October 12, 1984, 98
Stat. 2067) amended Rule 704.
Additional amendments were adopted by the Court by order
dated March 2, 1987, transmitted to Congress by the Chief Justice
on the same day (480 U.S. 1023; Cong. Rec., vol. 133, pt. 4, p. 4484,
Exec. Comm. 713; H. Doc. 100­41), and became effective October 1,
1987. The amendments affected Rules 101, 104(c), (d), 106, 404(a)(1),
(b), 405(b), 411, 602 to 604, 606, 607, 608(b), 609(a), 610, 611(c), 612, 613,
615, 701, 703, 705, 706(a), 801(a), (d), 803(5), (18), (19), (21), (24), 804(a),
(b)(2), (3), (5), 806, 902(2), (3), 1004(3), 1007, and 1101(a).
Additional amendments were adopted by the Court by order
dated April 25, 1988, transmitted to Congress by the Chief Justice
on the same day (485 U.S. 1049; Cong. Rec., vol. 134, pt. 7, p. 9154,
Exec. Comm. 3517; H. Doc. 100­187), and became effective November
1, 1988. The amendments affected Rules 101, 602, 608(b), 613(b), 615,
902(3), and 1101(a), (e).
Sections 7046 and 7075 of Public Law 100­690 (approved November
18, 1988, 102 Stat. 4400, 4405) amended the Tables of Contents and
Rules 412, 615, 804(a)(5), and 1101(a). Section 7075(a) of Public Law
100­690, which directed the amendment of Rule 615 by inserting
``a'' before ``party which is not a natural person.'', could not be executed
because ``party which is not a natural person.'' did not appear.
However, the word ``a'' was inserted by the intervening
amendment adopted by the Court by order dated April 25, 1988, effective
November 1, 1988. Section 7075(c)(1) of Public Law 100­690,
which directed the amendment of Rule 1101(a) by striking ``Rules''
and inserting ``rules'', could not be executed because of the intervening
amendment adopted by the Court by order dated April 25,
1988, effective November 1, 1988.
An additional amendment was adopted by the Court by order
dated January 26, 1990, transmitted to Congress by the Chief Justice
on the same day (493 U.S. 1175; Cong. Rec., vol. 136, pt. 1, p.
IXHISTORICAL NOTE
662, Exec. Comm. 2370; H. Doc. 101­142), and became effective December
1, 1990. The amendment affected Rule 609(a).
Additional amendments were adopted by the Court by order
dated April 30, 1991, transmitted to Congress by the Chief Justice
on the same day (500 U.S. 1001; Cong. Rec., vol. 137, pt. 7, p. 9721,
Ex. Comm. 1189; H. Doc. 102­76), and became effective December 1,
1991. The amendments affected Rules 404(b) and 1102.
Additional amendments were adopted by the Court by order
dated April 22, 1993, transmitted to Congress by the Chief Justice
on the same day (507 U.S. 1187; Cong. Rec., vol. 139, pt. 6, p. 8127,
Ex. Comm. 1104; H. Doc. 103­76), and became effective December 1,
1993. The amendments affected Rules 101, 705, and 1101(a), (e).
An additional amendment was adopted by the Court by order
dated April 29, 1994, and transmitted to Congress by the Chief Justice
on the same day (511 U.S. 1187; Cong. Rec., vol. 140, pt. 7, p.
8903, Ex. Comm. 3085; H. Doc. 103­250). The amendment affected
Rule 412 and was to become effective December 1, 1994. Section
40141(a) of Public Law 103­322 (approved September 13, 1994, 108
Stat. 1918) provided that such amendment would take effect on
December 1, 1994, but with the general amendment of Rule 412
made by section 40141(b) of Public Law 103­322.
Section 320935(a) of Public Law 103­322 (approved September 13,
1994, 108 Stat. 2135) amended the Federal Rules of Evidence by adding
Rules 413 to 415, with provisions in section 320935(b)­(e) of Public
Law 103­322 relating to the effective date and application of
such rules. Pursuant to Pub. L. 103­322, § 320935(c), the Judicial
Conference transmitted a report to Congress on February 9, 1995,
containing recommendations different from the amendments
made by Pub. L. 103­322, § 320935(a). Congress did not adopt the recommendations
submitted or provide otherwise by law. Accordingly,
Rules 413 to 415, as so added, became effective on July 9,
1995.
Additional amendments were adopted by the Court by order
dated April 11, 1997, transmitted to Congress by the Chief Justice
on the same day (520 U.S. 1323; Cong. Rec., vol. 143, pt. 4, p. 5550,
Ex. Comm. 2798; H. Doc. 105­69), and became effective December 1,
1997. The amendments affected Rules 407, 801, 803, 804, and 806 and
added Rule 807.
Additional amendments were adopted by the Court by order
dated April 24, 1998, transmitted to Congress by the Chief Justice
on the same day (523 U.S. 1235; Cong. Rec., vol. 144, pt. 6, p. 8151,
Ex. Comm. 8996 to Ex. Comm. 8998; H. Doc. 105­268), and became effective
December 1, 1998. The amendments affected Rule 615.
Additional amendments were adopted by the Court by order
dated April 17, 2000, transmitted to Congress by the Chief Justice
on the same day (529 U.S. 1189; Cong. Rec., vol. 146, pt. 5, p. 6328,
Ex. Comm. 7333; H. Doc. 106­225), and became effective December
1, 2000. The amendments affected Rules 103, 404, 701, 702, 703, 803,
and 902.
An additional amendment was adopted by the Court by order
dated March 27, 2003, transmitted to Congress by the Chief Justice
on the same day (538 U.S. 1097; Cong. Rec., vol. 149, pt. 6, p. 7689,
Ex. Comm. 1494; H. Doc. 108­57), and became effective December 1,
2003. The amendment affected Rule 608.
X HISTORICAL NOTE
Additional amendments were adopted by the Court by order
dated April 12, 2006, transmitted to Congress by the Chief Justice
on the same day (547 U.S. ----; Cong. Rec., vol. 152, p. H2179, Daily
Issue, Ex. Comm. 7320; H. Doc. 109­108), and became effective December
1, 2006. The amendments affected Rules 404, 408, 606, and
609.
Committee Notes
Committee Notes prepared by the Committee on Rules of Practice
and Procedure and the Advisory Committee on the Federal
Rules of Evidence, Judicial Conference of the United States, explaining
the purpose and intent of the amendments are set out in
the Appendix to Title 28, United States Code, following the particular
rule to which they relate. In addition, the notes are set out
in the House documents listed above.
