FEDERAL RULES
OF
EVIDENCE
DECEMBER 1, 2003

Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

!

No. 4

108TH CONGRESS 1st Session	"

COMMITTEE PRINT

FEDERAL RULES
OF
EVIDENCE
DECEMBER 1, 2003

Printed for the use
of
THE COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
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Mail: Stop SSOP, Washington, DC 20402–0001

COMMITTEE ON THE JUDICIARY
ONE HUNDRED EIGHTH CONGRESS
F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman

HENRY J. HYDE, Illinois HOWARD COBLE, North Carolina LAMAR S. SMITH, Texas ELTON GALLEGLY, California BOB GOODLATTE, Virginia STEVE CHABOT, Ohio
WILLIAM L. JENKINS, Tennessee CHRIS CANNON, Utah SPENCER BACHUS, Alabama JOHN N. HOSTETTLER, Indiana MARK GREEN, Wisconsin RIC KELLER, Florida MELISSA A. HART, Pennsylvania JEFF FLAKE, Arizona MIKE PENCE, Indiana J. RANDY FORBES, Virginia STEVE KING, Iowa JOHN R. CARTER, Texas TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee

JOHN CONYERS, JR., Michigan HOWARD L. BERMAN, California RICK BOUCHER, Virginia
JERROLD NADLER, New York ROBERT C. SCOTT, Virginia MELVIN L. WATT, North Carolina ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas MAXINE WATERS, California MARTIN T. MEEHAN, Massachusetts WILLIAM D. DELAHUNT, Massachusetts ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin ANTHONY D. WEINER, New York ADAM B. SCHIFF, California LINDA T. SA´ NCHEZ, California

PHIL KIKO, Chief of Staff — General Counsel
STEVE PINKOS, Staff Director — Deputy General Counsel
PERRY APELBAUM, Minority Chief Counsel
TED KALO, Minority General Counsel

DECEMBER 1, 2003.

This document contains the Federal Rules of Evidence, as amended to December 1, 2003. The rules were enacted by Public Law 93–595 (approved January 2, 1975) and have been amended by Acts of Congress, and further amended by the United States Supreme Court. This document has been prepared by the Commit-tee in response to the need for an official up-to-date document containing the latest amendments to the rules.
For the convenience of the user, where a rule has been amended a reference to the date the amendment was promulgated and the date the amendment became effective follows the text of the rule.
The Committee on Rules of Practice and Procedure and the Advisory Committee on the Federal Rules of Evidence, Judicial Conference of the United States, prepared notes explaining the purpose and intent of the amendments to the rules. The Committee Notes may be found in the Appendix to Title 28, United States Code, following the particular rule to which they relate.

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(V)

§ 2072. R
(a)	The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrates thereof) and courts of appeals.
Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.
(c)	Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title.
(Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4648, eff. Dec. 1, 1988; amended Pub. L. 101–650, title III, § 315, Dec. 1, 1990, 104 Stat. 5115.)
§ 2073. R
(a)(1) The Judicial Conference shall prescribe and publish the procedures for the consideration of proposed rules under this section.
(2) The Judicial Conference may authorize the appointment of committees to assist the Conference by recommending rules to be prescribed under sections 2072 and 2075 of this title. Each such committee shall consist of members of the bench and the professional bar, and trial and appellate judges.
(b) The Judicial Conference shall authorize the appointment of a standing committee on rules of practice, procedure, and evidence under subsection (a) of this section. Such standing commit-tee shall review each recommendation of any other committees so appointed and recommend to the Judicial Conference rules of practice, procedure, and evidence and such changes in rules pro-posed by a committee appointed under subsection (a)(2) of this section as may be necessary to maintain consistency and other-wise promote the interest of justice.
(c)(1) Each meeting for the transaction of business under this chapter by any committee appointed under this section shall be open to the public, except when the committee so meeting, in open session and with a majority present, determines that it is in the public interest that all or part of the remainder of the meeting on that day shall be closed to the public, and states the reason for so closing the meeting. Minutes of each meeting for the trans-action of business under this chapter shall be maintained by the committee and made available to the public, except that any portion of such minutes, relating to a closed meeting and made avail-able to the public, may contain such deletions as may be necessary to avoid frustrating the purposes of closing the meeting.

