Evidence Law Reference
Federal Rules of Evidence
Plain English explanations of 41 key Federal Rules of Evidence across 7 articles. Each rule includes simplified text, exam tips, key points, landmark cases, and cross-references to related rules.
Article IV — Relevance and Its Limits
The foundational rules governing what evidence is relevant, when relevant evidence can be excluded, and special policy-based exclusion rules for character evidence, subsequent remedial measures, settlement offers, and more.
Rule 401
Test for Relevant Evidence
Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action. Relevance requires two components: probative value (the evidence must make some fact more or less likely) and materiality (the fact must matter to the case).
Rule 402
General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution, a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible.
Rule 403
Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Rule 404
Character Evidence; Other Crimes, Wrongs, or Acts
Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with that character or trait. However, a criminal defendant may offer pertinent character evidence, and the prosecution may rebut it. The prosecution may also offer evidence of the victim's character in certain circumstances. Evidence of any other crime, wrong, or act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with that character, but it may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
Rule 405
Methods of Proving Character
When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow inquiry into relevant specific instances of the person's conduct. When a person's character or character trait is an essential element of a charge, claim, or defense, the character trait may also be proved by relevant specific instances of the person's conduct.
Rule 406
Habit; Routine Practice
Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated and regardless of whether there was an eyewitness.
Rule 407
Subsequent Remedial Measures
When measures are taken that would have made an earlier 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 or its design, or a need for a warning or instruction. The court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.
Rule 408
Compromise Offers and Negotiations
Evidence of furnishing, promising, or offering (or accepting, promising to accept, or offering to accept) a valuable consideration in compromising or attempting to compromise a claim that was disputed as to either validity or amount is not admissible to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or contradiction. The rule also covers conduct or statements made during compromise negotiations. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Rule 409
Offers to Pay Medical and Similar Expenses
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
Rule 410
Pleas, Plea Discussions, and Related Statements
In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: a guilty plea that was later withdrawn; a nolo contendere (no contest) plea; any statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11; or any statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
Rule 411
Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice or proving agency, ownership, or control.
Article V — Privileges
Rules governing testimonial privileges such as attorney-client privilege, spousal privilege, and other recognized privileges that protect certain communications from disclosure.
Article VI — Witnesses
Rules governing who may testify, how witnesses are examined and impeached, and the sequestration of witnesses during trial.
Rule 601
Competency to Testify in General
Every person is competent to be a witness unless the Federal Rules of Evidence provide otherwise. In a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision.
Rule 602
Need for Personal Knowledge
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule 703.
Rule 607
Who May Impeach a Witness
Any party, including the party that called the witness, may attack the witness's credibility.
Rule 608
A Witness's Character for Truthfulness or Untruthfulness
A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. Evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. The court may, on cross-examination, allow inquiry into specific instances of a witness's conduct if they are probative of the character for truthfulness or untruthfulness of the witness or another witness whose character the witness being cross-examined has testified about.
Rule 609
Impeachment by Evidence of a Criminal Conviction
For a witness other than the accused in a criminal case, evidence of a conviction for a crime punishable by death or imprisonment for more than one year must be admitted, subject to Rule 403. For the accused in a criminal case, such evidence must be admitted if the probative value outweighs the prejudicial effect to the accused. For any witness, evidence of a conviction for a crime that required proving (or the witness admitting) a dishonest act or false statement must be admitted regardless of punishment. Evidence of a conviction is not admissible if more than 10 years have passed since the conviction or release from confinement (whichever is later), unless the probative value substantially outweighs the prejudicial effect and the proponent gives reasonable written notice. A conviction that has been the subject of a pardon, annulment, or equivalent procedure is generally not admissible. Juvenile adjudications are generally not admissible except in limited circumstances.
Rule 611
Mode and Order of Examining Witnesses and Presenting Evidence
The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to make those procedures effective for determining the truth, avoid wasting time, and protect witnesses from harassment or undue embarrassment. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility. The court may allow inquiry into additional matters as if on direct examination. Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions on cross-examination and when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
Rule 613
Witness's Prior Statement
When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney. Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.
