/* The federal rules of evidence are the basis for many state

court laws. First of all, it is important to remember that these

rules are intended as rules of admission of evidence. */

ARTICLE I. GENERAL PROVISIONS

Rule 101. Scope

These rules govern proceedings in the courts of the United States

and before United States magistrates, to the extent and with the

exceptions stated in rule 1101.

Rule 102. Purpose and Construction

These rules shall be construed to secure fairness in

administration, elimination of unjustifiable expense and delay,

and promotion of growth and development of the law of evidence to

the end that the truth may be ascertained and proceedings justly

determined

Rule 103. Rulings on Evidence

(a) Effect of erroneous ruling. Error may not be predicated upon

a ruling which admits or excludes evidence unless a substantial

right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a

timely objection or motion to strike appears of record, stating

the specific ground of objection, if the specific ground was not

apparent from the context; or

(2) Offer or proof. In case the ruling is one excluding evidence,

the substance of the evidence was made known to the court by

offer or was apparent from the context within which questions

were asked.

(b) Record of offer and ruling. The court may add any other or

further statement which shows the character of the evidence, the

form in which it was offered, the objection made, and the ruling

thereon. It may direct the making of an offer in question and

answer form.

/* Important to make these proffers to preserve the appellate

review of the exclusion of evidence. */

(c) Hearing of jury. In jury cases, proceedings shall be

conducted, to the extent practicable, so as to prevent

inadmissible evidence from being suggested to the jury by any

means, such as making statements or offers of proof or asking

questions in the hearing of the jury.

(d) Plain Error. Nothing in this rule precludes taking notice of

plain errors affecting substantial rights although they were not

brought to the attention of the court.

Rule 104. Preliminary Questions

(a) Questions of admissibility generally. Preliminary questions

concerning the qualification of a person to be a witness, the

existence of a privilege, or the admissibility of evidence shall

be determined by the court, subject to the provisions of

subdivision (b). In making its determination it is not bound by

the rules of evidence except those with respect to privileges.

(b) Relevancy conditioned on fact. When the relevancy of

evidence depends upon the fulfillment of a condition of fact, the

court shall admit it upon, or subject to, the introduction of

evidence sufficient to support a finding of the fulfillment of

the condition.

/* In criminal trials the "I'll tie this into the conspiracy

later rule." Of course this is a difficult point for the criminal

defense attorney since it is hard to "un-ring" bells. */

(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, if he so requests.

(d) Testimony by accused. The accused does not, by testifying

upon a preliminary matter, subject himself to cross-examination

as to other issues in the case.

(e) Weight and Credibility. This rule does not limit the right

of a party to introduce before the jury evidence relevant to

weight or credibility.

Rule 105. Limited Admissibility

When evidence which is admissible as to one party or for one

purpose but not admissible as to another party or for another

purpose is admitted, the court, upon request, shall restrict the

evidence to its proper scope and instruct the jury accordingly.

/* Good luck. As stated in the initial comments to these rules,

they are rules for the inclusion of evidence. This rule is used

again and again to allow introduction of evidence which relates

to just one party to the jury under the hypothesis that curative

instructions, which this rule calls for, are sufficient to

prevent prejudicial overspill. */

Rule 106. Remainder of or Related Writings or Recorded Statements

When a writing or recorded statement or part thereof is

introduced by a party, an adverse party may require him at that

time to introduce any other part or any other writing or recorded

statement which ought in fairness to be considered

contemporaneously with it.

ARTICLE II. JUDICIAL NOTICE

Rule 201. Judicial Notice of Adjudicative Facts

(a) Scope of rule. This rule governs only judicial notice of

adjudicative facts.

(b) Kinds of facts. A judicially noticed fact must be one not

subject to reasonable dispute in that it is either (1) generally

known within the territorial jurisdiction of the trial court or

(2) capable of accurate and ready determination by resort to

sources whose accuracy cannot reasonably be questioned.

(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 & PROCEEDINGS

Rule 301. Presumptions in General in Civil Actions and Proceedings

In all civil actions and proceedings not otherwise provided for

by Act of Congress or by these rules, a presumption imposes on

the party against whom it is directed the burden of going forward

with evidence to rebut or meet the presumption, but does not

shift to such party the burden of proof in the sense of the risk

of nonpersuasion, which remains throughout the trial upon the

party on whom it was originally cast.