VI	AUTHORITY FOR PROMULGATION OF RULES

(2) Any meeting for the transaction of business under this chap-ter, by a committee appointed under this section, shall be pre-ceded by sufficient notice to enable all interested persons to at-tend.
(d)	In making a recommendation under this section or under section 2072 or 2075, the body making that recommendation shall provide a proposed rule, an explanatory note on the rule, and a written report explaining the body’s action, including any minority or other separate views.
(e)	Failure to comply with this section does not invalidate a rule prescribed under section 2072 or 2075 of this title.
(Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649, eff. Dec. 1, 1988; amended Pub. L. 103–394, title I, § 104(e), Oct. 22, 1994, 108 Stat. 4110.)
(a)	The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. The Supreme Court may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies.
(b)	Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.
(Added Pub. L. 100–702, title IV, § 401(a), Nov. 19, 1988, 102 Stat. 4649, eff. Dec. 1, 1988.)

The Supreme Court shall have the power to prescribe by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure in cases under title 11.
Such rules shall not abridge, enlarge, or modify any substantive right.
The Supreme Court shall transmit to Congress not later than May 1 of the year in which a rule prescribed under this section is to become effective a copy of the proposed rule. The rule shall take effect no earlier than December 1 of the year in which it is transmitted to Congress unless otherwise provided by law.
(Added Pub. L. 88–623, § 1, Oct. 3, 1964, 78 Stat. 1001; amended Pub. L. 95–598, title II, § 247, Nov. 6, 1978, 92 Stat. 2672; Pub. L. 103–394, title I, § 104(f), Oct. 22, 1994, 108 Stat. 4110.)

pWrapPolygonVertices8;7;(74,0);(74,10077);(0,10077);(0,21612);(21600,21612);(21600,0);(74,0);fBehindDocument1§ 2074. R effec

(VII)

The Supreme Court prescribes Federal Rules of Evidence pursuant to section 2072 of Title 28, United States Code, as enacted by Title IV ‘‘Rules Enabling Act’’ of Pub. L. 100–702 (approved November 19, 1988, 102 Stat. 4648), effective December 1, 1988, and section 2075 of Title 28. Pursuant to section 2074 of Title 28, the Supreme Court transmits to Congress (not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective) a copy of the proposed rule. The rule takes effect no earlier than December 1 of the year in which the rule is transmitted unless otherwise provided by law.
Pursuant to sections 3402, 3771, and 3772 of Title 18, United States Code, and sections 2072 and 2075 of Title 28, United States Code, as then in effect, the Supreme Court through the Chief Justice submitted Federal Rules of Evidence to Congress on February 5, 1973 (409 U.S. 1132; Cong. Rec., vol. 119, pt. 3, p. 3247, Exec. Comm. 359, H. Doc. 93–46). To allow additional time for Congress to review the proposed rules, Public Law 93–12 (approved March 30, 1973, 87 Stat. 9) provided that the proposed rules ‘‘shall have no force or effect except to the extent, and with such amendments,
as they may be expressly approved by Act of Congress’’.
Public Law 93–595 1 (approved January 2, 1975, 88 Stat. 1926) en-acted the Federal Rules of Evidence proposed by the Supreme Court, with amendments made by Congress, to be effective July 1, 1975.
Section 1 of Public Law 94–113 (approved October 16, 1975, 89 Stat. 576) added clause (C) to Rule 801(d)(1), effective October 31, 1975.
Section 1 of Public Law 94–149 (approved December 12, 1975, 89 Stat. 805) enacted technical amendments which affected the Table of Contents and Rules 410, 606(b), 803(23), 804(b)(3), and 1101(e).
Section 2 of Public Law 95–540 (approved October 28, 1978, 92 Stat. 2046) added Rule 412 and inserted item 412 in the Table of Contents. The amendments apply to trials that begin more than thirty days after October 28, 1978.
Section 251 of Public Law 95–598 (approved November 6, 1978, 92 Stat. 2673) amended Rule 1101(a) and (b) by striking out ‘‘, referees in bankruptcy,’’ and by substituting ‘‘title 11, United States
1 LEGISLATIVE HISTORY:
HOUSE REPORTS: No. 93–650 (Comm. on the Judiciary) and No. 93–1597 (Comm. of Conference).
SENATE REPORT No. 93–1277 (Comm. on the Judiciary).
CONGRESSIONAL RECORD, Vol. 120 (1974):
Jan. 30, Feb. 6, considered and passed House.
Nov. 21, 22, considered and passed Senate, amended.
Dec. 16, Senate agreed to conference report.
Dec. 17, 18, House agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 11, No. 1: Jan. 3, 1975, Presidential statement.