(XI)
TABLE OF CONTENTS
Page
Foreword .............................................................................................................. III
Authority for promulgation of rules .................................................................... V
Historical note ..................................................................................................... VII
RULES
Article I. General Provisions:
Rule 101. Scope .............................................................................................. 1
Rule 102. Purpose and construction ............................................................... 1
Rule 103. Rulings on evidence:
(a) Effect of erroneous ruling:
(1) Objection ...................................................................................... 1
(2) Offer of proof ................................................................................. 1
(b) Record of offer and ruling .................................................................. 1
(c) Hearing of jury ................................................................................... 1
(d) Plain error .......................................................................................... 2
Rule 104. Preliminary questions:
(a) Questions of admissibility generally .................................................. 2
(b) Relevancy conditioned on fact ........................................................... 2
(c) Hearing of jury ................................................................................... 2
(d) Testimony by accused ........................................................................ 2
(e) Weight and credibility ........................................................................ 2
Rule 105. Limited admissibility ..................................................................... 2
Rule 106. Remainder of or related writings or recorded statements .............. 2
Article II. Judicial Notice:
Rule 201. Judicial notice of adjudicative facts:
(a) Scope of rule ....................................................................................... 2
(b) Kinds of facts ...................................................................................... 2
(c) When discretionary ............................................................................. 3
(d) When mandatory ................................................................................ 3
(e) Opportunity to be heard ..................................................................... 3
(f) Time of taking notice ......................................................................... 3
(g) Instructing jury .................................................................................. 3
Article III. Presumptions in Civil Actions and Proceedings:
Rule 301. Presumptions in general in civil actions and proceedings .............. 3
Rule 302. Applicability of State law in civil actions and proceedings ........... 3
Article IV. Relevancy and Its Limits:
Rule 401. Definition of ``relevant evidence'' ................................................... 3
Rule 402. Relevant evidence generally admissible; irrelevant evidence
inadmissible ...................................................................................... 3
Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion,
or waste of time ................................................................................ 4
Rule 404. Character evidence not admissible to prove conduct; exceptions;
other crimes:
(a) Character evidence generally:
(1) Character of accused ..................................................................... 4
(2) Character of alleged victim .......................................................... 4
(3) Character of witness ..................................................................... 4
(b) Other crimes, wrongs, or acts ............................................................. 4
Rule 405. Methods of proving character:
(a) Reputation or opinion ........................................................................ 4
(b) Specific instances of conduct ............................................................. 4
Rule 406. Habit; routine practice ................................................................... 5
Rule 407. Subsequent remedial measures ....................................................... 5
Rule 408. Compromise and offers to compromise:
(a) Prohibited uses ................................................................................... 5
XII CONTENTS
Article IV. Relevancy and Its Limits--Continued
Rule 408. Compromise and offers to compromise--Continued Page
(b) Permitted uses ................................................................................... 5
Rule 409. Payment of medical and similar expenses ...................................... 5
Rule 410. Inadmissibility of pleas, plea discussions, and related statements 5
Rule 411. Liability insurance ......................................................................... 6
Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual
Behavior or Alleged Sexual Predisposition:
(a) Evidence generally inadmissible ........................................................ 6
(b) Exceptions .......................................................................................... 6
(c) Procedure to determine admissibility ................................................ 7
Rule 413. Evidence of Similar Crimes in Sexual Assault Cases ...................... 7
Rule 414. Evidence of Similar Crimes in Child Molestation Cases ................. 8
Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual
Assault or Child Molestation ............................................................ 8
Article V. Privileges:
Rule 501. General rule .................................................................................... 8
Article VI. Witnesses:
Rule 601. General rule of competency ............................................................ 9
Rule 602. Lack of personal knowledge ........................................................... 9
Rule 603. Oath or affirmation ........................................................................ 9
Rule 604. Interpreters .................................................................................... 9
Rule 605. Competency of judge as witness ..................................................... 9
Rule 606. Competency of juror as witness:
(a) At the trial ......................................................................................... 9
(b) Inquiry into validity of verdict or indictment ................................... 10
Rule 607. Who may impeach ........................................................................... 10
Rule 608. Evidence of character and conduct of witness:
(a) Opinion and reputation evidence of character ................................... 10
(b) Specific instances of conduct ............................................................. 10
Rule 609. Impeachment by evidence of conviction of crime:
(a) General rule ........................................................................................ 10
(b) Time limit .......................................................................................... 11
(c) Effect of pardon, annulment, or certificate of rehabilitation ............ 11
(d) Juvenile adjudications ....................................................................... 11
(e) Pendency of appeal ............................................................................. 11
Rule 610. Religious beliefs or opinions ........................................................... 11
Rule 611. Mode and order of interrogation and presentation:
(a) Control by court ................................................................................. 12
(b) Scope of cross-examination ................................................................ 12
(c) Leading questions ............................................................................... 12
Rule 612. Writing used to refresh memory ..................................................... 12
Rule 613. Prior statements of witnesses:
(a) Examining witness concerning prior statement ................................. 12
(b) Extrinsic evidence of prior inconsistent statement of witness .......... 12
Rule 614. Calling and interrogation of witnesses by court:
(a) Calling by court .................................................................................. 13
(b) Interrogation by court ....................................................................... 13
(c) Objections ........................................................................................... 13
Rule 615. Exclusion of witnesses .................................................................... 13
Article VII. Opinions and Expert Testimony:
Rule 701. Opinion testimony by lay witnesses ............................................... 13
Rule 702. Testimony by experts ..................................................................... 13
Rule 703. Bases of opinion testimony by experts ........................................... 14
Rule 704. Opinion on ultimate issue ............................................................... 14
Rule 705. Disclosure of facts or data underlying expert opinion .................... 14
Rule 706. Court appointed experts:
(a) Appointment ...................................................................................... 14
(b) Compensation ..................................................................................... 15
(c) Disclosure of appointment .................................................................. 15
(d) Parties' experts of own selection ........................................................ 15
Article VIII. Hearsay:
Rule 801. Definitions:
(a) Statement .......................................................................................... 15
(b) Declarant ............................................................................................ 15
(c) Hearsay ............................................................................................... 15
(d) Statements which are not hearsay:
(1) Prior statement by witness .......................................................... 15
XIIICONTENTS
Article VIII. Hearsay--Continued
Rule 801. Definitions--Continued
(d) Statements which are not hearsay--Continued Page
(2) Admission by party-opponent ....................................................... 15
Rule 802. Hearsay rule ................................................................................... 16
Rule 803. Hearsay exceptions; availability of declarant immaterial:
(1) Present sense impression .................................................................... 16
(2) Excited utterance ............................................................................... 16
(3) Then existing mental, emotional, or physical condition .................... 16
(4) Statements for purposes of medical diagnosis or treatment .............. 16
(5) Recorded recollection ......................................................................... 16
(6) Records of regularly conducted activity ............................................. 16
(7) Absence of entry in records kept in accordance with the provisions
of paragraph (6) ..................................................................................... 17
(8) Public records and reports .................................................................. 17
(9) Records of vital statistics ................................................................... 17
(10) Absence of public record or entry ..................................................... 17
(11) Records of religious organizations .................................................... 17
(12) Marriage, baptismal, and similar certificates ................................... 17
(13) Family records .................................................................................. 17
(14) Records of documents affecting an interest in property ................... 18
(15) Statements in documents affecting an interest in property ............. 18
(16) Statements in ancient documents ..................................................... 18
(17) Market reports, commercial publications ......................................... 18
(18) Learned treatises .............................................................................. 18
(19) Reputation concerning personal or family history ........................... 18
(20) Reputation concerning boundaries or general history ...................... 18
(21) Reputation as to character ............................................................... 18
(22) Judgment of previous conviction ...................................................... 18
(23) Judgment as to personal, family, or general history, or boundaries 19
(24) Other exceptions (Transferred).
Rule 804. Hearsay exceptions; declarant unavailable:
(a) Definition of unavailability ............................................................... 19
(b) Hearsay exceptions:
(1) Former testimony ......................................................................... 19
(2) Statement under belief of impending death ................................. 19
(3) Statement against interest .......................................................... 19
(4) Statement of personal or family history ...................................... 20
(5) Other exceptions (Transferred).
