Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fedr/evid2.asc

Text File | 1993-08-16 | 34.2 KB | 741 lines

/* The conclusion of the Federal Rules of Evidence. */

ARTICLE VII. OPINIONS & EXPERT TESTIMONY
Rule 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, his 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 his
testimony or the determination of a fact in issue.

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.

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 him 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.

/* For example, if it is reasonable for a doctor to rely on
previous notes of another doctor (which is hearsay) they may do
so, provided that the stuff which rely on is used in their field.
*/

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.

/* Another old rule bites the dust. It is permissible for an
expert in a medical malpractice case to state that the doctor was
not negligent. This now goes only to the weight, not the
admissibility of the evidence. */

(b) No expert witness testifying with respect to the mental state
or condition of a defendant in a criminal case may state an
opinion or inference as to whether the defendant did or did not
have the mental state or condition constituting an element of the
crime charged or of a defense thereto. Such ultimate issues are
matters for the trier of fact alone.

Rule 705. Disclosure of Facts or Data Underlying Expert Opinion

The expert may testify in terms of opinion or inference and give
his reasons therefor without prior disclosure of the underlying
facts or data, unless the court requires otherwise. The expert
may in any event be required to disclose the underlying facts or
data on cross-examination.

Rule 706. Court Appointed Experts

(a) Appointment.  The court may on its own motion or on the
motion of any party enter an order to show cause why expert
witnesses should not be appointed, and may request the parties to
submit nominations.  The court may appoint any expert witnesses
agreed upon by the parties, and may appoint expert witnesses of
its own selection. An expert witness shall not be appointed by
the court unless he consents to act.  A witness so appointed
shall be informed of his 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 his findings, if
any; his deposition may be taken by any party; and he may be
called to testify by the court or any party. He shall be subject
to cross-examination by each party, including a party calling him
as a 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 the 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's experts of own selection.  Nothing in this rule
limits the parties in calling expert witnesses of their own
selection.

ARTICLE VIII. HEARSAY
Rule 801. Definitions

The following definitions apply under this article:

(a) Statement.  A "statement" is (1) an oral or written assertion
or
(2) nonverbal conduct of a person, if it is intended by him as an
assertion.

(b) Declarant.  A "declarant" is a person who makes a statement.

(c) Hearsay.  "Hearsay" is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay.  A statement is not hearsay
if-

(1) Prior statement by witness.  The declarant testifies at the
trial or hearing and is subject to cross-examination concerning
the statement, and the statement is (A) inconsistent with his
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 his testimony and is offered
to rebut an express or implied charge against him of recent
fabrication or improper influence or motive, or (C) one of
identification of a person made after perceiving him.

(2) Admission by party-opponent.  The statement is offered
against a party and is (A) his own statement, in either his
individual or a representative capacity or (B) a statement of
which he has manifested his adoption or belief in its truth, or
(C) a statement by a person authorized by him to make a statement
concerning the subject, or (D) a statement by his agent or
servant concerning a matter within the scope of his 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.


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) The 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 him to testify fully and
accurately, shown to have been made or adopted by the witness
when the matter was fresh in his 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, unless the source of information or the
method or circumstances of preparation indicate lack of
trustworthiness. The term "business" as used in this paragraph
includes business, institution, association, profession,
occupation, and calling of every kind, whether or not conducted
for profit.

(7) Absence of entry in records kept in accordance with the
provisions of paragraph (6).  Evidence that a matter is not
included in the memoranda, reports, records, or data
compilations, in any form, kept in accordance with the provisions
of paragraph (6), to prove the nonoccurrence or nonexistence of
the matter, if the matter was of a kind of which a memorandum,
report, record, or data compilation was regularly made and
preserved, unless the sources of information or other
circumstances indicate lack of trustworthiness.