Rule 302. Applicability of State Law in Civil Actions and

Proceedings

In civil actions and proceedings, the effect of a presumption

respecting a fact which is an element of a claim or defense as to

which State law supplies the rule of decision is determined in

accordance with State law.

ARTICLE IV. RELEVANCY & ITS LIMITS

Rule 401. Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make

the existence of any fact that is of consequence to the

determination of the action more probable or less probable than

it would be without the evidence.

Rule 402. Relevant Evidence Generally Admissible; Irrelevant

Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided

by the Constitution of the United States, by Act of Congress, by

these rules, or by other rules prescribed by the Supreme Court

pursuant to statutory authority. Evidence which is not relevant

is not admissible.

/* A general rule of inclusion of all "relevant evidence." */

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice,

Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.

Rule 404. Character Evidence Not Admissible to Prove Conduct;

Exceptions; Other Crimes

(a) Character evidence generally. Evidence of a person's

character or a trait of his character is not admissible for the

purpose of proving that he acted in conformity therewith on a

particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of his

character offered by an accused, or by the prosecution to rebut

the same;

(2) Character of victim. Evidence of a pertinent trait of

character of the victim of the crime offered by an accused, or by

the prosecution to rebut the same, or evidence of a character

trait of peacefulness of the victim offered by the prosecution in

a homicide case to rebut evidence that the victim was the first

aggressor;

(3) Character of witness. Evidence of the character of a

witness, as provided in rules 607, 608 and 609.

(b) Other crimes, wrongs, or acts. Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a

person in order to show that he acted in conformity therewith. It

may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.

/* The latter part of this section is used by prosecutors to

admit everything bad about the defendant on the idea that the

"motive" and "intent" of the defendant are always in issue. */

Rule 405. Methods of Proving Character

(a) Reputation or opinion. In all cases in which evidence of

character or a trait of character of a person is admissible,

proof may be made by testimony as to reputation or by testimony

in the form of an opinion. On cross-examination, inquiry is

allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character

or a trait of character of a person is an essential element of a

charge, claim, or defense, proof may also be made of specific

instances of his conduct.

Rule 406. Habit; Routine Practice

Evidence of the habit of a person or of the routine practice of

an organization, whether corroborated or not and regardless of

the presence of eyewitnesses, is relevant to prove that the

conduct of the person or organization on a particular occasion

was in conformity with the habit or routine practice.

Rule 407. Subsequent Remedial Measures

When, after an event, measures are taken which, if taken

previously, would have made the event less likely to occur,

evidence of the subsequent measures is not admissible to prove

negligence or culpable conduct in connection with the event. This

rule does not require the exclusion of evidence of subsequent

measures when offered for another purpose, such as proving

ownership, control, or feasibility of precautionary measures, if

controverted, or impeachment.

/* A general rule that if someone fixes the hole in the sidewalk

after a suit is filed for a fall on a sidewalk that it is not

admissible as evidence of negligence, or else the sidewalks would

never get fixed. However, if the person says "it's not my

sidewalk that they may have fell on" then the fact that they paid

to fix the hole is relevant to prove their ownership or control

of that sidewalk. */

Rule 408. Compromise or Offers to Compromise

Evidence of (1) furnishing or offering or promising to furnish,

or

(2) accepting or offering or promising to accept, a valuable

consideration in compromising or attempting to compromise a claim

which was disputed as to either validity or amount, is not

admissible to prove liability for or invalidity of the claim or

its amount.

Evidence of conduct or statements made in compromise negotiations

is likewise not admissible. This rule does not require the

exclusion of any evidence otherwise discoverable merely because

it is presented in the course of compromise negotiations. This

rule also does not require exclusion when the evidence is offered

for another purpose, such as proving bias or prejudice of a

witness, negativing a contention of undue delay, or proving an

effort to obstruct a criminal investigation or prosecution.

Rule 409. Payment of Medical and Similar Expenses

Evidence of furnishing or offering or promising to pay medical,

hospital, or similar expenses occasioned by an injury is not

admissible to prove liability for the injury.

/* This is to encourage humanitarian payment of hospital bills.

*/

Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related

Statements

Except as otherwise provided in this rule, evidence of the

following is not, in any civil or criminal proceeding, admissible

against the defendant who made the plea or was a participant in

the plea discussions:

(1) a plea of guilt which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under

Rule 11 of the Federal Rules of Criminal Procedure or comparable

state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an

attorney for the prosecuting authority which do not result in a

plea of guilty or which result in a plea of guilty later

withdrawn.