(6) Forfeiture by wrongdoing ............................................................. 20
Rule 805. Hearsay within hearsay .................................................................. 20
Rule 806. Attacking and supporting credibility of declarant ......................... 20
Rule 807. Residual exception .......................................................................... 20
Article IX. Authentication and Identification:
Rule 901. Requirement of authentication or identification:
(a) General provision ............................................................................... 21
(b) Illustrations:
(1) Testimony of witness with knowledge .......................................... 21
(2) Nonexpert opinion on handwriting ............................................... 21
(3) Comparison by trier or expert witness ......................................... 21
(4) Distinctive characteristics and the like ....................................... 21
(5) Voice identification ...................................................................... 21
(6) Telephone conversations .............................................................. 21
(7) Public records or reports .............................................................. 21
(8) Ancient documents or data compilation ....................................... 21
(9) Process or system ......................................................................... 22
(10) Methods provided by statute or rule ........................................... 22
Rule 902. Self-authentication:
(1) Domestic public documents under seal ............................................... 22
(2) Domestic public documents not under seal ........................................ 22
(3) Foreign public documents .................................................................. 22
(4) Certified copies of public records ........................................................ 22
(5) Official publications ........................................................................... 23
(6) Newspapers and periodicals ................................................................ 23
(7) Trade inscriptions and the like .......................................................... 23
(8) Acknowledged documents ................................................................... 23
(9) Commercial paper and related documents .......................................... 23
(10) Presumptions under Acts of Congress ............................................... 23
XIV CONTENTS
Article IX. Authentication and Identification--Continued
Rule 902. Self-authentication--Continued Page
(11) Certified domestic records of regularly conducted activity .............. 23
(12) Certified foreign records of regularly conducted activity ................. 23
Rule 903. Subscribing witness' testimony unnecessary ................................. 24
Article X. Contents of Writings, Recordings, and Photographs:
Rule 1001. Definitions:
(1) Writings and recordings ...................................................................... 24
(2) Photographs ........................................................................................ 24
(3) Original ............................................................................................... 24
(4) Duplicate ............................................................................................ 24
Rule 1002. Requirement of original ................................................................ 24
Rule 1003. Admissibility of duplicates ........................................................... 24
Rule 1004. Admissibility of other evidence of contents:
(1) Originals lost or destroyed ................................................................. 25
(2) Original not obtainable ...................................................................... 25
(3) Original in possession of opponent ..................................................... 25
(4) Collateral matters .............................................................................. 25
Rule 1005. Public records ............................................................................... 25
Rule 1006. Summaries .................................................................................... 25
Rule 1007. Testimony or written admission of party ..................................... 25
Rule 1008. Functions of court and jury .......................................................... 25
Article XI. Miscellaneous Rules:
Rule 1101. Applicability of rules:
(a) Courts and judges ............................................................................... 26
(b) Proceedings generally ........................................................................ 26
(c) Rule of privilege ................................................................................. 26
(d) Rules inapplicable:
(1) Preliminary questions of fact ....................................................... 26
(2) Grand jury .................................................................................... 26
(3) Miscellaneous proceedings ............................................................ 26
(e) Rules applicable in part ...................................................................... 26
Rule 1102. Amendments ................................................................................. 27
Rule 1103. Title .............................................................................................. 27
(1)
FEDERAL RULES OF EVIDENCE
Effective July 1, 1975, as amended to December 1, 2006
ARTICLE I. GENERAL PROVISIONS
Rule 101. Scope
These rules govern proceedings in the courts of the United
States and before the United States bankruptcy judges and United
States magistrate judges, to the extent and with the exceptions
stated in rule 1101.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov.
1, 1988; Apr. 22, 1993, eff. Dec. 1, 1993.)
Rule 102. Purpose and Construction
These rules shall be construed to secure fairness in administration,
elimination of unjustifiable expense and delay, and promotion
of growth and development of the law of evidence to the
end that the truth may be ascertained and proceedings justly de-
termined.
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.
2Rule 104 FEDERAL RULES OF EVIDENCE
(d) Plain error.--Nothing in this rule precludes taking notice of
plain errors affecting substantial rights although they were not
brought to the attention of the court.
(As amended Apr. 17, 2000, eff. Dec. 1, 2000.)
Rule 104. Preliminary Questions
(a) Questions of admissibility generally.--Preliminary questions
concerning the qualification of a person to be a witness, the existence
of a privilege, or the admissibility of evidence shall be determined
by the court, subject to the provisions of subdivision (b). In
making its determination it is not bound by the rules of evidence
except those with respect to privileges.
(b) Relevancy conditioned on fact.--When the relevancy of evidence
depends upon the fulfillment of a condition of fact, the
court shall admit it upon, or subject to, the introduction of evidence
sufficient to support a finding of the fulfillment of the con-
dition.
(c) Hearing of jury.--Hearings on the admissibility of confessions
shall in all cases be conducted out of the hearing of the jury.
Hearings on other preliminary matters shall be so conducted when
the interests of justice require, or when an accused is a witness
and so requests.
(d) Testimony by accused.--The accused does not, by testifying
upon a preliminary matter, become subject to cross-examination
as to other issues in the case.
(e) Weight and credibility.--This rule does not limit the right of
a party to introduce before the jury evidence relevant to weight
or credibility.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
Rule 105. Limited Admissibility
When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another purpose
is admitted, the court, upon request, shall restrict the evidence
to its proper scope and instruct the jury accordingly.
Rule 106. Remainder of or Related Writings or Recorded State-
ments
When a writing or recorded statement or part thereof is introduced
by a party, an adverse party may require the introduction
at that time of any other part or any other writing or recorded
statement which ought in fairness to be considered contemporaneously
with it.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
ARTICLE II. JUDICIAL NOTICE
Rule 201. Judicial Notice of Adjudicative Facts
(a) Scope of rule.--This rule governs only judicial notice of adjudicative
facts.
(b) Kinds of facts.--A judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court or (2)
3 Rule 402FEDERAL RULES OF EVIDENCE
capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.
(c) When discretionary.--A court may take judicial notice,
whether requested or not.
(d) When mandatory.--A court shall take judicial notice if requested
by a party and supplied with the necessary information.
(e) Opportunity to be heard.--A party is entitled upon timely request
to an opportunity to be heard as to the propriety of taking
judicial notice and the tenor of the matter noticed. In the absence
of prior notification, the request may be made after judicial notice
has been taken.
(f) Time of taking notice.--Judicial notice may be taken at any
stage of the proceeding.
(g) Instructing jury.--In a civil action or proceeding, the court
shall instruct the jury to accept as conclusive any fact judicially
noticed. In a criminal case, the court shall instruct the jury that
it may, but is not required to, accept as conclusive any fact judicially
noticed.
ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND
PROCEEDINGS
Rule 301. Presumptions in General in Civil Actions and Proceed-
ings
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 Proceed-
ings
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.
4Rule 403 FEDERAL RULES OF EVIDENCE
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice,
Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of
cumulative evidence.
Rule 404. Character Evidence Not Admissible to Prove Conduct;
Exceptions; Other Crimes
(a) Character evidence generally.--Evidence of a person's character
or a trait of character is not admissible for the purpose of
proving action in conformity therewith on a particular occasion,
except:
(1) Character of accused.--In a criminal case, evidence of a
pertinent trait of character offered by an accused, or by the
prosecution to rebut the same, or if evidence of a trait of character
of the alleged victim of the crime is offered by an accused
and admitted under Rule 404(a)(2), evidence of the same
trait of character of the accused offered by the prosecution;
(2) Character of alleged victim.--In a criminal case, and subject
to the limitations imposed by Rule 412, evidence of a pertinent
trait of character of the alleged victim of the crime offered
by an accused, or by the prosecution to rebut the same,
or evidence of a character trait of peacefulness of the alleged
victim offered by the prosecution in a homicide case to rebut
evidence that the alleged victim was the first aggressor;
(3) Character of witness.--Evidence of the character of a witness,
as provided in Rules 607, 608, and 609.
