First adopted in 1975, the Federal Rules of Evidence codify the evidence law that applies in United States federal courts. In addition, many states in the United States have either adopted the Federal Rules of Evidence, with or without local variations, or have revised their own evidence rules or codes to at least partially follow the federal rules.
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 composed of U.S. lawyers and U.S. legal scholars.
The Federal Rules of Evidence began as rules proposed pursuant to a statutory grant of authority, the Rules Enabling Act, but were eventually enacted as statutory law.
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 President Ford signed An 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. Much of the debate on the Rules stemmed from concerns that came to lawmakers' attention due to the Watergate scandal, particularly questions of privilege.Christopher B. Mueller, Laird C. Kirkpatrick. Evidence (4th ed., 2009). Aspen Treatise Series. . 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". Rule 501 meant that the entire purpose of the FRE (to provide clarity and supersede prior case law) was defeated in the specific context of the law of privileges. Thus, to this day, attorneys practicing in U.S. federal courts must carefully research current case law to determine the contours of available privileges in the particular circuit and district in which their case is being heard. In contrast, the California Evidence Code, from which the original proposal had been drawn, had expressly codified all evidentiary privileges and then displaced the common law, so that any further privileges in the courts of that state would have to come from the California State Legislature. 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 used by courts 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 ideasrelevance, 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 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
There are 68 individually numbered rules, divided among 11 articles:
General Provisions Rule 101. Scope; Definitions Rule 102. Purpose Rule 103. Rulings on Evidence Rule 104. Preliminary Questions Rule 105. Limiting Evidence that is Not Admissible Against other Parties or for Other Purposes Rule 106. Remainder of or Related Writings or Recorded Statements Judicial Notice Rule 201. Judicial Notice of Adjudicative Facts Presumptions in Civil Actions and Proceedings Rule 301. Presumptions in Civil Cases Generally Relevancy and Its Limits Rule 401. Test for Relevant Evidence Rule 402. General Admissibility of Relevant Evidence Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons Rule 404. Character Evidence; Other Crimes, Wrongs or Acts Rule 405. Methods of Proving Character Rule 406. Habit; Routine Practice Rule 407. Subsequent Remedial Measures Rule 408. Compromise Offers and Negotiations Rule 409. Offers to Pay Medical and Similar Expenses Rule 410. Pleas, Plea Discussions, and Related Statements Rule 411. Liability Insurance Rule 412. Sex–Offense Cases: The Victim's Sexual Behavior or Predisposition. Rule 413. Similar Crimes in Sexual–Assault Cases Rule 414. Similar Crimes in Child–Molestation Cases Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation Privileges Rule 501. Privilege in General Rule 502. Attorney–Client Privilege and Work Product; Limitations on Waiver Witnesses Rule 601. Competency to Testify in General Rule 602. Need for Personal Knowledge Rule 603. Oath or Affirmation to Testify Truthfully Rule 604. Interpreter Rule 605. Judge's Competency as a Witness Rule 606. Juror's Competency as a Witness. Rule 607. Who May Impeach a Witness Rule 608. A Witness's Character for Truthfulness or Untruthfulness Rule 609. Impeachment by Evidence of a Criminal Conviction Rule 610. Religious Beliefs or Opinions Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence Rule 612. Writing Used to Refresh a Witness's Memory Rule 613. Witness's Prior Statement Rule 614. Court's Calling or Examining a Witness Rule 615. Excluding Witnesses Opinions and Expert Testimony Rule 701. Opinion Testimony by Lay Witnesses Rule 702. Testimony by Expert Witnesses Rule 703. Bases of an Expert's Opinion Testimony Rule 704. Opinion on an Ultimate Issue Rule 705. Disclosing the Facts or Data Underlying an Expert's Opinion Rule 706. Court–Appointed Expert Witnesses Hearsay Rule 801. Definitions that Apply to this Article; Exclusions from Hearsay Rule 802. The Rule Against Hearsay Rule 803. Exceptions to the Rule Against Hearsay–Regardless of Whether the Declarant is Available as a Witness Rule 804. Exceptions to the Rule Against Hearsay–when the Declarant is Unavailable as a Witness Rule 805. Hearsay Within Hearsay Rule 806. Attacking and Supporting the Declarant's Credibility Rule 807. Residual Exceptions Authentication and Identification Rule 901. Authenticating or Identifying Evidence Rule 902. Evidence that is Self–Authenticating Rule 903. Subscribing Witness's Testimony Contents of Writings, Recordings, and Photographs Rule 1001. Definitions that Apply to this Article. Rule 1002. Requirement of the Original Rule 1003. Admissibility of Duplicates Rule 1004. Admissibility of Other Evidence of Content Rule 1005. Copies of Public Records to Prove Content Rule 1006. Summaries to Prove Content Rule 1007. Testimony or Statement of a Party to Prove Content Rule 1008. Functions of the Court and Jury Miscellaneous Rules Rule 1101. Applicability of the Rules Rule 1102. Amendments Rule 1103. Title
The Rules embody some very common concepts, and lawyers frequently refer to those concepts by the rule number. The most important conceptthe balancing of relevance against other competing interestsis embodied in Rule 403.
One of the most common competing interests is the danger of prejudice. An example of otherwise relevant testimony being barred for the danger of unfair prejudice is as follows: A person is on trial for committing a crime. The defendant's alibi is that he was at a meeting of the Knights of the Ku Klux Klan during the time the crime was committed. The defendant has numerous witnesses who can place him at this meeting. The relevant part of this testimony is that the defendant was at a place other than the scene of the crime at the time the crime was committed. On cross examination it is generally relevant to delve into specifics about any alleged alibi such as who was there, what type of meeting it was etc. to ensure the defendant is being truthful. However the relevance of what type of meeting the defendant was attending to weighing the credibility of the story in this example is substantially outweighed by a danger of unfair prejudice as the majority of Americans would view the defendant's participation in the Knights of the Ku Klux Klan to be immoral and is therefore inadmissible.
While the rules proscribe certain testimony from being admissible for one purpose, but it may be admissible for another. An example of this is Rule 404, specifically 404(b) as it pertains to specific instances of a person's conduct. While 404 generally prohibits use of prior acts and crimes to show that a defendant acted in accordance with those prior acts or crimes, 404(b) provides:
Essentially testimony about an act a person has committed in the past is not admissible for the purposes of showing it is more likely that they committed the same act, however it could be admissible for another purpose, such as knowledge or lack of mistake. For example, in a DUI case, the prosecutor may not admit evidence of a prior instance of driving impaired to show that the defendant acted in conformity and drove impaired on the day he is charged with doing so. However such evidence may be admissible if the defense has argued the defendant had no knowledge driving impaired was a crime. Evidence of his prior arrest, conviction, or other circumstances surrounding his prior instance of impaired driving then becomes admissible to rebut the claim of "mistake." The testimony is now being offered not for conformity but to demonstrate knowledge or lack of mistake.