Federal Rules of Evidence

The Federal Rules of Evidence (FRE) govern the admission of facts by which parties in the federal courts of the United States may prove their cases. They were the product of protracted academic, legislative, and judicial examination before they were formally promulgated in 1975. For that reason, they serve as a model for the rules of evidence used in state court systems, as well as a teaching tool in American law schools. Although they were formally adopted by the U.S. Congress, states are free to adopt different rules of evidence. Because they govern the initial presentation of evidence in a trial, the Rules are primarily aimed at federal trial courts rather than appellate courts. Appellate courts do, however, monitor the application of the rules to ensure consistent application and coherent development of the federal common law of evidence.

History

The law of evidence governs the proof of facts and the inferences flowing from such facts during the trial of civil and criminal lawsuits. Before the twentieth century, evidence law was largely the product of decisional law. During the twentieth century, projects such as the California Evidence Code and the Uniform Rules of Evidence encouraged the codification of those common-law evidence rules. In 1965, Chief Justice Earl Warren appointed an advisory committee of fifteen to draft the new rules. The committee was chaired by lawyers and legal scholars from across the country.

The committee members included:

Member	Occupation	Location
Chief Justice Earl Warren	U.S. Supreme Court
Albert E. Jenner	Lawyer	Chicago, IL
David Berger	Lawyer	Philadelphia, PA
Hicks Epton	Lawyer	Wewoka, OK
Egbert Haywood	Lawyer	Durham, NC
Frank Raichle	Lawyer	Buffalo, NY
Herman Selvin	Lawyer	Los Angeles, CA
Craig Spangenbert	Lawyer	Cleveland, OH
Edward Bennett Williams	Lawyer	Washington, D.C.
Thomas F. Green, Jr.	Professor	University of Georgia
Charles W. Joiner	Professor	University of Michigan
Jack Weinstein	Professor	Columbia University
Edward W. Cleary	Professor	University of Illinois
Judge Simon E. Sobeloff	U.S. Court of Appeals	Maryland
Judge Joe E. Estes	U.S. District Court	Texas
Judge Robert Van Pelt	U.S. District Court	Nebraska

The Federal Rules of Evidence began as rules proposed pursuant to a statutory grant of authority, the Rules Enabling Act, but were eventually passed as statutory laws.

The United States Supreme Court circulated drafts of the FRE in 1969, 1971 and 1972, but Congress then exercised its power under the Rules Enabling Act to suspend implementation of the FRE until it could study them further. After a long delay blamed on the Watergate scandal, the FRE became federal law on January 2, 1975, when the President signed the Act to Establish Rules of Evidence for Certain Courts and Proceedings, , .

The law was enacted only after Congress made a series of modifications to the proposed rules. Some of the most prominent congressional amendments when Congress adopted the rules included:

• Prior Inconsistent Statement - Rule 801(d)(1)(A): Congress amended the proposed rule so that the "rule now requires that the prior inconsistent statement be given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. The rule as adopted covers statements before a grand jury.
• Privileges - Rule 501: Although the original proposal included thirteen rules providing for various privileges, Congress struck all of them. To guide privileges in the federal courts, Congress adopted Rule 501. The rule specified that except as otherwise provided by Act of Congress or by other federal rules, privileges in the federal courts would 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.
• Impeachment by Conviction - Rule 609(a): The rule specified when a party could use evidence of a prior conviction to impeach a witness. Congress reformed most of Rule 609(a), to specify when a court could exercise discretion to admit evidence of a conviction which was a felony, but that the court must admit the prior conviction if the crime was one involving "dishonesty or false statement.

The Advisory Committee Notes still function as an important source of material courts use to interpret the Rules.

Even though the Federal Rules of Evidence are statutory, the Supreme Court is empowered to amend the Rules, subject to congressional disapproval. However, amendments creating, abolishing, or modifying privileges require affirmative approval by Congress under .

Purpose

In general, the purpose of rules of evidence is to regulate the evidence that the jury may use to reach a verdict. Historically, the rules of evidence reflected a marked distrust of jurors. The Federal Rules of Evidence strive to eliminate this distrust, and encourage admitting evidence in close cases. Even so, there are some rules that perpetuate the historical mistrust of jurors, expressly limiting the kind of evidence they may receive or the purpose for which they may consider it.

At the same time, the Rules center on a few basic ideas relevance, unfair surprise, efficiency, reliability, and overall fairness of the adversary process. The Rules grant trial judges broad discretion to admit evidence in the face of competing arguments from the parties. This ensures that the jury has a broad spectrum of evidence before it, but not so much evidence that is repetitive, inflammatory, or unnecessarily confusing. The Rules define relevance broadly and relax the common-law prohibitions on witnesses' competence to testify. Hearsay standards are similarly relaxed, as are the standards for authenticating written documents. At the same time, the judge retains power to exclude evidence that has too great a danger for unfair prejudice to a party due to its inflammatory, repetitive, or confusing nature or its propensity to waste the court's time.

Structure of the Rules

There are 67 individually numbered rules, divided among 11 articles:

1. General Provisions
2. Judicial Notice
3. Presumptions in Civil Actions and Proceedings
4. Relevancy and Its Limits
5. Privileges
6. Witnesses
7. Opinions and Expert Testimony
8. Hearsay
9. Authentication and Identification
10. Contents of Writings, Recordings, and Photographs
11. Miscellaneous Rules

The Rules embody some very common concepts, and lawyers frequently refer to those concepts by the rule number. The most important concept the balancing of relevance against other competing interests is embodied in Rule 403.

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.

The basic rule regarding inferences the jury may draw from particular testimony is Rule 404.

1. Character evidence generally.
   Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
   1. Character of accused - In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution.
   2. Character of alleged victim - In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.
   3. Character of witness - Evidence of the character of a witness, as provided in rules 607, 608, and 609.
2. Other crimes, wrongs, or acts.
   Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Other common-law concepts with previously amorphous limits have been more clearly delineated. This is especially true regarding hearsay evidence. Among scholars and in historical judicial decisions, four related definitions of "hearsay" emerged, and the various exceptions and exemptions flowed from the particular definition preferred by the scholar or court. The Federal Rules of Evidence settled on one of these four definitions and then fixed the various exceptions and exemptions in relation to the preferred definition of hearsay.

On the other hand, the law of privileges remains a creature of federal common law under the Rules, rather than the subject of judicial interpretation of the text of the rule. Just as the Uniform Rules of Evidence had, the advisory committee draft of the rules that the Supreme Court formally transmitted to Congress codified nine evidentiary privileges required reports, attorney-client, psychotherapist-patient, husband-wife, communications to clergymen, political vote, trade secrets, official secrets, and identity of informer. When debate over the privileges included in the proposed Rules threatened to delay adoption of the Rules in their entirety, Congress replaced the proposed codified privileges with what became Rule 501.

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.

The scope of the privileges under the Rules thus is the subject of federal common law, except in those situations where state law supplies the rule to be applied. Accordingly, the Supreme Court is ultimately responsible for determining which privileges exist. In the years since the adoption of the Rules, the Court has both expressly adopted a privilege, in Jaffee v. Redmond, , and expressly declined to adopt a privilege, in University of Pennsylvania v. EEOC, .

References

• Complete text of the Federal Rules of Evidence, including links to the Advisory Committee notes
• Federal Rules of Evidence without Advisory Committee notes (PDF 2007)
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See also

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