(8) Public records and reports.  Records, reports, statements, or
data compilations, in any form, of public offices or agencies,
setting forth (A) the activities of the office or agency, or (B)
matters observed pursuant to duty imposed by law as to which
matters there was a duty to report, excluding, however, in
criminal cases matters observed by police officers and other law
enforcement personnel, or

(C) in civil actions and proceedings and against the Government
in criminal cases, factual findings resulting from an
investigation made pursuant to authority granted by law, unless
the sources of information or other circumstances indicate lack
of trustworthiness.

(9) Records of vital statistics.  Records or data compilations,
in any form, of births, fetal deaths, deaths, or marriages, if
the report thereof was made to a public office pursuant to
requirements of law.

(10) Absence of public record or entry.  To prove the absence of
a record, report, statement, or data compilation, in any form, or
the nonoccurrence or nonexistence of a matter of which a record,
report, statement, or data compilation, in any form, was
regularly made and preserved by a public office or agency,
evidence in the form of a certification in accordance with rule
902, or testimony, that diligent search failed to disclose the
record, report, statement, or data
compilation, or entry.

(11) Records of religious organizations.  Statements of births,
marriages, divorces, deaths, legitimacy, ancestry, relationship
by blood or marriage, or other similar facts of personal or
family history, contained in a regularly kept record of a
religious organization.

(12) Marriage, baptismal, and similar certificates.  Statements
of fact contained in a certificate that the maker performed a
marriage or other ceremony or administered a sacrament, made by a
clergyman, public official, or other person authorized by the
rules or practices of a religious organization or by law to
perform the act certified, and purporting to have been issued at
the time of the act or within a reasonable time thereafter.

(13) Family records.  Statements of fact concerning personal or
family history contained in family Bibles, genealogies, charts,
engravings on rings, inscriptions on family portraits, engravings
on urns, crypts, or tombstones, or the like.

(14) Records of documents affecting an interest in property. The
record of a document purporting to establish or affect an
interest in property, as proof of the content of the original
recorded document and its execution and delivery by each person
by whom it purports to have been executed, if the record is a
record of a public office and an applicable statute authorizes
the recording of documents of that kind in that office.

(15) Statements in documents affecting an interest in property.
A statement contained in a document purporting to establish or
affect an interest in property if the matter stated was relevant
to the purpose of the document, unless dealings with the property
since the document was made have been inconsistent with the truth
of the statement or the purport of the document.

(16) Statements in ancient documents. Statements in a document in
existence twenty years or more the authenticity of which is
established.

(17) Market reports, commercial publications. Market quotations,
tabulations, lists, directories, or other published compilations,
generally used and relied upon by the public or by persons in
particular occupations.

(18) Learned treatises. To the extent called to the attention of
an expert witness upon cross-examination or relied upon by him 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 his family by blood, adoption, or marriage, or
among his 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 his 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 his associates or in the community.

(22) Judgment of previous conviction. Evidence of a final
judgment, entered after a trial or upon a plea of guilty (but not
upon a plea of nolo contendere), adjudging a person guilty of a
crime punishable by death or imprisonment in excess of one year,
to prove any fact essential to sustain the judgment, but not
including, when offered by the Government in a criminal
prosecution for purposes other than impeachment, judgments
against persons other than the accused. The pendency of an appeal
may be shown but does not affect admissibility.

(23) Judgment as to personal, family, or general history, or
boundaries. Judgments as proof of matters of personal family or
general history, or boundaries, essential to the judgment, if the
same would be provable by evidence of reputation.

(24) Other exceptions. A statement not specifically covered by
any of the foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness, if the court
determines that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point
for which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and (C) the
general purposes of these rules and the interests of justice will
best be served by admission of the statement into evidence.
However, a statement may not be admitted under this exception
unless the proponent of it makes known to the adverse party
sufficiently in advance of the trial or hearing to provide the
adverse party with a fair opportunity to prepare to meet it, his
intention to offer the statement and the particulars of it,
including the name and address of the declarant.