(b) Other crimes, wrongs, or acts.--Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person
in order to show action in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence
of mistake or accident, provided that upon request by the
accused, the prosecution in a criminal case shall provide reasonable
notice in advance of trial, or during trial if the court excuses
pretrial notice on good cause shown, of the general nature of any
such evidence it intends to introduce at trial.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 30, 1991, eff. Dec.
1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006.)
Rule 405. Methods of Proving Character
(a) Reputation or opinion.--In all cases in which evidence of
character or a trait of character of a person is admissible, proof
may be made by testimony as to reputation or by testimony in
the form of an opinion. On cross-examination, inquiry is allowable
into relevant specific instances of conduct.
(b) Specific instances of conduct.--In cases in which character or
a trait of character of a person is an essential element of a charge,
claim, or defense, proof may also be made of specific instances of
that person's conduct.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
5 Rule 410FEDERAL RULES OF EVIDENCE
Rule 406. Habit; Routine Practice
Evidence of the habit of a person or of the routine practice of
an organization, whether corroborated or not and regardless of the
presence of eyewitnesses, is relevant to prove that the conduct of
the person or organization on a particular occasion was in conformity
with the habit or routine practice.
Rule 407. Subsequent Remedial Measures
When, after an injury or harm allegedly caused by an event,
measures are taken that, if taken previously, would have made
the injury or harm less likely to occur, evidence of the subsequent
measures is not admissible to prove negligence, culpable conduct,
a defect in a product, a defect in a product's design, or a need for
a warning or instruction. This rule does not require the exclusion
of evidence of subsequent measures when offered for another purpose,
such as proving ownership, control, or feasibility of precautionary
measures, if controverted, or impeachment.
(As amended Apr. 11, 1997, eff. Dec. 1, 1997.)
Rule 408. Compromise and Offers to Compromise
(a) Prohibited uses.--Evidence of the following is not admissible
on behalf of any party, when offered to prove liability for, invalidity
of, or amount of a claim that was disputed as to validity or
amount, or to impeach through a prior inconsistent statement or
contradiction:
(1) furnishing or offering or promising to furnish--or accepting
or offering or promising to accept--a valuable consideration
in compromising or attempting to compromise the
claim; and
(2) conduct or statements made in compromise negotiations
regarding the claim, except when offered in a criminal case
and the negotiations related to a claim by a public office or
agency in the exercise of regulatory, investigative, or enforcement
authority.
(b) Permitted uses.--This rule does not require exclusion if the
evidence is offered for purposes not prohibited by subdivision (a).
Examples of permissible purposes include proving a witness's bias
or prejudice; negating a contention of undue delay; and proving an
effort to obstruct a criminal investigation or prosecution.
(As amended Apr. 12, 2006, eff. Dec. 1, 2006.)
Rule 409. Payment of Medical and Similar Expenses
Evidence of furnishing or offering or promising to pay medical,
hospital, or similar expenses occasioned by an injury is not admissible
to prove liability for the injury.
Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related
Statements
Except as otherwise provided in this rule, evidence of the following
is not, in any civil or criminal proceeding, admissible against
the defendant who made the plea or was a participant in the plea
discussions:
(1) a plea of guilty which was later withdrawn;
6Rule 411 FEDERAL RULES OF EVIDENCE
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings
under Rule 11 of the Federal Rules of Criminal Procedure or
comparable state procedure regarding either of the foregoing
pleas; or
(4) any statement made in the course of plea discussions
with an attorney for the prosecuting authority which do not
result in a plea of guilty or which result in a plea of guilty
later withdrawn.
However, such a statement is admissible (i) in any proceeding
wherein another statement made in the course of the same plea or
plea discussions has been introduced and the statement ought in
fairness be considered contemporaneously with it, or (ii) in a
criminal proceeding for perjury or false statement if the statement
was made by the defendant under oath, on the record and in
the presence of counsel.
(As amended Dec. 12, 1975; Apr. 30, 1979, eff. Dec. 1, 1980.)
Rule 411. Liability Insurance
Evidence that a person was or was not insured against liability
is not admissible upon the issue whether the person acted negligently
or otherwise wrongfully. This rule does not require the
exclusion of evidence of insurance against liability when offered
for another purpose, such as proof of agency, ownership, or control,
or bias or prejudice of a witness.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past
Sexual Behavior or Alleged Sexual Predisposition
(a) Evidence Generally Inadmissible.--The following evidence is
not admissible in any civil or criminal proceeding involving alleged
sexual misconduct except as provided in subdivisions (b) and
(c):
(1) Evidence offered to prove that any alleged victim engaged
in other sexual behavior.
(2) Evidence offered to prove any alleged victim's sexual pre-
disposition.
(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 evi-
dence;
(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
7 Rule 413FEDERAL RULES OF EVIDENCE
unfair prejudice to any party. Evidence of an alleged victim's reputation
is admissible only if it has been placed in controversy by
the alleged victim.
(c) Procedure To Determine Admissibility.
(1) A party intending to offer evidence under subdivision (b)
must--
(A) file a written motion at least 14 days before trial specifically
describing the evidence and stating the purpose for
which it is offered unless the court, for good cause requires a
different time for filing or permits filing during trial; and
(B) serve the motion on all parties and notify the alleged
victim or, when appropriate, the alleged victim's guardian or
representative.
(2) Before admitting evidence under this rule the court must
conduct a hearing in camera and afford the victim and parties a
right to attend and be heard. The motion, related papers, and the
record of the hearing must be sealed and remain under seal unless
the court orders otherwise.
(As added Oct. 28, 1978, eff. Nov. 28, 1978; amended Nov. 18, 1988;
Apr. 29, 1994, eff. Dec. 1, 1994; Sept. 13, 1994, eff. Dec. 1, 1994.)
Rule 413. Evidence of Similar Crimes in Sexual Assault Cases
(a) In a criminal case in which the defendant is accused of an offense
of sexual assault, evidence of the defendant's commission of
another offense or offenses of sexual assault is admissible, and
may be considered for its bearing on any matter to which it is rel-
evant.
(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 in-
volved--
(1) any conduct proscribed by chapter 109A of title 18, United
States Code;
(2) contact, without consent, between any part of the defendant's
body or an object and the genitals or anus of another
person;
(3) contact, without consent, between the genitals or anus of
the defendant and any part of another person's body;
(4) deriving sexual pleasure or gratification from the infliction
of death, bodily injury, or physical pain on another person;
or
(5) an attempt or conspiracy to engage in conduct described
in paragraphs (1)­(4).
(Added Sept. 13, 1994, eff. July 9, 1995.)
8Rule 414 FEDERAL RULES OF EVIDENCE
Rule 414. Evidence of Similar Crimes in Child Molestation Cases
(a) In a criminal case in which the defendant is accused of an offense
of child molestation, evidence of the defendant's commission
of another offense or offenses of child molestation is admissible,
and may be considered for its bearing on any matter to which it
is relevant.
(b) In a case in which the Government intends to offer evidence
under this rule, the attorney for the Government shall disclose
the evidence to the defendant, including statements of witnesses
or a summary of the substance of any testimony that is expected
to be offered, at least fifteen days before the scheduled date of
trial or at such later time as the court may allow for good cause.