However, such a statement is admissible (i) in any proceeding

wherein another statement made in the course of the same plea or

plea discussions has been introduced and the statement ought in

fairness be considered contemporaneously with it, or (ii) in a

criminal proceeding for perjury or false statement if the

statement was made by the defendant under oath, on the record and

in the presence of counsel.

Rule 411. Liability Insurance

Evidence that a person was or was not insured against liability

is not admissible upon the issue whether he acted negligently or

otherwise wrongfully. The rule does not require the exclusion of

evidence of insurance against liability when offered for another

purpose, such as proof of agency, ownership, or control, or bias

or prejudice of a witness.

Rule 412. Rape Cases; Relevance of Victim's Past Behavior

(a) Notwithstanding any other provision of law, in a criminal

case in which a person is accused of rape or of assault with

intent to commit rape, reputation or opinion evidence of the past

sexual behavior of an alleged victim of such rape or assault is

not admissible.

(b) Notwithstanding any other provision of law, in a criminal

case in which a person is accused of rape or of assault with

intent to commit rape, evidence of a victim's past sexual

behavior other than reputation or opinion evidence is also not

admissible, unless such evidence other than reputation or opinion

evidence is -

(1) admitted in accordance with subdivisions (c)(1) and (c)(2)

and is constitutionally required to be admitted; or

(2) admitted in accordance with subdivision (c) and is evidence

of:

(A) past sexual behavior with persons other than the accused,

offered by the accused upon the issue of whether the accused was

or was not, with respect to the alleged victim, the source of

semen or injury; or

(B) past sexual behavior with the accused and is offered by the

accused upon the issue of whether the alleged victim consented to

the sexual behavior with respect to which rape or assault is

alleged.

(c)(1) If the person accused of committing rape or assault with

intent to commit rape intends to offer under subdivision (b)

evidence of specific instances of the alleged victim's past

sexual behavior, the accused shall make a written motion to offer

such evidence not later than fifteen days before the date on

which the trial in which such evidence is to be offered is

scheduled to begin, except that the court may allow the motion to

be made at a later date, including during trial, if the court

determines either that the evidence is newly discovered and could

not have been obtained earlier through the exercise of due

diligence or that the issue to which such evidence relates has

newly arisen in the case. Any motion made under this paragraph

shall be served on all other parties and on the alleged victim.

(2) The motion described in paragraph (1) shall be accompanied by

a written offer of proof. If the court determines that the offer

of proof contains evidence described in subdivision (b), the

court shall order a hearing in chambers to determine if such

evidence is admissible. At such hearing the parties may call

witnesses, including the alleged victim, and offer relevant

evidence. Notwithstanding subdivision (b) of rule 104, if the

relevancy of the evidence which the accused seeks to offer in the

trial depends upon the fulfillment of a condition of fact, the

court, at the hearing in chambers or at a subsequent hearing in

chambers scheduled for such purpose, shall accept evidence on the

issue of whether such condition of fact is fulfilled and shall

determine such issue.

(3) If the court determines on the basis of the hearing described

in paragraph (2) that the evidence which the accused seeks to

offer is relevant and that the probative value of such evidence

outweighs the danger of unfair prejudice, such evidence shall be

admissible in the trial to the extent an order made by court

specifies evidence which may be offered and areas with respect to

which the alleged victim may be examined and cross-examined.

(d) For purposes of this rule, the term "past sexual behavior"

means sexual behavior other than the sexual behavior with respect

to which rape or assault with intent to commit rape is alleged.

ARTICLE V. PRIVILEGES

Rule 501. General Rule

Except as otherwise required by the Constitution of the United

States or provided by Act of Congress or in rules prescribed by

the Supreme Court pursuant to statutory authority, the privilege

of a witness, person, government, State, or political subdivision

thereof shall be governed by the principles of the common law as

they may be interpreted by the courts of the United States in the

light of reason and experience. However, in civil actions and

proceedings, with respect to an element of a claim or defense as

to which State law supplies the rule of decision, the privilege

of a witness, person, government, State, or political subdivision

thereof shall be determined in accordance with State law.