VIII	HISTORICAL NOTE

Code’’ for ‘‘the Bankruptcy Act’’, effective October 1, 1979, pursuant to section 402(c) of Public Law 95–598.
Section 252 of Public Law 95–598 would have amended Rule 1101(a) by inserting ‘‘the United States Bankruptcy Courts,’’ immediately after ‘‘the United States district courts,’’, effective April 1, 1984, pursuant to section 402(b) of Public Law 95–598. How-ever, following a series of amendments (extending the April 1, 1984, effective date) by Public Laws 98–249, § 1(a), 98–271, § 1(a), 98–299, § 1(a), 98–325, § 1(a), and 98–353, § 121(a), section 402(b) of Public Law 95–598 was amended by section 113 of Public Law 98–353 to provide that the amendment ‘‘shall not be effective’’.
An amendment to Rule 410 was proposed by the Supreme Court by order dated April 30, 1979, transmitted to Congress by the Chief Justice on the same day (441 U.S. 970, 1007; Cong. Rec., vol. 125, pt. 8, p. 9366, Exec. Comm. 1456; H. Doc. 96–112), and was to be effective August 1, 1979. Public Law 96–42 (approved July 31, 1979, 93 Stat. 326) delayed the effective date of the amendment to Rule 410 until December 1, 1980, or until and to the extent approved by Act of Congress, whichever is earlier. In the absence of further action by Congress, the amendment to Rule 410 became effective December 1, 1980.
Sections 142 and 402 of Public Law 97–164 (approved April 2, 1982, 96 Stat. 45, 57) amended Rule 1101(a), effective October 1, 1982.
Section 406 of Public Law 98–473 (approved October 12, 1984, 98 Stat. 2067) amended Rule 704.
Additional amendments were adopted by the Court by order dated March 2, 1987, transmitted to Congress by the Chief Justice on the same day (480 U.S. 1023; Cong. Rec., vol. 133, pt. 4, p. 4484, Exec. Comm. 713; H. Doc. 100–41), and became effective October 1, 1987. The amendments affected Rules 101, 104(c), (d), 106, 404(a)(1), (b), 405(b), 411, 602 to 604, 606, 607, 608(b), 609(a), 610, 611(c), 612, 613, 615, 701, 703, 705, 706(a), 801(a), (d), 803(5), (18), (19), (21), (24), 804(a), (b)(2), (3), (5), 806, 902(2), (3), 1004(3), 1007, and 1101(a).
Additional amendments were adopted by the Court by order dated April 25, 1988, transmitted to Congress by the Chief Justice on the same day (485 U.S. 1049; Cong. Rec., vol. 134, pt. 7, p. 9154, Exec. Comm. 3517; H. Doc. 100–187), and became effective November 1, 1988. The amendments affected Rules 101, 602, 608(b), 613(b), 615, 902(3), and 1101(a), (e).
Sections 7046 and 7075 of Public Law 100–690 (approved November 18, 1988, 102 Stat. 4400, 4405) amended the Tables of Contents and Rules 412, 615, 804(a)(5), and 1101(a). Section 7075(a) of Public Law 100–690, which directed the amendment of Rule 615 by inserting ‘‘a’’ before ‘‘party which is not a natural person.’’, could not be ex‑
ecuted because ‘‘party which is not a natural person.’’ did not ap‑
pear. However, the word ‘‘a’’ was inserted by the intervening amendment adopted by the Court by order dated April 25, 1988, effective November 1, 1988. Section 7075(c)(1) of Public Law 100–690, which directed the amendment of Rule 1101(a) by striking ‘‘Rules’’ and inserting ‘‘rules’’, could not be executed because of the intervening amendment adopted by the Court by order dated April 25, 1988, effective November 1, 1988.
An additional amendment was adopted by the Court by order dated January 26, 1990, transmitted to Congress by the Chief Justice on the same day (493 U.S. 1175; Cong. Rec., vol. 136, pt. 1, p.