(c) This rule shall not be construed to limit the admission or
consideration of evidence under any other rule.
(d) For purposes of this rule and Rule 415, ``child'' means a person
below the age of fourteen, and ``offense of child molestation''
means a crime under Federal law or the law of a State (as defined
in section 513 of title 18, United States Code) that involved--
(1) any conduct proscribed by chapter 109A of title 18, United
States Code, that was committed in relation to a child;
(2) any conduct proscribed by chapter 110 of title 18, United
States Code;
(3) contact between any part of the defendant's body or an
object and the genitals or anus of a child;
(4) contact between the genitals or anus of the defendant and
any part of the body of a child;
(5) deriving sexual pleasure or gratification from the infliction
of death, bodily injury, or physical pain on a child; or
(6) an attempt or conspiracy to engage in conduct described
in paragraphs (1)­(5).
(Added Sept. 13, 1994, eff. July 9, 1995.)
Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual
Assault or Child Molestation
(a) In a civil case in which a claim for damages or other relief
is predicated on a party's alleged commission of conduct constituting
an offense of sexual assault or child molestation, evidence
of that party's commission of another offense or offenses of
sexual assault or child molestation is admissible and may be considered
as provided in Rule 413 and Rule 414 of these rules.
(b) A party who intends to offer evidence under this Rule shall
disclose the evidence to the party against whom it will be offered,
including statements of witnesses or a summary of the substance
of any testimony that is expected to be offered, at least fifteen
days before the scheduled date of trial or at such later time as the
court may allow for good cause.
(c) This rule shall not be construed to limit the admission or
consideration of evidence under any other rule.
(Added Sept. 13, 1994, eff. July 9, 1995.)
ARTICLE V. PRIVILEGES
Rule 501. General Rule
Except as otherwise required by the Constitution of the United
States or provided by Act of Congress or in rules prescribed by the
9 Rule 606FEDERAL RULES OF EVIDENCE
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.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov.
1, 1988.)
Rule 603. Oath or Affirmation
Before testifying, every witness shall be required to declare that
the witness will testify truthfully, by oath or affirmation administered
in a form calculated to awaken the witness' conscience and
impress the witness' mind with the duty to do so.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
Rule 604. Interpreters
An interpreter is subject to the provisions of these rules relating
to qualification as an expert and the administration of an oath or
affirmation to make a true translation.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
Rule 605. Competency of Judge as Witness
The judge presiding at the trial may not testify in that trial as
a witness. No objection need be made in order to preserve the
point.
Rule 606. Competency of Juror as Witness
(a) At the trial.--A member of the jury may not testify as a witness
before that jury in the trial of the case in which the juror is
sitting. If the juror is called so to testify, the opposing party shall
be afforded an opportunity to object out of the presence of the
jury.
10Rule 607 FEDERAL RULES OF EVIDENCE
(b) Inquiry into validity of verdict or indictment.--Upon an inquiry
into the validity of a verdict or indictment, a juror may not
testify as to any matter or statement occurring during the course
of the jury's deliberations or to the effect of anything upon that
or any other juror's mind or emotions as influencing the juror to
assent to or dissent from the verdict or indictment or concerning
the juror's mental processes in connection therewith. But a juror
may testify about (1) whether extraneous prejudicial information
was improperly brought to the jury's attention, (2) whether any
outside influence was improperly brought to bear upon any juror,
or (3) whether there was a mistake in entering the verdict onto
the verdict form. A juror's affidavit or evidence of any statement
by the juror may not be received on a matter about which the
juror would be precluded from testifying.
(As amended Dec. 12, 1975; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 12,
2006, eff. Dec. 1, 2006.)
Rule 607. Who May Impeach
The credibility of a witness may be attacked by any party, including
the party calling the witness.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
Rule 608. Evidence of Character and Conduct of Witness
(a) Opinion and reputation evidence of character.--The credibility
of a witness may be attacked or supported by evidence in the
form of opinion or reputation, but subject to these limitations: (1)
the evidence may refer only to character for truthfulness or untruthfulness,
and (2) evidence of truthful character is admissible
only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise.
(b) Specific instances of conduct.--Specific instances of the conduct
of a witness, for the purpose of attacking or supporting the
witness' character for truthfulness, other than conviction of crime
as provided in rule 609, may not be proved by extrinsic evidence.
They may, however, in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on cross-examination
of the witness (1) concerning the witness' character for truthfulness
or untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness as to which
character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other
witness, does not operate as a waiver of the accused's or the witness'
privilege against self-incrimination when examined with respect
to matters that relate only to character for truthfulness.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov.
1, 1988; Mar. 27, 2003, eff. Dec. 1, 2003.)
Rule 609. Impeachment by Evidence of Conviction of Crime
(a) General rule.--For the purpose of attacking the character for
truthfulness of a witness,
(1) evidence that a witness other than an accused has been
convicted of a crime shall be admitted, subject to Rule 403, if
the crime was punishable by death or imprisonment in excess
11 Rule 610FEDERAL RULES OF EVIDENCE
of one year under the law under which the witness was convicted,
and evidence that an accused has been convicted of
such a crime shall be admitted if the court determines that
the probative value of admitting this evidence outweighs its
prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime
shall be admitted regardless of the punishment, if it readily
can be determined that establishing the elements of the crime
required proof or admission of an act of dishonesty or false
statement by the witness.
(b) Time limit.--Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed since the
date of the conviction or of the release of the witness from the
confinement imposed for that conviction, whichever is the later
date, unless the court determines, in the interests of justice, that
the probative value of the conviction supported by specific facts
and circumstances substantially outweighs its prejudicial effect.
However, evidence of a conviction more than 10 years old as calculated
herein, is not admissible unless the proponent gives to the
adverse party sufficient advance written notice of intent to use
such evidence to provide the adverse party with a fair opportunity
to contest the use of such evidence.
(c) Effect of pardon, annulment, or certificate of rehabilitation.--Evidence
of a conviction is not admissible under this rule
if (1) the conviction has been the subject of a pardon, annulment,
certificate of rehabilitation, or other equivalent procedure based
on a finding of the rehabilitation of the person convicted, and that
person has not been convicted of a subsequent crime that was punishable
by death or imprisonment in excess of one year, or (2) the
conviction has been the subject of a pardon, annulment, or other
equivalent procedure based on a finding of innocence.
(d) Juvenile adjudications.--Evidence of juvenile adjudications
is generally not admissible under this rule. The court may, however,
in a criminal case allow evidence of a juvenile adjudication
of a witness other than the accused if conviction of the offense
would be admissible to attack the credibility of an adult and the
court is satisfied that admission in evidence is necessary for a fair
determination of the issue of guilt or innocence.
(e) Pendency of appeal.--The pendency of an appeal therefrom
does not render evidence of a conviction inadmissible. Evidence of
the pendency of an appeal is admissible.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Jan. 26, 1990, eff. Dec.
1, 1990; Apr. 12, 2006, eff. Dec. 1, 2006.)
Rule 610. Religious Beliefs or Opinions
Evidence of the beliefs or opinions of a witness on matters of religion
is not admissible for the purpose of showing that by reason
of their nature the witness' credibility is impaired or enhanced.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
12Rule 611 FEDERAL RULES OF EVIDENCE
Rule 611. Mode and Order of Interrogation and Presentation
(a) Control by court.--The court shall exercise reasonable control
over the mode and order of interrogating witnesses and presenting
evidence so as to (1) make the interrogation and presentation
effective for the ascertainment of the truth, (2) avoid needless
consumption of time, and (3) protect witnesses from harassment
or undue embarrassment.