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 his statement;
or

(2) persists in refusing to testify concerning the subject matter
of his statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of his
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 his statement
has been unable to procure his attendance (or in the case of a
hearsay exception under subdivision (b)(2), (3), or (4), his
attendance or testimony) by process or other reasonable means. A
declarant is not unavailable as a witness if his exemption,
refusal, claim of lack of memory, inability, or absence is due to
the procurement or wrongdoing of the proponent of his statement
for the purpose of preventing the witness from attending or
testifying.

(b) Hearsay exceptions. The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another
hearing of the same or a different proceeding, or in a deposition
taken in compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now
offered, or, in a civil action or proceeding, a predecessor in
interest, had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination.

(2) Statement under belief of impending death. In a prosecution
for homicide or in a civil action or proceeding, a statement made
by a declarant while believing that his death was imminent,
concerning the cause or circumstances of what he believed to be
his 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 him to civil or
criminal liability, or to render invalid a claim by him against
another, that a reasonable man in his position would not have
made the statement unless he believed it to be true. A statement
tending to expose the declarant to criminal liability and offered
to exculpate the accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the
statement.

(4) Statement of personal or family history. (A) A statement
concerning the declarant's own birth, adoption, marriage,
divorce, legitimacy, relationship by blood, adoption, or
marriage, ancestry, or other similar fact of personal or family
history, even though declarant had no means of acquiring personal
knowledge of the matter stated; or (B) a statement concerning the
foregoing matters, and death also, of another person, if the
declarant was related to the other by blood, adoption, or
marriage or was so intimately associated with the other's family
as to be likely to have accurate information concerning the
matter declared.

/* Strange that although persons are often lied to by their
families, but this is allowed as trustworthy hearsay. */

(5) Other exceptions. A statement not specifically covered by any
of the foregoing exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court determines that (A)
the statement is offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered
than any other evidence which the proponent can procure through
reasonable efforts; and (C) the general purposes of these rules
and the interests of justice will best be served by admission of
the statement into evidence. However, a statement may not be
admitted under this exception unless the proponent of it makes
known to the adverse party sufficiently in advance of the trial
or hearing to provide the adverse party with a fair opportunity
to prepare to meet it, his intention to offer the statement and
the particulars of it, including the name and address of the
declarant.

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 his hearsay statement, is not subject to any requirement
that he 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 him on the statement as if under cross- examination.

Rule 901.

(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 identifications.  Identification of a voice, whether
heard firsthand or through mechanical or electronic transmission
or recording, by opinion based upon hearing the voice at any time
under circumstances connecting it with the alleged speaker.

(6) Telephone conversations.  Telephone conversations, by
evidence that a call was made to the number assigned at the time
by the telephone company to a particular person or business, if
(A) in the case of a person, circumstances, including
self-identification, show the person answering to be the one
called, or (B) in the case of a business, the call was made to a
place of business and the conversation related to business
reasonably transacted over the telephone.

(7) Public records or reports.  Evidence that a writing
authorized by law to be recorded or filed and in fact recorded or
filed in a public office, or a purported public record, report,
statement or data compilation, in any form, is from the public
office where items of this nature are kept.

(8) Ancient documents or data compilation.  Evidence that a
document or data compilation, in any form, (A) is in such
condition as to create no suspicion concerning its authenticity,
(B) was in a place where it, if authentic, would likely be, and
(C) has been in existence 20 years or more at the time it is
offered.

(9) Process or system.  Evidence describing a process or system
used to produce a result and showing that the process or system
produces an accurate result.

(10) Methods provided by statute or rule.  Any method of
authentication or identification provided by Act of Congress or
by other rules prescribed by the Supreme Court pursuant to
statutory authority.

Rule 902.

Extrinsic evidence of authority 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 his official capacity of an
officer or employee of an 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 his 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 embassy or legation, consul
general, consul, vice consul, or consular agent of the United
States, or a diplomatic or consular official of the foreign
country assigned or accredited to the United States. If
reasonable opportunity has been given to all parties to
investigate the authenticity and accuracy of official documents,
the court may, for good cause shown, order that they be treated
as presumptively authentic without final certification or permit
them to be evidenced by an attested summary with or without final
certification.

