Evidence: Federal Evidence Rules

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Rule 103(A): Rulings on Evidence

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(a) Preserving a Claim of Error: a part may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on

the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it

was apparent from the context; or

(2) if the ruling excludes evidence, a party in

forms the court of its substance by an

offer of proof, unless the substance was

apparent from the context.

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Rule 103(B): Rulings on Evidence

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(b) Not needing to renew an objection or offer of proof: once the court rules definitively on the record - either before or at trial - a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

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Rule 103(C): Rulings on Evidence

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(c) Court's Statement about the ruling; directing an offer of proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.

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Rule 103(D): Rulings on Evidence

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(d) Preventing the Jury from Hearing Inadmissible evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

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Rule 103(E): Rulings on Evidence

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(e) Taking Notice of Plain Error: A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

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Rule 104: Preliminary Questions

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(a) In General: The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is inadmissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

(b) Relevance That Depends on a Fact: When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

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Rule 401: Test for Relevant Evidence

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Evidenceis relevant if:

(a)it has anytendency tomake a factmore or less probable thanit would be without the evidence; and

(b)the fact is ofconsequence indetermining the action.

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Rule 402: General Admissibility ofRelevant Evidence

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Relevantevidence is admissible unless any of the following provides otherwise:

• the United States Constitution;
• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.

Irrelevantevidence is not admissible.

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Rule 403: ExcludingRelevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

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Thecourt may exclude relevant evidence if itsprobative value is substantially outweighed by adanger of one or more of the following:

• unfairprejudice,
• confusing the issues,
• misleading the jury,
• undue delay,
• wastingtime, or
• needlessly presenting cumulative evidence.
  

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Rule 404(a): Character Evidence; Crimes or Other Acts

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(a)Character Evidence.

(1) ProhibitedUses: Evidence of a person’s

character or character trait is not

admissibleto prove that on a particular

occasion the personacted in

accordance with the character portrait.

(2) Exceptionsfor a Defendant or Victim

in a Criminal Case: Thefollowing

exceptions apply in a criminal case:

(A) a defendant may offer evidence of

the defendant’s pertinenttrait,and if

the evidence is admitted, the

prosecutor may offer evidence to

rebut it;

(B) subject to the limitations in Rule

412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendant’ssame trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

(3) Exceptionsfor a Witness.Evidence of a witness’scharacter may be admitted under Rules 607, 608, and 609.

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Rule 404(b): Character Evidence; Crimes or Other Acts

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(b) Crimes, Wrongs, or Other Acts.

(1) ProhibitedUses.Evidenceof a crime, wrong, or other act is not admissible to prove a person’s character in order to show thaton a particular occasion the personacted in accordance with the character.

(2) PermittedUses; Notice in a Criminal Case.This evidence maybe admissible for anotherpurpose, suchas provingmotive, opportunity, intent, preparation, plan,knowledge, identity, absence of mistake, or lack of accident. On request by a defendantin a criminalcase, theprosecutor must:

(A) providereasonablenotice ofthe generalnature ofany such evidence that the prosecutorintends to offer at trial; and

(B) doso before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

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Rule 405. Methods of Proving Character

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(a) By Reputation or Opinion. When evidence of aperson’scharacter or character trait is admissible,it may be proved by testimony about the person’s reputationorby testimony in the form of an opinion. On cross-examinationofthe character witness, the court mayallow an inquiry into relevant specificinstances ofthe person’s conduct.

(b) BySpecific Instances of Conduct. When a person’scharacter or character trait is an essentialelement ofa charge, claim, or defense, thecharacter or trait may also be proved byrelevant specific instances ofthe person’sconduct.

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Rule406. Habit; Routine Practice

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Evidenceof a person’s habit oran organization’s routinepractice may beadmitted to prove that on a particular occasion the person or organizationacted in accordance with the habit or routine practice. The court mayadmit this evidence regardless of whether it is corroborated orwhether there was an eyewitness.

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Rule 412(a). Sex-Offense Cases: The Victim’sSexual Behavior or Predisposition

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(a)ProhibitedUses. Thefollowing evidence is not admissible in a civilor criminal proceeding involvingalleged sexual misconduct:

(1) evidence offered to prove that a victimengaged in other sexual behavior; or

(2) evidence offered to prove a victim's sexualpredisposition.

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Rule 412(b). Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition

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(b) Exceptions.

(1) CriminalCases. The court may admit the followingevidence in a criminal case:

(A) evidence of specific instances of a

victim’ssexual behavior, if offered to

prove that someone other than the

defendant was the source of semen,

injury, orother physical evidence;

(B) evidence of specific instances of a

victim’s sexualbehavior with respect to

the person accused of the sexual

misconduct, if offered by the

defendant toprove consent or if

offered by the prosecutor; and

(C) evidencewhose exclusion would

violate the defendant’s constitutional

rights.