HISTORICAL NOTE	IX

662, Exec. Comm. 2370; H. Doc. 101–142), and became effective December 1, 1990. The amendment affected Rule 609(a).
Additional amendments were adopted by the Court by order dated April 30, 1991, transmitted to Congress by the Chief Justice on the same day (500 U.S. 1001; Cong. Rec., vol. 137, pt. 7, p. 9721, Ex. Comm. 1189; H. Doc. 102–76), and became effective December 1, 1991. The amendments affected Rules 404(b) and 1102.
Additional amendments were adopted by the Court by order dated April 22, 1993, transmitted to Congress by the Chief Justice on the same day (507 U.S. 1187; Cong. Rec., vol. 139, pt. 6, p. 8127, Ex. Comm. 1104; H. Doc. 103–76), and became effective December 1, 1993. The amendments affected Rules 101, 705, and 1101(a), (e).
An additional amendment was adopted by the Court by order dated April 29, 1994, and transmitted to Congress by the Chief Justice on the same day (511 U.S. 1187; Cong. Rec., vol. 140, pt. 7, p. 8903, Ex. Comm. 3085; H. Doc. 103–250). The amendment affected Rule 412 and was to become effective December 1, 1994. Section 40141(a) of Public Law 103–322 (approved September 13, 1994, 108 Stat. 1918) provided that such amendment would take effect on December 1, 1994, but with the general amendment of Rule 412 made by section 40141(b) of Public Law 103–322.
Section 320935(a) of Public Law 103–322 (approved September 13, 1994, 108 Stat. 2135) amended the Federal Rules of Evidence by adding Rules 413 to 415, with provisions in section 320935(b)–(e) of Public Law 103–322 relating to the effective date and application of such rules. Pursuant to Pub. L. 103–322, § 320935(c), the Judicial Conference transmitted a report to Congress on February 9, 1995, containing recommendations different from the amendments made by Pub. L. 103–322, § 320935(a). Congress did not adopt the recommendations submitted or provide otherwise by law. Accordingly, Rules 413 to 415, as so added, became effective on July 9, 1995.
Additional amendments were adopted by the Court by order dated April 11, 1997, transmitted to Congress by the Chief Justice on the same day (520 U.S. 1323; Cong. Rec., vol. 143, pt. 4, p. 5550, Ex. Comm. 2798; H. Doc. 105–69), and became effective December 1, 1997. The amendments affected Rules 407, 801, 803, 804, and 806 and added Rule 807.
Additional amendments were adopted by the Court by order dated April 24, 1998, transmitted to Congress by the Chief Justice on the same day (523 U.S. 1235; Cong. Rec., vol. 144, p. H2813, Daily Issue, Ex. Comm. 8996 to Ex. Comm. 8998; H. Doc. 105–268), and be-came effective December 1, 1998. The amendments affected Rule 615.
Additional amendments were adopted by the Court by order dated April 17, 2000, transmitted to Congress by the Chief Justice on the same day (529 U.S. 1189; Cong. Rec., vol. 146, p. H2405, Daily Issue, Ex. Comm. 7333; H. Doc. 106–225), and became effective December 1, 2000. The amendments affected Rules 103, 404, 701, 702, 703, 803, and 902.
An additional amendment was adopted by the Court by order dated March 27, 2003, transmitted to Congress by the Chief Justice on the same day (538 U.S. ——; Cong. Rec., vol. 149, p. H2467, Daily Issue, Ex. Comm. 1494; H. Doc. 108–57), and became effective December 1, 2003. The amendment affected Rule 608.

X	HISTORICAL NOTE

Committee Notes prepared by the Committee on Rules of Practice and Procedure and the Advisory Committee on the Federal Rules of Evidence, Judicial Conference of the United States, explaining the purpose and intent of the amendments are set out in the Appendix to Title 28, United States Code, following the particular rule to which they relate. In addition, the notes are set out in the House documents listed above.

Page
Foreword 	III
Authority for promulgation of rules 	V
Historical note 	VII

RULES

Article I. General Provisions:
Rule 101. Scope 	1
Rule 102. Purpose and construction 	1 Rule 103. Rulings on evidence:
(a) Effect of erroneous ruling:
(1)	Objection 	1
Offer of proof 	1
(b) Record of offer and ruling 	1
(c) Hearing of jury 	1
(d) Plain error 	2 Rule 104. Preliminary questions:
(a)	Questions of admissibility generally 	2
Relevancy conditioned on fact 	2
Hearing of jury 	2
Testimony by accused 	2
Weight and credibility 	2
Rule 105. Limited admissibility 	2
Rule 106. Remainder of or related writings or recorded statements 	2 Article II. Judicial Notice:
Rule 201. Judicial notice of adjudicative facts:
(a)	Scope of rule 	2
Kinds of facts 	2
When discretionary 	3
When mandatory 	3
Opportunity to be heard 	3
Time of taking notice 	3
(g)	Instructing jury 	3 Article III. Presumptions in Civil Actions and Proceedings:
Rule 301. Presumptions in general in civil actions and proceedings 	3
Rule 302. Applicability of State law in civil actions and proceedings 	3 Article IV. Relevancy and Its Limits:
Rule 401. Definition of ‘‘relevant evidence’’ 	3 Rule 402. Relevant evidence generally admissible; irrelevant evidence
inadmissible 	3 Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion,
or waste of time 	4 Rule 404. Character evidence not admissible to prove conduct; exceptions;
other crimes:
(a) Character evidence generally:
(1)	Character of accused 	4
Character of alleged victim 	4
Character of witness 	4
(b) Other crimes, wrongs, or acts 	4 Rule 405. Methods of proving character:
(a)	Reputation or opinion 	4
Specific instances of conduct 	4
Rule 406. Habit; routine practice 	5
Rule 407. Subsequent remedial measures 	5
Rule 408. Compromise and offers to compromise 	5