Rule 615
Excluding Witnesses
At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. The court may also do so on its own. But this rule does not authorize excluding: a party who is a natural person; an officer or employee of a party that is not a natural person, after being designated as the party's representative by its attorney; a person whose presence a party shows to be essential to presenting the party's claim or defense; or a person authorized by statute to be present.
Article VII — Opinions and Expert Testimony
Rules governing lay opinion testimony, expert witness qualifications, the bases of expert opinions, and the admissibility of expert testimony under the Daubert standard.
Rule 701
Opinion Testimony by Lay Witnesses
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is rationally based on the witness's perception, helpful to clearly understanding the witness's testimony or to determining a fact in issue, and not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Rule 702
Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that: the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; the testimony is based on sufficient facts or data; the testimony is the product of reliable principles and methods; and the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.
Rule 703
Bases of an Expert's Opinion Testimony
An expert may base an opinion on facts or data in the case that the expert has been made aware of or has personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
Rule 704
Opinion on an Ultimate Issue
An opinion is not objectionable just because it embraces an ultimate issue to be decided by the trier of fact. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.
Rule 705
Disclosing the Facts or Data Underlying an Expert's Opinion
Unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.
Rule 706
Court-Appointed Expert Witnesses
On a party's motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. The court must inform the expert of the expert's duties and may do so in writing with a copy to the parties. The expert must advise the parties of any findings, may be deposed, must testify if called, and may be cross-examined by any party. The expert is entitled to reasonable compensation, and in a civil case the court may apportion costs among the parties. The court must, upon request, inform the jury that the court appointed the expert. A party may call its own expert witnesses at its own expense.
Article VIII — Hearsay
The hearsay rule and its many exceptions — the most heavily tested area of evidence law. Covers the definition of hearsay, exemptions for prior statements and party-opponent statements, and exceptions for unavailable and available declarants.
Rule 801
Definitions That Apply to This Article; Exclusions from Hearsay
A 'statement' is what a person intended as an assertion (oral, written, or nonverbal conduct intended as an assertion). A 'declarant' is the person who made the statement. 'Hearsay' is a statement that the declarant did not make while testifying at the current trial or hearing and that a party offers in evidence to prove the truth of the matter asserted in the statement. Certain prior statements by a witness and admissions by a party-opponent are defined as not hearsay. Prior statements include: prior inconsistent statements given under penalty of perjury at a proceeding, prior consistent statements offered to rebut a charge of fabrication or to rehabilitate credibility, and statements of identification of a person. Opposing party statements include individual statements, adopted statements, authorized statements, agent/employee statements made during the relationship on a related matter, and co-conspirator statements made during and in furtherance of the conspiracy.
Rule 802
The Rule Against Hearsay
Hearsay is not admissible unless any of the following provides otherwise: a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court.
Rule 803
Exceptions to the Rule Against Hearsay — Regardless of Whether the Declarant Is Available as a Witness
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (1) present sense impression — a statement describing or explaining an event made while or immediately after the declarant perceived it; (2) excited utterance — a statement relating to a startling event made while the declarant was under the stress of excitement that it caused; (3) then-existing mental, emotional, or physical condition — a statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not a statement of memory or belief to prove the fact remembered or believed unless it relates to the declarant's will; (4) statements made for medical diagnosis or treatment describing medical history, past or present symptoms, their inception, or their general cause; (5) recorded recollection; (6) records of a regularly conducted activity (business records); (7) absence of a record of a regularly conducted activity; (8) public records; (18) learned treatises; (21) reputation concerning character; and other exceptions. These exceptions apply because the circumstances provide sufficient guarantees of trustworthiness that cross-examination adds little value.