(2) Civil Cases.Ina civil case, the court may admit evidence offered to prove a victim’ssexual behavior or sexual predisposition ifits probative value substantially outweighsthe danger ofharm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’sreputation only if the victim has placed it in controversy.

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Rule 412(c). Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition

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(c) Procedure To DetermineAdmissibility.

(1) Motion. If a party intends to offerevidence under Rule 412(b), the party must:

(A) file a motion that specificallydescribes theevidence and states the purpose forwhich it is to be offered;

(B) doso at least 14 days before trialunless the court, for good cause, sets a different time;

(C) serve themotion on all parties; and

(D) notifythe victim or,when appropriate, the victim’sguardian or representative.

(2) Hearing. Before admitting evidence under this rule, the court must conduct an incamera hearing andgive the victim and parties a right toattend and be heard. Unless the court orders otherwise, the motion, relatedmaterials, and the record of the hearingmust be and remain sealed.

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Rule 412(d). Sex-Offense Cases: The Victim’s Sexual Behavior or Predisposition

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(d) Definitionof “Victim.” Inthis rule, “victim”includes an alleged victim.

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Rule 413(a). Similar Crimes inSexual-Assault Cases

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(a) PermittedUses. Ina criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committedany other sexual assault. Theevidence may be considered on anymatter to which it is relevant.

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Rule 413(b). Similar Crimes in Sexual-Assault Cases

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(b) Disclosureto the Defendant. Ifthe prosecutor intends to offer this evidence,the prosecutor must disclose it to the defendant, includingwitnesses’ statements or a summary of theexpected testimony. The prosecutor mustdo so at least 15 days before trial or at a later time that the court allows for good cause.

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Rule 413(c). Similar Crimes inSexual-Assault Cases

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(c) Effect on Other Rules. This rule does notlimit the admission or consideration of evidence under any other rule.

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Rule 413(d). Similar Crimes in Sexual-Assault Cases

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Definitionof “Sexual Assault.” In this rule and Rule 415, “sexual assault” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513)involving:

(1) any conduct prohibited by 18 U.S.C.

chapter109A;

(2) contact, without consent, between any

part of the defendant’s body — or an

object — and another person’sgenitals or

anus;

(3) contact, without consent, between the

defendant’s genitals or anus and any part

ofanother person’s body;

(4) deriving sexual pleasureor gratification

from inflicting death, bodily injury, or

physical pain on another person; or

(5) anattempt or conspiracy to engage in

conduct described in subparagraphs

(1)-(4).

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Rule 414(a). Similar Crimes inChild-Molestation Cases

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(a) Permitted Uses. In a criminal case in which adefendant is accused of child molestation, the court may admit evidence that the defendant committedany other child molestation.The evidence may be considered on anymatter to which it is relevant.

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Rule 414(b). Similar Crimes in Child-Molestation Cases

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(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence,the prosecutor must disclose it to the defendant, includingwitnesses’ statements or a summary of theexpected testimony. The prosecutor mustdo so at least 15 days before trial or at a later time that the court allows for good cause.

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Rule 414(c). Similar Crimes in Child-Molestation Cases

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(c) Effect on Other Rules. This rule does notlimit the admission or consideration of evidence under any other rule.

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Rule 414(d). Similar Crimes in Child-Molestation Cases

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(d) Definition of “Child” and “Child Molestation.” In this rule and Rule 415:

(1) “child”means a person below the age of

14; and

(2) “child molestation” means a crime

under federal law or understate law (as

“state”is defined in 18 U.S.C. § 513)

involving:

(A) any conduct prohibited by 18 U.S.C. chapter109A and committed with a child;

(B) any conduct prohibited by 18 U.S.C. chapter110;

(C) contact between any part of the defendant’s body — or an object — and a child’s genitals or anus;

(D) contactbetween the defendant’s genitals or anus and any part ofa child’s body;

(E) deriving sexual pleasureor gratification from inflicting death, bodily injury, or physical pain on a child; or

(F) anattempt or conspiracy to engage in conduct described in subparagraphs (A)– (E)

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Rule 415(A). Similar Acts in Civil CasesInvolving Sexual Assault or Child Molestation

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(a) Permitted Uses. In a civil case involving aclaim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidencethat the party committed any othersexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414.

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Rule 415(b). Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation

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(b) Disclosure to the Opponent. If a party intendsto offer this evidence, the party must discloseit to the party against whom it will be offered, including witnesses’ statements or a summary of the expected testimony. The party must do so atleast 15 days before trial or at a latertime that the court allows for good cause.

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Rule 415(c). Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation

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(c) Effect on Other Rules. This rule does notlimit the admission or consideration of evidenceunder any other rule.

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Rule 407. Subsequent Remedial Measures

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Whenmeasures aretaken that would have made an earlier injury or harm lesslikely to occur,evidence of the subsequentmeasures is not admissible to prove:

• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.