XII	CONTENTS
Article IV. Relevancy and Its Limits—Continued	Page
Rule 409. Payment of medical and similar expenses 	5
Rule 410. Inadmissibility of pleas, plea discussions, and related statements	5
Rule 411. Liability insurance 	6
Rule 412. Sex Offense Cases; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition:
(a)	Evidence generally inadmissible 	6
Exceptions 	6
Procedure to determine admissibility 	6
Rule 413. Evidence of Similar Crimes in Sexual Assault Cases 	7
Rule 414. Evidence of Similar Crimes in Child Molestation Cases 	7
Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual
Assault or Child Molestation 	8
Article V. Privileges:
Rule 501. General rule 	8
Article VI. Witnesses:
Rule 601. General rule of competency 	9
Rule 602. Lack of personal knowledge 	9
Rule 603. Oath or affirmation 	9
Rule 604. Interpreters 	9
Rule 605. Competency of judge as witness 	9
Rule 606. Competency of juror as witness:
(a)	At the trial 	9
Inquiry into validity of verdict or indictment 	9
Rule 607. Who may impeach 	10
Rule 608. Evidence of character and conduct of witness:
(a)	Opinion and reputation evidence of character 	10
(b)	Specific instances of conduct 	10 Rule 609. Impeachment by evidence of conviction of crime:
(a)	General rule 	10
Time limit 	10
Effect of pardon, annulment, or certificate of rehabilitation 	11
Juvenile adjudications 	11
Pendency of appeal 	11
Rule 610. Religious beliefs or opinions 	11
Rule 611. Mode and order of interrogation and presentation:
(a)	Control by court 	11
Scope of cross-examination 	11
Leading questions 	11
Rule 612. Writing used to refresh memory 	12
Rule 613. Prior statements of witnesses:
(a)	Examining witness concerning prior statement 	12
(b)	Extrinsic evidence of prior inconsistent statement of witness 	12 Rule 614. Calling and interrogation of witnesses by court:
(a)	Calling by court 	12
Interrogation by court 	12
Objections 	12
Rule 615. Exclusion of witnesses 	13
Article VII. Opinions and Expert Testimony:
Rule 701. Opinion testimony by lay witnesses 	13
Rule 702. Testimony by experts 	13
Rule 703. Bases of opinion testimony by experts 	13
Rule 704. Opinion on ultimate issue 	14
Rule 705. Disclosure of facts or data underlying expert opinion 	14
Rule 706. Court appointed experts:
(a)	Appointment 	14
Compensation 	14
Disclosure of appointment 	14
(d)	Parties’ experts of own selection 	14 Article VIII. Hearsay: Rule 801. Definitions:
(a)	Statement 	15
Declarant 	15
Hearsay 	15
(d)	Statements which are not hearsay:
(1)	Prior statement by witness 	15
Admission by party-opponent 	15
Rule 802. Hearsay rule 	15

CONTENTS	XIII
Article VIII. Hearsay—Continued
Rule 803. Hearsay exceptions; availability of declarant immaterial:	Page
(1)	Present sense impression 	15
Excited utterance 	16
Then existing mental, emotional, or physical condition 	16
Statements for purposes of medical diagnosis or treatment 	16
Recorded recollection 	16
Records of regularly conducted activity 	16
(7)	Absence of entry in records kept in accordance with the provisions
of paragraph (6) 	16
(8)	Public records and reports 	16
Records of vital statistics 	17
Absence of public record or entry 	17
Records of religious organizations 	17
Marriage, baptismal, and similar certificates 	17
Family records 	17
Records of documents affecting an interest in property 	17
Statements in documents affecting an interest in property 	17
Statements in ancient documents 	17
Market reports, commercial publications 	18
Learned treatises 	18
Reputation concerning personal or family history 	18
Reputation concerning boundaries or general history 	18
Reputation as to character 	18
Judgment of previous conviction 	18
(23)	Judgment as to personal, family, or general history, or boundaries	18
(24)	Other exceptions (Transferred).
Rule 804. Hearsay exceptions; declarant unavailable:
(a)	Definition of unavailability 	18
(b)	Hearsay exceptions:
(1)	Former testimony 	19
Statement under belief of impending death 	19
Statement against interest 	19
Statement of personal or family history 	19
(5)	Other exceptions (Transferred).
(6)	Forfeiture by wrongdoing 	19
Rule 805. Hearsay within hearsay 	20
Rule 806. Attacking and supporting credibility of declarant 	20
Rule 807. Residual exception 	20
Article IX. Authentication and Identification:
Rule 901. Requirement of authentication or identification:
(a)	General provision 	20
(b)	Illustrations:
(1)	Testimony of witness with knowledge 	20
Nonexpert opinion on handwriting 	21
Comparison by trier or expert witness 	21
Distinctive characteristics and the like 	21
Voice identification 	21
Telephone conversations 	21
Public records or reports 	21
Ancient documents or data compilation 	21
Process or system 	21
(10)	Methods provided by statute or rule 	21 Rule 902. Self-authentication:
(1)	Domestic public documents under seal 	21
Domestic public documents not under seal 	21
Foreign public documents 	22
Certified copies of public records 	22
Official publications 	22
Newspapers and periodicals 	22
Trade inscriptions and the like 	22
Acknowledged documents 	22
Commercial paper and related documents 	22
Presumptions under Acts of Congress 	22
Certified domestic records of regularly conducted activity 	22
Certified foreign records of regularly conducted activity 	23
Rule 903. Subscribing witness’ testimony unnecessary 	23