(b) Scope of cross-examination.--Cross-examination should be
limited to the subject matter of the direct examination and matters
affecting the credibility of the witness. The court may, in the
exercise of discretion, permit inquiry into additional matters as if
on direct examination.
(c) Leading questions.--Leading questions should not be used on
the direct examination of a witness except as may be necessary to
develop the witness' testimony. Ordinarily leading questions
should be permitted on cross-examination. When a party calls a
hostile witness, an adverse party, or a witness identified with an
adverse party, interrogation may be by leading questions.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
Rule 612. Writing Used To Refresh Memory
Except as otherwise provided in criminal proceedings by section
3500 of title 18, United States Code, if a witness uses a writing to
refresh memory for the purpose of testifying, either--
(1) while testifying, or
(2) before testifying, if the court in its discretion determines
it is necessary in the interests of justice,
an adverse party is entitled to have the writing produced at the
hearing, to inspect it, to cross-examine the witness thereon, and
to introduce in evidence those portions which relate to the testimony
of the witness. If it is claimed that the writing contains
matters not related to the subject matter of the testimony the
court shall examine the writing in camera, excise any portions
not so related, and order delivery of the remainder to the party
entitled thereto. Any portion withheld over objections shall be
preserved and made available to the appellate court in the event
of an appeal. If a writing is not produced or delivered pursuant to
order under this rule, the court shall make any order justice requires,
except that in criminal cases when the prosecution elects
not to comply, the order shall be one striking the testimony or,
if the court in its discretion determines that the interests of justice
so require, declaring a mistrial.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
Rule 613. Prior Statements of Witnesses
(a) Examining witness concerning prior statement.--In examining
a witness concerning a prior statement made by the witness,
whether written or not, the statement need not be shown nor its
contents disclosed to the witness at that time, but on request the
same shall be shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness.--Extrinsic
evidence of a prior inconsistent statement by a
13 Rule 702FEDERAL RULES OF EVIDENCE
witness is not admissible unless the witness is afforded an opportunity
to explain or deny the same and the opposite party is afforded
an opportunity to interrogate the witness thereon, or the
interests of justice otherwise require. This provision does not
apply to admissions of a party-opponent as defined in rule
801(d)(2).
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov.
1, 1988.)
Rule 614. Calling and Interrogation of Witnesses by Court
(a) Calling by court.--The court may, on its own motion or at
the suggestion of a party, call witnesses, and all parties are entitled
to cross-examine witnesses thus called.
(b) Interrogation by court.--The court may interrogate witnesses,
whether called by itself or by a party.
(c) Objections.--Objections to the calling of witnesses by the
court or to interrogation by it may be made at the time or at the
next available opportunity when the jury is not present.
Rule 615. Exclusion of Witnesses
At the request of a party the court shall order witnesses excluded
so that they cannot hear the testimony of other witnesses,
and it may make the order of its own motion. This rule does not
authorize exclusion of (1) a party who is a natural person, or (2)
an officer or employee of a party which is not a natural person
designated as its representative by its attorney, or (3) a person
whose presence is shown by a party to be essential to the presentation
of the party's cause, or (4) a person authorized by statute
to be present.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov.
1, 1988; Nov. 18, 1988; Apr. 24, 1998, eff. Dec. 1, 1998.)
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY
Rule 701. Opinion Testimony by Lay Witnesses
If the witness is not testifying as an expert, the witness' testimony
in the form of opinions or inferences is limited to those
opinions or inferences which are (a) rationally based on the perception
of the witness, and (b) helpful to a clear understanding of
the witness' testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec.
1, 2000.)
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based upon sufficient
facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
14Rule 703 FEDERAL RULES OF EVIDENCE
(As amended Apr. 17, 2000, eff. Dec. 1, 2000.)
Rule 703. Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made
known to the expert at or before the hearing. If of a type reasonably
relied upon by experts in the particular field in forming opinions
or inferences upon the subject, the facts or data need not be
admissible in evidence in order for the opinion or inference to be
admitted. Facts or data that are otherwise inadmissible shall not
be disclosed to the jury by the proponent of the opinion or inference
unless the court determines that their probative value in assisting
the jury to evaluate the expert's opinion substantially outweighs
their prejudicial effect.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec.
1, 2000.)
Rule 704. Opinion on Ultimate Issue
(a) Except as provided in subdivision (b), testimony in the form
of an opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the
trier of fact.
(b) No expert witness testifying with respect to the mental state
or condition of a defendant in a criminal case may state an opinion
or inference as to whether the defendant did or did not have
the mental state or condition constituting an element of the
crime charged or of a defense thereto. Such ultimate issues are
matters for the trier of fact alone.
(As amended Oct. 12, 1984.)
Rule 705. Disclosure of Facts or Data Underlying Expert Opinion
The expert may testify in terms of opinion or inference and give
reasons therefor without first testifying to the underlying facts or
data, unless the court requires otherwise. The expert may in any
event be required to disclose the underlying facts or data on cross-
examination.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 22, 1993, eff. Dec.
1, 1993.)
Rule 706. Court Appointed Experts
(a) Appointment.--The court may on its own motion or on the
motion of any party enter an order to show cause why expert witnesses
should not be appointed, and may request the parties to
submit nominations. The court may appoint any expert witnesses
agreed upon by the parties, and may appoint expert witnesses of
its own selection. An expert witness shall not be appointed by the
court unless the witness consents to act. A witness so appointed
shall be informed of the witness' duties by the court in writing,
a copy of which shall be filed with the clerk, or at a conference
in which the parties shall have opportunity to participate. A witness
so appointed shall advise the parties of the witness' findings,
if any; the witness' deposition may be taken by any party; and the
witness may be called to testify by the court or any party. The
15 Rule 801FEDERAL RULES OF EVIDENCE
witness shall be subject to cross-examination by each party, including
a party calling the witness.
(b) Compensation.--Expert witnesses so appointed are entitled
to reasonable compensation in whatever sum the court may allow.
The compensation thus fixed is payable from funds which may be
provided by law in criminal cases and civil actions and proceedings
involving just compensation under the fifth amendment. In
other civil actions and proceedings the compensation shall be paid
by the parties in such proportion and at such time as the court directs,
and thereafter charged in like manner as other costs.
(c) Disclosure of appointment.--In the exercise of its discretion,
the court may authorize disclosure to the jury of the fact that the
court appointed the expert witness.
(d) Parties' experts of own selection.--Nothing in this rule limits
the parties in calling expert witnesses of their own selection.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
ARTICLE VIII. HEARSAY
Rule 801. Definitions
The following definitions apply under this article:
(a) Statement.--A ``statement'' is (1) an oral or written assertion
or (2) nonverbal conduct of a person, if it is intended by the
person as an assertion.
(b) Declarant.--A ``declarant'' is a person who makes a state-
ment.
(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
16Rule 802 FEDERAL RULES OF EVIDENCE
authority under subdivision (C), the agency or employment relationship
and scope thereof under subdivision (D), or the existence
of the conspiracy and the participation therein of the
declarant and the party against whom the statement is offered
under subdivision (E).
(As amended Oct. 16, 1975, eff. Oct. 31, 1975; Mar. 2, 1987, eff. Oct.
1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997.)
Rule 802. Hearsay Rule
Hearsay is not admissible except as provided by these rules or
by other rules prescribed by the Supreme Court pursuant to statutory
authority or by Act of Congress.
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
(1) Present sense impression.--A statement describing or explaining
an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter.