Butthe court may admit this evidence for another purpose, such as impeachment or —if disputed —proving ownership, control, orthe feasibility ofprecautionary measures.

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Rule 408. Compromise Offers andNegotiations

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(a) Prohibited uses. Evidence of thefollowing is not admissible — onbehalf of any party — either to proveor disprove the validity or amount of a disputedclaim orto impeach by a prior inconsistent statementor a contradiction:

(1) furnishing,promising, or offering — or

accepting, promising to accept, or offering

toaccept — a valuable consideration in

compromising or attempting to

compromise the claim; and

(2) conductor a statement made during

compromise negotiations aboutthe claim

— except when offered in a criminal case

and when the negotiationsrelated to a

claim by a public office in the exercise of its

regulatory,investigative, or enforcement

authority.

(b) Exceptions.The court may admit this evidence for another purpose, such as proving a witness’sbias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation orprosecution.

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Rule 409. Offers to Pay Medical andSimilar Expenses

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Evidenceof furnishing,promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is notadmissible to prove liability for the injury.

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Rule 410(a). Pleas, Plea Discussions,and Related Statements

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Prohibited Uses. Ina civil or criminal case,evidence of the following is not admissible against the defendant whomade the plea or participated in the plea discussions:

(1) a guilty plea thatwas later withdrawn;

(2) a nolo contendere plea;

(3) a statement madeduring a

proceeding on either of those pleas

under Federal Rule of Criminal Procedure

11 or a comparable state procedure;or

(4) a statement made during plea

discussions withan attorney for the

prosecuting authority ifthe discussions

did not result in aguilty plea or they

resulted in a later-withdrawn guilty plea.

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Rule 410(b). Pleas, Plea Discussions,and Related Statements

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Exceptions. Thecourt may admit a statement described in Rule 410(a)(3) or (4):

(1) inany proceeding in which another statement madeduring the same plea or plea discussions has been introduced, if in fairness the statements ought to be consideredtogether; or

(2) in a criminal proceeding for perjury or falsestatement, if the defendant made the statementunder oath, on the record, and withcounsel present.

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Rule 411. Liability Insurance

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Evidencethat a person was or was not insured againstliability is not admissible to prove whether theperson acted negligently or otherwise wrongfully. But thecourt may admit thisevidence for another purpose,such as proving a witness’s biasor prejudice orproving agency, ownership, or control.

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Rule 801. Definitions That Apply to ThisArticle; Exclusions from Hearsay

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(a)Statement. “Statement”means a person’s oralassertion,written assertion, or nonverbalconduct,if the person intended itas an assertion.

(b) Declarant. “Declarant”means the person who made the statement.

(c) Hearsay. “Hearsay”means a statementthat:

(1) the declarantdoesnot make while

testifying at the currenttrial or hearing;

(2) a party offers in evidenceto prove the

truth of the matter asserted inthe

statement.

(d)Statements That Are Not Hearsay. A statement that meets the followingconditions is not hearsay:

(1)A Declarant-Witness’sPrior Statement.The declarant testifies and is subject to cross-examination about a priorstatement, and the statement: (A-C)

(2) AnOpposing Party’sStatement.The statement is offered against an opposing party and: (A-E)

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Rule 802. The Rule Against Hearsay

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Hearsayis not admissible unless anyof the following provides otherwise:

• a federal statute;
• these rules; or
• other rules prescribed by the Supreme Court.
  

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Rule803. Exceptions to the Rule Against Hearsay — Regardless of Whether theDeclarant Is Available as a Witness

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1. Present Sense Impression
   
2. Excited Utterance
3. Then-Existing Mental, Emotional, or Physical Condition
4. Statement Made for Medical Diagnosis or Treatment
5. Recorded Recollection
6. Records of a Regularity Conducted Activity
7. Absence of Record or a Regularly Conducted Activity
8. Public Records
9. Public Records of Vital Statistics
10. Absence of Public Record
11. Records of Religious Organizations Concerning Personal or Family History
12. Certificates of Marriage, Baptism, & Similar Ceremonies
13. Family Records
14. Records of Documents that Affect an Interest in Property
15. Statements in Documents That Affect an Interest in Property
16. Statements in Ancient Documents
17. Markt Reports & Similar Commercial Publications
18. Statements in Learned Treatises, Periodicals, or pamphlets
19. reputation concerning person/family history
20. Reputation Concerning Boundaries or Gen. History
21. Reputation Concerning Character
22. Judgment of a Previous Conviction
23. Judgment Involving Personal, family, or Gen. history or a Boundary
24. Other exceptions (Transferred to rule 807)

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Rule804. Exceptions to the Rule Against Hearsay — When the Declarant Is Unavailableas a Witness

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(a)Criteria for Being Unavailable. A declarant is considered to be unavailable asa witness if the declarant:

(b) TheExceptions.