XIV	CONTENTS
Article X. Contents of Writings, Recordings, and Photographs:
Rule 1001. Definitions:	Page
(1)	Writings and recordings 	23
Photographs 	24
Original 	24
Duplicate 	24
Rule 1002. Requirement of original 	24
Rule 1003. Admissibility of duplicates 	24
Rule 1004. Admissibility of other evidence of contents:
(1)	Originals lost or destroyed 	24
Original not obtainable 	24
Original in possession of opponent 	24
Collateral matters 	24
Rule 1005. Public records 	24
Rule 1006. Summaries 	25
Rule 1007. Testimony or written admission of party 	25
Rule 1008. Functions of court and jury 	25
Article XI. Miscellaneous Rules:
Rule 1101. Applicability of rules:
(a) Courts and judges 	25
(b) Proceedings generally 	25
(c) Rule of privilege 	25
(d) Rules inapplicable:
(1)	Preliminary questions of fact 	26
Grand jury 	26
Miscellaneous proceedings 	26
(e) Rules applicable in part 	26
Rule 1102. Amendments 	27
Rule 1103. Title 	27

(1)

ARTICLE I. GENERAL PROVISIONS

These rules govern proceedings in the courts of the United States and before the United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Apr. 22, 1993, eff. Dec. 1, 1993.)

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and pro-motion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

(a) Effect of erroneous ruling.—Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1)	Objection.—In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
Offer of proof.—In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(b) Record of offer and ruling.—The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of jury.—In jury cases, proceedings shall be con-ducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

FEDERAL RULES OF EVIDENCE

2

(d) Plain error.—Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
(As amended Apr. 17, 2000, eff. Dec. 1, 2000.)

(a)	Questions of admissibility generally.—Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be deter-mined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
Relevancy conditioned on fact.—When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
Hearing of jury.—Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.
Testimony by accused.—The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
Weight and credibility.—This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.) ARTICLE II. JUDICIAL NOTICE

(a)	Scope of rule.—This rule governs only judicial notice of adjudicative facts.
Kinds of facts.—A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2)

3	FEDERAL RULES OF EVIDENCE

capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c)	When discretionary.—A court may take judicial notice, whether requested or not.
When mandatory.—A court shall take judicial notice if re-quested by a party and supplied with the necessary information.
(e)	Opportunity to be heard.—A party is entitled upon timely re-quest to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f)	Time of taking notice.—Judicial notice may be taken at any stage of the proceeding.
(g)	Instructing jury.—In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND
PROCEEDINGS

In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast.

In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.
ARTICLE IV. RELEVANCY AND ITS LIMITS

‘‘Relevant evidence’’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

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.

(a) 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.—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;
Character of alleged victim.—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.
(b) Other crimes, wrongs, or acts.—Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a per-son in order to show action in conformity therewith. It may, how-ever, 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 reason-able 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.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000.)

(a)	Reputation or opinion.—In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
Specific instances of conduct.—In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)

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Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the 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, a defect in a product’s design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of pre-cautionary measures, if controverted, or impeachment.
(As amended Apr. 11, 1997, eff. Dec. 1, 1997.)

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for an-other purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(1)	a plea of guilty which was later withdrawn;
a plea of nolo contendere;
any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or
any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

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However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.
(As amended Dec. 12, 1975; Apr. 30, 1979, eff. Dec. 1, 1980.)