Rule 804
Exceptions to the Rule Against Hearsay — When the Declarant Is Unavailable as a Witness
A declarant is considered unavailable if the declarant is exempted from testifying by a ruling on privilege; persists in refusing to testify despite a court order; testifies to not remembering the subject matter; cannot be present because of death or a then-existing physical or mental illness or infirmity; or is absent and the statement's proponent has not been able to procure the declarant's attendance by process or other reasonable means. A statement is not excluded by the hearsay rule if the declarant is unavailable and the statement falls within one of these exceptions: (1) former testimony given at a prior proceeding where the party against whom it is offered had an opportunity and similar motive to examine the witness; (2) a statement made under the belief of imminent death concerning the cause or circumstances of the believed impending death; (3) a statement against the declarant's interest (pecuniary, proprietary, or penal interest) so contrary to the declarant's interest that a reasonable person would not have made it unless they believed it was true; (4) a statement about personal or family history; or (5) a statement offered against a party that wrongfully caused the declarant's unavailability (forfeiture by wrongdoing).
Rule 805
Hearsay Within Hearsay
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
Rule 807
Residual Exception
Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804: the statement is supported by sufficient guarantees of trustworthiness — after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and it is more probative on the point for which it is offered than any other evidence that the proponent can reasonably obtain. The statement is admissible only if the proponent gives an adverse party reasonable notice of the intent to offer the statement — including its substance and the declarant's name — so that the party has a fair opportunity to meet it.
Article IX — Authentication and Identification
Rules requiring that evidence be authenticated or identified before it can be admitted, including methods of authentication and categories of self-authenticating evidence.
Rule 901
Authenticating or Identifying Evidence
To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Examples of evidence that satisfies the requirement include: testimony of a witness with knowledge; nonexpert opinion on handwriting; comparison by an expert witness or the trier of fact; distinctive characteristics and the like; opinion about a voice; evidence about a telephone conversation; evidence about public records; evidence about ancient documents or data compilations; evidence about a process or system; and methods provided by a statute or rule.
Rule 902
Evidence That Is Self-Authenticating
The following items of evidence are self-authenticating — they require no extrinsic evidence of authenticity in order to be admitted: domestic public documents that are sealed and signed, or certified; foreign public documents; certified copies of public records; official publications; newspapers and periodicals; trade inscriptions and the like; acknowledged documents; commercial paper and related documents; presumptions under a federal statute; certified domestic records of a regularly conducted activity; and certified foreign records of a regularly conducted activity. Items 11 and 12 (certified domestic and foreign business records) satisfy the foundation requirement of the business records exception under Rule 803(6).
Rule 903
Subscribing Witness's Testimony
A subscribing witness's testimony is necessary to authenticate a writing only if required by the law governing its validity.
Article X — Contents of Writings, Recordings, and Photographs
The Best Evidence Rule and related provisions requiring production of originals (or acceptable substitutes) when proving the content of writings, recordings, or photographs.
Rule 1001
Definitions That Apply to This Article
A 'writing' consists of letters, words, numbers, or their equivalent set down in any form. A 'recording' consists of letters, words, numbers, or their equivalent recorded in any manner. A 'photograph' means a photographic image or its equivalent stored in any form. An 'original' of a writing or recording means the writing or recording itself, or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, 'original' means any printout or other output readable by sight if it accurately reflects the information. A 'duplicate' is a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.
Rule 1002
Requirement of the Original
An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
Rule 1003
Admissibility of Duplicates
A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.
Rule 1004
Admissibility of Other Evidence of Content
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: all the originals are lost or destroyed, and not by the proponent acting in bad faith; an original cannot be obtained by any available judicial process; the party against whom the original would be offered had control of the original, was put on notice that the original would be a subject of proof at the trial or hearing, and fails to produce it; or the writing, recording, or photograph is not closely related to a controlling issue.
Rule 1006
Summaries to Prove Content
The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. The court may order the proponent to produce them in court.
Rule 1008
Functions of the Court and Jury
Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines — in accordance with Rule 104(b) — any issue about whether: an asserted writing, recording, or photograph ever existed; another one produced at the trial or hearing is the original; or other evidence of content accurately reflects the content.
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