(4) Certified copies of public records. A copy of an official
record or report or entry therein, or of a document authorized by
law to be recorded or filed and actually recorded or filed in a
public office, including data compilations in any form, certified
as correct by the custodian or other person authorized to make
the certification, by certificate complying with paragraph (1),
(2), or (3) of this rule or complying with any Act of Congress or
rule prescribed by the Supreme Court pursuant to statutory
authority.

(5) Official Publications. Books, pamphlets, or other
publications purporting to be issued by public authority.

(6) Newspapers and periodicals. Printed materials purporting to
be newspapers or periodicals.

(7) Trade inscriptions and the like. Inscriptions, signs, tags or
labels purporting to have been affixed in the course of business
and indicating ownership, control, or origin.

(8) Acknowledged documents. Documents accompanied by a
certificate of acknowledgment executed in the manner provided by
law by a notary public or other officer authorized by law to take
acknowledgments.

(9) Commercial paper and related documents. Commercial paper,
signatures thereon, and documents relating thereto to the extend
provided by general commercial law.

/* This refers to the fact that the Uniform Commercial Code
provides that the signatures on notes are deemed as genuine
unless they are disputed at the first opportunity to do so. */


(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.

ARTICLE IX. AUTHENTICATION & IDENTIFICATION

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, & PHOTOGRAPHS

Rule 1001.  Definitions

For purposes of this article the following definitions are
applicable:

(1) Writing 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 technique which accurately
reproduces the original.


Rule 1002.  Requirement of Original

To prove the content of a writing, recording, or photograph, the
original writing, recording, or photograph is required, except as
otherwise provided in these rules or by Act of Congress.

Rule 1003.  Admissibility of Duplicates

A duplicate is admissible to the same extent as an original
unless

(1) a genuine question is raised as to the authenticity of the
original or (2) in the circumstances it would be unfair to admit
the duplicate in lieu of the original.

Rule 1004.  Admissibility of Other Evidence of Contents

The original is not required, and other evidence of the contents
of a writing, recording, or photograph is admissible if-

(1) Originals lost or destroyed. All originals are lost to 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,
he was put on notice, by the pleadings or otherwise, that the
contents would be a subject of proof at the hearing, and he does
not produce the original at the hearing; or

(4) Collateral matters. The writing, recording, or photograph is
not closely related to a controlling issue.

Rule 1005.  Public Records

The contents of an official record, or of a document authorized
to be recorded or filed and actually recorded or filed, including
data compilations in any form, if otherwise admissible, may be
proved by copy, certified as correct in accordance with rule 902
or testified to be correct by a witness who has compared it with
the original. If a copy which complies with the foregoing cannot
be obtained by the exercise of reasonable diligence, then other
evidence of the contents may be given.


Rule 1006.  Summaries

The contents of voluminous writings, recordings, or photographs
which cannot conveniently be examined in court may be presented
in the form of a chart, summary, or calculation. The originals,
or duplicates, shall be made available for examination or
copying, or both, by 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 his written admission, without accounting for the
nonproduction of the original.


Rule 1008.  Functions of Court and Jury

When the admissibility of other evidence of contents of writings,
recordings, or photographs under these rules depends upon the
fulfillment of a condition of fact, the question whether the
condition has been fulfilled is ordinarily for the court to
determine in accordance with the provisions of rule 104. However,
when an issue is raised (a) whether the asserted writing ever
existed, or (b) whether another writing, recording, or photograph
produced at the trial is the original, or (c) whether other
evidence of contents correctly reflects the contents, the issue
is for the trier of fact to determine as in the case of other
issues of fact.

(a) Courts and magistrates. These rules apply to the United
States district courts, the United States bankruptcy courts, the
District Court of Guam, the District Court of the Virgin Islands,
the District Court for the District of the Canal Zone, the United
States courts of appeals, the United States Claims Court, and to
United States magistrates, in the actions, cases, and proceedings
and to the extent hereinafter set forth. The terms "judge" and
"court" in these rules include United States magistrates.

(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) Rule 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.