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
Rule 4 Sego
(a) Evidence Generally Inadmissible.—The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
(1)	Evidence offered to prove that any alleged victim en-gaged in other sexual behavior.
Evidence offered to prove any alleged victim’s sexual pre-disposition.
(b) Exceptions.
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A)	evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;
evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
(C)	evidence the exclusion of which would violate the constitutional rights of the defendant.
(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.
(c) Procedure To Determine Admissibility.
(1) A party intending to offer evidence under subdivision (b) must—
(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

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(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim’s guardian or
representative.
(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.
(As added Oct. 28, 1978, eff. Nov. 28, 1978; amended Nov. 18, 1988; Apr. 29, 1994, eff. Dec. 1, 1994; Sept. 13, 1994, eff. Dec. 1, 1994.)

(a)	In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
(c)	This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
(d)	For purposes of this rule and Rule 415, ‘‘offense of sexual assault’’ means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved—
(1)	any conduct proscribed by chapter 109A of title 18, United States Code;
(2)	contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person;
(3)	contact, without consent, between the genitals or anus of the defendant and any part of another person’s body;
(4)	deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another per-son; or
(5)	an attempt or conspiracy to engage in conduct described in paragraphs (1)–(4).
(Added Sept. 13, 1994, eff. July 9, 1995.)

(a)	In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.
In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

FEDERAL RULES OF EVIDENCE	8
(c)	This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
(d)	For purposes of this rule and Rule 415, ‘‘child’’ means a per-son below the age of fourteen, and ‘‘offense of child molestation’’ means a crime under Federal law or the law of a State (as defined in section 513 of title 18, United States Code) that involved—
(1)	any conduct proscribed by chapter 109A of title 18, United
States Code, that was committed in relation to a child;
(2)	any conduct proscribed by chapter 110 of title 18, United
States Code;
(3)	contact between any part of the defendant’s body or an object and the genitals or anus of a child;
contact between the genitals or anus of the defendant and any part of the body of a child;
deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or
an attempt or conspiracy to engage in conduct described in paragraphs (1)–(5).

(a)	In a civil case in which a claim for damages or other relief is predicated on a party’s alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party’s commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.
A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
(c)	This rule shall not be construed to limit the admission or consideration of evidence under any other rule.
(Added Sept. 13, 1994, eff. July 9, 1995.) ARTICLE V. PRIVILEGES

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 there-of shall be determined in accordance with State law.

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9

Every person is competent to be a witness except as otherwise provided in these rules. 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 competency of a witness shall be determined in accordance with State law.

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.)

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)

An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

(a)	At the trial.—A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
(b)	Inquiry into validity of verdict or indictment.—Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear

FEDERAL RULES OF EVIDENCE

10

upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
(As amended Dec. 12, 1975; Mar. 2, 1987, eff. Oct. 1, 1987.)

The credibility of a witness may be attacked by any party, including the party calling the witness.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)

(a)	Opinion and reputation evidence of character.—The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
Specific instances of conduct.—Specific instances of the con-duct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truth-fulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Mar. 27, 2003, eff. Dec. 1, 2003.)

(a) General rule.—For the purpose of attacking the credibility of a witness,
(1)	evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.
(b) Time limit.—Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later

11	FEDERAL RULES OF EVIDENCE

date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
(c)	Effect of pardon, annulment, or certificate of rehabilitation.—Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
Juvenile adjudications.—Evidence of juvenile adjudications is generally not admissible under this rule. The court may, how-ever, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
Pendency of appeal.—The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Jan. 26, 1990, eff. Dec. 1, 1990.)

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)

(a)	Control by court.—The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid need-less consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
Scope of cross-examination.—Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
Leading questions.—Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

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(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either—
(1)	while testifying, or
before testifying, if the court in its discretion determines it is necessary in the interests of justice,
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice re-quires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)

(a)	Examining witness concerning prior statement.—In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.
Extrinsic evidence of prior inconsistent statement of witness.—Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.)

(a)	Calling by court.—The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
(b)	Interrogation by court.—The court may interrogate witnesses, whether called by itself or by a party.
Objections.—Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

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At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause, or (4) a person authorized by statute to be present.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Nov. 18, 1988; Apr. 24, 1998, eff. Dec. 1, 1998.)
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

If the witness is not testifying as an expert, the witness’ 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 the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000.)

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, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
(As amended Apr. 17, 2000, eff. Dec. 1, 2000.)

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 the expert at or before the hearing. If of a type reason-ably 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 in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially out-weighs their prejudicial effect.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000.)