ARTICLE VI. WITNESSES

Rule 601. General Rule of Competency

Every person is competent to be a witness except as otherwise

provided in these rules. However, in civil action and

proceedings, with respect to an element of a claim or defense as

to which State law supplies the rule of decision, the competency

of a witness shall be determined in accordance with State law.

Rule 602. Lack of Personal Knowledge

A witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that he has personal

knowledge of the matter. Evidence to prove personal knowledge

may, but need not, consist of the testimony of the witness

himself. This rule is subject to the provisions of rule 703,

relating to opinion testimony by expert witness.

Rule 603. Oath or Affirmation

Before testifying, every witness shall be required to declare

that he will testify truthfully, by oath or affirmation

administered in a form calculated to awaken his conscience and

impress his mind with his duty to do so.

Rule 604. Interpreters

An interpreter is subject to the provisions of these rules

relating to qualification as an expert and the administration of

an oath or affirmation that he will make a true translation.

Rule 605. Competency of Judge as Witness

The judge presiding at the trial may not testify in that trial as

a witness. No objection need be made in order to preserve the

point.

Rule 606. Competency of Juror as Witness

(a) At the trial. A member of the jury may not testify as a

witness before that jury in the trial of the case in which he is

sitting as a juror. If he is called so to testify, the opposing

party shall be afforded an opportunity to object out of the

presence of the jury.

(b) Inquiry into validity of verdict or indictment. Upon an

inquiry into the validity of a verdict or indictment, a juror may

not testify as to any matter or statement occurring during the

course of the jury's deliberations or to the effect of anything

upon his or any other juror's mind or emotions as influencing him

to assent to or dissent from the verdict or indictment or

concerning his mental processes in connection therewith, except

that a juror may testify on the question whether extraneous

prejudicial information was improperly brought to the jury's

attention or whether any outside influence was improperly brought

to bear upon any juror. Nor may his affidavit or evidence of any

statement by him concerning a matter about which he would be

precluded from testifying be received for these purposes.

Rule 607. Who May Impeach

The credibility of a witness may be attacked by any party,

including the party calling him.

/* An important change over common law rules in which you could

only discredit your own witnesses in rare cases. */

Rule 608. Evidence of Character and Conduct of Witness

(a) Opinion and reputation evidence of character. The credibility

of a witness may be attacked or supported by evidence in the form

of opinion or reputation, but subject to these limitations: (1)

the evidence may refer only to character for truthfulness or

untruthfulness, and (2) evidence of truthful character is

admissible only after the character of the witness for

truthfulness has been attacked by opinion or reputation evidence

or otherwise.

(b) Specific instances of conduct. Specific instances of the

conduct of a witness, for the purpose of attacking or supporting

his credibility, other than conviction of crime as provided in

rule 609, may not be proved by extrinsic evidence. They may,

however, in the discretion of the court, if probative of

truthfulness or untruthfulness, be inquired into on

cross-examination of the witness

(1) concerning his character for truthfulness or untruthfulness,

or

(2) concerning the character for truthfulness or untruthfulness

of another witness as to which character the witness being

cross-examined has testified.

The giving of testimony, whether by an accused or by any other

witness, does not operate as a waiver of his privilege against

self- incrimination when examined with respect to matters which

relate only to credibility.

Rule 609. Impeachment by evidence of Conviction of Crime

(a) General rule. For the purpose of attacking the credibility

of a witness, evidence that he has been convicted of a crime

shall be admitted if elicited from him or established by public

record during cross-examination but only if the crime (1) was

punishable by death or imprisonment in excess of one year under

the law under which he was convicted, and the court determines

that the probative value of admitting this evidence outweighs its

prejudicial effect to the defendant, or (2) involved dishonesty

or false statement, regardless of the punishment.

(b) Time limit. Evidence of a conviction under this rule is not

admissible if a period of more than ten years has elapsed since

the date of the conviction or of the release of the witness from

the confinement imposed for that conviction, whichever is the

later date, unless the court determines, in the interests of

justice, that the probative value of the conviction supported by

specific facts and circumstances substantially outweighs its

prejudicial effect. However, evidence of a conviction more than

10 year old as calculated herein, is not admissible unless the

proponent gives to the adverse party sufficient advance written

notice of intent to use such evidence to provide the adverse

party with a fair opportunity to contest the use of such

evidence.