(2) Excited utterance.--A statement relating to a startling
event or condition made while the declarant was under the
stress of excitement caused by the event or condition.
(3) Then existing mental, emotional, or physical condition.--
A statement of the declarant's then existing state of mind,
emotion, sensation, or physical condition (such as intent,
plan, motive, design, mental feeling, pain, and bodily health),
but not including a statement of memory or belief to prove
the fact remembered or believed unless it relates to the execution,
revocation, identification, or terms of declarant's will.
(4) Statements for purposes of medical diagnosis or treatment.--Statements
made for purposes of medical diagnosis or
treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general
character of the cause or external source thereof insofar as
reasonably pertinent to diagnosis or treatment.
(5) Recorded recollection.--A memorandum or record concerning
a matter about which a witness once had knowledge
but now has insufficient recollection to enable the witness to
testify fully and accurately, shown to have been made or
adopted by the witness when the matter was fresh in the witness'
memory and to reflect that knowledge correctly. If admitted,
the memorandum or record may be read into evidence
but may not itself be received as an exhibit unless offered by
an adverse party.
(6) Records of regularly conducted activity.--A memorandum,
report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses, made at or near the
time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business
activity to make the memorandum, report, record or data
compilation, all as shown by the testimony of the custodian or
other qualified witness, or by certification that complies with
Rule 902(11), Rule 902(12), or a statute permitting certification,
17 Rule 803FEDERAL RULES OF EVIDENCE
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 trust-
worthiness.
(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,
18Rule 803 FEDERAL RULES OF EVIDENCE
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 of-
fice.
(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,
19 Rule 804FEDERAL RULES OF EVIDENCE
but not including, when offered by the Government in a criminal
prosecution for purposes other than impeachment, judgments
against persons other than the accused. The pendency
of an appeal may be shown but does not affect admissibility.
(23) Judgment as to personal, family, or general history, or
boundaries.--Judgments as proof of matters of personal, family
or general history, or boundaries, essential to the judgment,
if the same would be provable by evidence of reputation.
(24) [Other exceptions.] [Transferred to Rule 807]
(As amended Dec. 12, 1975; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 11,
1997, eff. Dec. 1, 1997; Apr. 17, 2000, eff. Dec. 1, 2000.)
Rule 804. Hearsay Exceptions; Declarant Unavailable
(a) Definition of unavailability.--``Unavailability as a witness''
includes situations in which the declarant--
(1) is exempted by ruling of the court on the ground of privilege
from testifying concerning the subject matter of the declarant's
statement; or
(2) persists in refusing to testify concerning the subject matter
of the declarant's statement despite an order of the court
to do so; or
(3) testifies to a lack of memory of the subject matter of the
declarant's statement; or
(4) is unable to be present or to testify at the hearing because
of death or then existing physical or mental illness or
infirmity; or
(5) is absent from the hearing and the proponent of a statement
has been unable to procure the declarant's attendance
(or in the case of a hearsay exception under subdivision (b)(2),
(3), or (4), the declarant's attendance or testimony) by process
or other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal,
claim of lack of memory, inability, or absence is due to the procurement
or wrongdoing of the proponent of a statement for the
purpose of preventing the witness from attending or testifying.
(b) Hearsay exceptions.--The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony.--Testimony given as a witness at another
hearing of the same or a different proceeding, or in a
deposition taken in compliance with law in the course of the
same or another proceeding, if the party against whom the
testimony is now offered, or, in a civil action or proceeding,
a predecessor in interest, had an opportunity and similar motive
to develop the testimony by direct, cross, or redirect ex-
amination.
(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
20Rule 805 FEDERAL RULES OF EVIDENCE
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 state-
ment.
(4) Statement of personal or family history.--(A) A statement
concerning the declarant's own birth, adoption, marriage,
divorce, legitimacy, relationship by blood, adoption, or
marriage, ancestry, or other similar fact of personal or family
history, even though declarant had no means of acquiring personal
knowledge of the matter stated; or (B) a statement concerning
the foregoing matters, and death also, of another person,
if the declarant was related to the other by blood, adoption,
or marriage or was so intimately associated with the
other's family as to be likely to have accurate information
concerning the matter declared.
(5) [Other exceptions.] [Transferred to Rule 807]
(6) Forfeiture by wrongdoing.--A statement offered against a
party that has engaged or acquiesced in wrongdoing that was
intended to, and did, procure the unavailability of the declarant
as a witness.
(As amended Dec. 12, 1975; Mar. 2, 1987, eff. Oct. 1, 1987; Nov. 18,
1988; Apr. 11, 1997, eff. Dec. 1, 1997.)
Rule 805. Hearsay Within Hearsay
Hearsay included within hearsay is not excluded under the hearsay
rule if each part of the combined statements conforms with an
exception to the hearsay rule provided in these rules.
Rule 806. Attacking and Supporting Credibility of Declarant
When a hearsay statement, or a statement defined in Rule
801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility
of the declarant may be attacked, and if attacked may be
supported, by any evidence which would be admissible for those
purposes if declarant had testified as a witness. Evidence of a
statement or conduct by the declarant at any time, inconsistent
with the declarant's hearsay statement, is not subject to any requirement
that the declarant may have been afforded an opportunity
to deny or explain. If the party against whom a hearsay
statement has been admitted calls the declarant as a witness, the
party is entitled to examine the declarant on the statement as if
under cross-examination.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 11, 1997, eff. Dec.
1, 1997.)
Rule 807. Residual Exception
A statement not specifically covered by Rule 803 or 804 but having
equivalent circumstantial guarantees of trustworthiness, is
not excluded by the hearsay rule, if the court determines that (A)
the statement is offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered
than any other evidence which the proponent can procure through
21 Rule 901FEDERAL RULES OF EVIDENCE
reasonable efforts; and (C) the general purposes of these rules and
the interests of justice will best be served by admission of the
statement into evidence. However, a statement may not be admitted
under this exception unless the proponent of it makes known
to the adverse party sufficiently in advance of the trial or hearing
to provide the adverse party with a fair opportunity to prepare to
meet it, the proponent's intention to offer the statement and the
particulars of it, including the name and address of the declarant.
(Added Apr. 11, 1997, eff. Dec. 1, 1997.)
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
Rule 901. Requirement of Authentication or Identification
(a) General provision.--The requirement of authentication or
identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in
question is what its proponent claims.
(b) Illustrations.--By way of illustration only, and not by way
of limitation, the following are examples of authentication or
identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge.--Testimony that a
matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting.--Nonexpert opinion
as to the genuineness of handwriting, based upon familiarity
not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness.--Comparison by
the trier of fact or by expert witnesses with specimens which
have been authenticated.
(4) Distinctive characteristics and the like.--Appearance,
contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.
(5) Voice identification.--Identification of a voice, whether
heard firsthand or through mechanical or electronic transmission
or recording, by opinion based upon hearing the voice
at any time under circumstances connecting it with the alleged
speaker.
(6) Telephone conversations.--Telephone conversations, by
evidence that a call was made to the number assigned at the
time by the telephone company to a particular person or business,
if (A) in the case of a person, circumstances, including
self-identification, show the person answering to be the one
called, or (B) in the case of a business, the call was made to
a place of business and the conversation related to business
reasonably transacted over the telephone.
(7) Public records or reports.--Evidence that a writing authorized
by law to be recorded or filed and in fact recorded or
filed in a public office, or a purported public record, report,
statement, or data compilation, in any form, is from the public
office where items of this nature are kept.