(c) Effect of pardon, annulment, or certificate of

rehabilitation. Evidence of a conviction is not admissible under

this rule if (1) the conviction has been the subject of a pardon,

annulment, certificate of rehabilitation, or other equivalent

procedure based on a finding of the rehabilitation of the person

convicted, and that person has not been convicted of a subsequent

crime which was punishable by death or imprisonment in excess of

one year, or (2) the conviction has been the subject of a pardon,

annulment, or other equivalent procedure based on a finding of

innocence.

(d) Juvenile adjudications. Evidence of juvenile adjudications is

generally not admissible under this rule. The court may, however,

in a criminal case allow evidence of a juvenile adjudication of a

witness other than the accused if conviction of the offense would

be admissible to attack the credibility of an adult and the court

is satisfied that admission in evidence is necessary for a fair

determination of the issue of guilt or innocence.

(e) Pendency of appeal. The pendency of an appeal therefrom does

not render evidence of a conviction inadmissible. Evidence of the

pendency of an appeal is admissible.

Rule 610. Religious Beliefs or Opinions

Evidence of the beliefs or opinions of a witness on matters of

religion is not admissible for the purpose of showing that by

reason of their nature his credibility is impaired or enhanced.

Rule 611. Mode and Order of Interrogation and Presentation

(a) Control by court. The court shall exercise reasonable

control over the mode and order of interrogating witnesses and

presenting evidence so as to (1) make the interrogation and

presentation effective for the ascertainment of the truth, (2)

avoid needless consumption of time, and (3) protect witnesses

from harassment or undue embarrassment.

(b) Scope of cross-examination. Cross examination should be

limited to the subject matter of the direct examination and

matters affecting the credibility of the witness. The court may,

in the exercise of discretion, permit inquiry into additional

matters as if on direct examination.

(c) Leading questions. Leading questions should not be used on

the direct examination of a witness except as may be necessary to

develop his testimony. Ordinarily leading questions should be

permitted on cross-examination. When a party calls a hostile

witness, an adverse party, or a witness identified with an

adverse party, interrogation may be by leading questions.

Rule 612. Writing Used to Refresh Memory

Except as otherwise provided in criminal proceedings by section

3500 of title 18, United States Code, if a witness uses a writing

to refresh his memory for the purpose of testifying, either-

(1) while testifying, or

(2) before testifying, if the court in its discretion determines

it is necessary in the interests of justice, an adverse party is

entitled to have the writing produced at the hearing, to inspect

it, to cross-examine the witness thereon, and to introduce in

evidence those portions which relate to the testimony of the

witness. If it is claimed that the writing contains matters not

related to the subject matter of the testimony the court shall

examine the writing in camera, excise any portions not so

related, and order delivery of the remainder to the party

entitled thereto. Any portion withheld over objections shall be

preserved and made available to the appellate court in the event

of an appeal. If a writing is not produced or delivered pursuant

to order under this rule, the court shall make any order justice

requires, except that in criminal cases when the prosecution

elects not to comply, the order shall be one striking the

testimony or, if the court in its discretion determines that the

interests of justice so require, declaring a mistrial.

/* Witnesses in many cases ask for permission to look at their

notes, etc. this is especially true when a professional like a

doctor who has many patients or who is testifying on a technical

matter and needs to look at their notes; no permission is

required and use of notes is permitted, although the parties can

request seeing the notes, and in criminal cases the Jencks Act

may require production of such notes. */

Rule 613. Prior Statements of Witnesses

(a) Examining witness concerning prior statement. In examining a

witness concerning a prior statement made by him, whether written

or not, the statement need not be shown nor its contents

disclosed to him at that time, but on request the same shall be

shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of

witness. Extrinsic evidence of a prior inconsistent statement by

a witness is not admissible unless the witness is afforded an

opportunity to explain or deny the same and the opposite party is

afforded an opportunity to interrogate him thereon, or the

interests of justice otherwise require. This provision does not

apply to admissions of a party-opponent as defined in rule

801(d)(2).

Rule 614. Calling and Interrogation of Witness by Court

(a) Calling by court. The court may, on its own motion or at the

suggestion of a party, call witnesses, and all parties are

entitled to cross-examine witnesses thus called.

(b) Interrogation by court. The court may interrogate witnesses,

whether called by itself or by a party.

(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 his cause.

/* We continue with Rule 701 to the conclusion in part two. */