(8) Ancient documents or data compilation.--Evidence that
a document or data compilation, in any form, (A) is in such
condition as to create no suspicion concerning its authenticity,
(B) was in a place where it, if authentic, would likely be,
and (C) has been in existence 20 years or more at the time it
is offered.
22Rule 902 FEDERAL RULES OF EVIDENCE
(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.
23 Rule 902FEDERAL RULES OF EVIDENCE
(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
24Rule 903 FEDERAL RULES OF EVIDENCE
all adverse parties, and must make the record and declaration
available for inspection sufficiently in advance of
their offer into evidence to provide an adverse party with
a fair opportunity to challenge them.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov.
1, 1988; Apr. 17, 2000, eff. Dec. 1, 2000.)
Rule 903. Subscribing Witness' Testimony Unnecessary
The testimony of a subscribing witness is not necessary to authenticate
a writing unless required by the laws of the jurisdiction
whose laws govern the validity of the writing.
ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND
PHOTOGRAPHS
Rule 1001. Definitions
For purposes of this article the following definitions are applica-
ble:
(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--
25 Rule 1008FEDERAL RULES OF EVIDENCE
(1) Originals lost or destroyed.--All originals are lost or have
been destroyed, unless the proponent lost or destroyed them in
bad faith; or
(2) Original not obtainable.--No original can be obtained by
any available judicial process or procedure; or
(3) Original in possession of opponent.--At a time when an
original was under the control of the party against whom offered,
that party was put on notice, by the pleadings or otherwise,
that the contents would be a subject of proof at the hearing,
and that party does not produce the original at the hearing;
or
(4) Collateral matters.--The writing, recording, or photograph
is not closely related to a controlling issue.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
Rule 1005. Public Records
The contents of an official record, or of a document authorized
to be recorded or filed and actually recorded or filed, including
data compilations in any form, if otherwise admissible, may be
proved by copy, certified as correct in accordance with rule 902 or
testified to be correct by a witness who has compared it with the
original. If a copy which complies with the foregoing cannot be
obtained by the exercise of reasonable diligence, then other evidence
of the contents may be given.
Rule 1006. Summaries
The contents of voluminous writings, recordings, or photographs
which cannot conveniently be examined in court may be presented
in the form of a chart, summary, or calculation. The originals, or
duplicates, shall be made available for examination or copying, or
both, by other parties at reasonable time and place. The court
may order that they be produced in court.
Rule 1007. Testimony or Written Admission of Party
Contents of writings, recordings, or photographs may be proved
by the testimony or deposition of the party against whom offered
or by that party's written admission, without accounting for the
nonproduction of the original.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
Rule 1008. Functions of Court and Jury
When the admissibility of other evidence of contents of writings,
recordings, or photographs under these rules depends upon the fulfillment
of a condition of fact, the question whether the condition
has been fulfilled is ordinarily for the court to determine in accordance
with the provisions of rule 104. However, when an issue
is raised (a) whether the asserted writing ever existed, or (b)
whether another writing, recording, or photograph produced at
the trial is the original, or (c) whether other evidence of contents
correctly reflects the contents, the issue is for the trier of fact to
determine as in the case of other issues of fact.
26Rule 1101 FEDERAL RULES OF EVIDENCE
1 Pub. L. 102­572, title IX, § 902(b)(1), Oct. 29, 1992, 106 Stat. 4516, provided that reference in any
other Federal law or any document to the ``United States Claims Court'' shall be deemed to refer
to the ``United States Court of Federal Claims''.
ARTICLE XI. MISCELLANEOUS RULES
Rule 1101. Applicability of Rules
(a) Courts and judges.--These rules apply to the United States
district courts, the District Court of Guam, the District Court of
the Virgin Islands, the District Court for the Northern Mariana Islands,
the United States courts of appeals, the United States
Claims Court, 1 and to United States bankruptcy judges and
United States magistrate judges, in the actions, cases, and proceedings
and to the extent hereinafter set forth. The terms
``judge'' and ``court'' in these rules include United States bankruptcy
judges and United States magistrate judges.
(b) Proceedings generally.--These rules apply generally to civil
actions and proceedings, including admiralty and maritime cases,
to criminal cases and proceedings, to contempt proceedings except
those in which the court may act summarily, and to proceedings
and cases under title 11, United States Code.
(c) Rule of privilege.--The rule with respect to privileges applies
at all stages of all actions, cases, and proceedings.
(d) Rules inapplicable.--The rules (other than with respect to
privileges) do not apply in the following situations:
(1) Preliminary questions of fact.--The determination of
questions of fact preliminary to admissibility of evidence
when the issue is to be determined by the court under rule 104.
(2) Grand jury.--Proceedings before grand juries.
(3) Miscellaneous proceedings.--Proceedings for extradition
or rendition; preliminary examinations in criminal cases; sentencing,
or granting or revoking probation; issuance of warrants
for arrest, criminal summonses, and search warrants;
and proceedings with respect to release on bail or otherwise.
(e) Rules applicable in part.--In the following proceedings these
rules apply to the extent that matters of evidence are not provided
for in the statutes which govern procedure therein or in
other rules prescribed by the Supreme Court pursuant to statutory
authority: the trial of misdemeanors and other petty offenses
before United States magistrate judges; review of agency actions
when the facts are subject to trial de novo under section 706(2)(F)
of title 5, United States Code; review of orders of the Secretary of
Agriculture under section 2 of the Act entitled ``An Act to authorize
association of producers of agricultural products'' approved
February 18, 1922 (7 U.S.C. 292), and under sections 6 and 7(c) of the
Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499f,
499g(c)); naturalization and revocation of naturalization under
sections 310­318 of the Immigration and Nationality Act (8 U.S.C.
1421­1429); prize proceedings in admiralty under sections 7651­7681
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
27 Rule 1103FEDERAL RULES OF EVIDENCE
2 Repealed and reenacted as 46 U.S.C. 11104(b)­(d) by Pub. L. 98­89, §§ 1, 2(a), 4(b), Aug. 26, 1983, 97
Stat. 500.
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. 1581­1624), or under the Anti-Smuggling Act
(19 U.S.C. 1701­1711); criminal libel for condemnation, exclusion of
imports, or other proceedings under the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 301­392); disputes between seamen under
sections 4079, 4080, and 4081 of the Revised Statutes (22 U.S.C.
256­258); habeas corpus under sections 2241­2254 of title 28, United
States Code; motions to vacate, set aside or correct sentence
under section 2255 of title 28, United States Code; actions for penalties
for refusal to transport destitute seamen under section 4578
of the Revised Statutes (46 U.S.C. 679); 2 actions against the United
States under the Act entitled ``An Act authorizing suits against
the United States in admiralty for damage caused by and salvage
service rendered to public vessels belonging to the United States,
and for other purposes'', approved March 3, 1925 (46 U.S.C. 781­790),
as implemented by section 7730 of title 10, United States Code.
(As amended Dec. 12, 1975; Nov. 6, 1978, eff. Oct. 1, 1979; Apr. 2, 1982,
eff. Oct. 1, 1982; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov.
1, 1988; Nov. 18, 1988; Apr. 22, 1993, eff. Dec. 1, 1993.)
Rule 1102. Amendments
Amendments to the Federal Rules of Evidence may be made as
provided in section 2072 of title 28 of the United States Code.
(As amended Apr. 30, 1991, eff. Dec. 1, 1991.)
Rule 1103. Title
These rules may be known and cited as the Federal Rules of Evi-
dence.