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(a)	Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objection-able because it embraces an ultimate issue to be decided by the trier of fact.
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.
(As amended Oct. 12, 1984.)
Rule 70
The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to 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.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)

(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 the witness consents to act. A witness so appointed shall be informed of the witness’ 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 the witness’ findings, if any; the witness’ deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.
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 involving just 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.
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’ experts of own selection.—Nothing in this rule limits the parties in calling expert witnesses of their own selection.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)

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ARTICLE VIII. HEARSAY

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 the person 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 hear-say 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 the declarant’s 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 the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or
Admission by party-opponent.—The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).
(As amended Oct. 16, 1975, eff. Oct. 31, 1975; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997.)

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.

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.

FEDERAL RULES OF EVIDENCE	16
(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.
Then 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.
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.
Recorded recollection.—A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ 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.
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, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, 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.
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.
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

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17

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 in-formation or other circumstances indicate lack of trust-worthiness.
(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.
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.
Marriage, baptismal, and similar certificates.—Statements of fact contained in a certificate that the maker per-formed 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.
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.
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.
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 in-consistent 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.

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(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.
Learned treatises.—To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness 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.
Reputation concerning personal or family history.—Reputation among members of a person’s family by blood, adoption, or marriage, or among a person’s 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 personal or family history.
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.
Reputation as to character.—Reputation of a person’s character among associates or in the community.
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.
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.
[Other exceptions.] [Transferred to Rule 807]
(As amended Dec. 12, 1975; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 17, 2000, eff. Dec. 1, 2000.)

(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 the declarant’s statement; or
persists in refusing to testify concerning the subject mat-ter of the declarant’s statement despite an order of the court to do so; or
(3)	testifies to a lack of memory of the subject matter of the declarant’s statement; or

19	FEDERAL RULES OF EVIDENCE

(4)	is unable to be present or to testify at the hearing be-cause of death or then existing physical or mental illness or infirmity; or
is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal,
claim of lack of memory, inability, or absence is due to the pro‑
curement or wrongdoing of the proponent of a 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 an-other 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.
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 the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
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 the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable per-son in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to ex-pose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
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 per-son, 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.
(5)	[Other exceptions.] [Transferred to Rule 807]
(6)	Forfeiture by wrongdoing.—A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

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20

(As amended Dec. 12, 1975; Mar. 2, 1987, eff. Oct. 1, 1987; Nov. 18, 1988; Apr. 11, 1997, eff. Dec. 1, 1997.)

Hearsay included within hearsay is not excluded under the hear-say rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

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 the declarant’s hearsay statement, is not subject to any requirement that the declarant 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 the declarant on the statement as if under cross-examination.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997.)

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, 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, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.
(Added Apr. 11, 1997, eff. Dec. 1, 1997.)
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

(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.
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.

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21

(2)	Nonexpert opinion on handwriting.—Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
Comparison by trier or expert witness.—Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
Distinctive characteristics and the like.—Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
Voice identification.—Identification of a voice, whether heard firsthand or through mechanical or electronic trans-mission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
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.
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.
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.
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.
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.

Extrinsic evidence of authenticity 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 the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and

FEDERAL RULES OF EVIDENCE	22

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 an 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 an 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.
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.
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.
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.
Commercial paper and related documents.—Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.
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.
Certified domestic records of regularly conducted activity.—The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act

23	FEDERAL RULES OF EVIDENCE

of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record—
(A)	was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
was kept in the course of the regularly conducted activity; and
was made by the regularly conducted activity as a
regular practice.
A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
(12) Certified foreign records of regularly conducted activity.—In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record—
(A)	was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
was kept in the course of the regularly conducted activity; and
was made by the regularly conducted activity as a
regular practice.
The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Apr. 17, 2000, eff. Dec. 1, 2000.)

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, AND
PHOTOGRAPHS

For purposes of this article the following definitions are applicable:
(1) Writings and recordings.—‘‘Writings’’ and ‘‘recordings’’ consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating,

FEDERAL RULES OF EVIDENCE	24

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.
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 there-from. 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’’.
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 techniques which accurately reproduces the 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.

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.

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 or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
Original not obtainable.—No original can be obtained by any available judicial process or procedure; or
Original in possession of opponent.—At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or other-wise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
Collateral matters.—The writing, recording, or photo-graph is not closely related to a controlling issue.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)

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

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25

obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

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 other parties at reasonable time and place. The court may order that they be produced in court.

Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission, without accounting for the nonproduction of the original.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)

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.

ARTICLE XI. MISCELLANEOUS RULES

(a)	Courts and judges.—These rules apply to the United States district courts, the District Court of Guam, the District Court of the Virgin Islands, the District Court for the Northern Mariana Is-lands, the United States courts of appeals, the United States Claims Court, 1 and to United States bankruptcy judges and United States magistrate judges, in the actions, cases, and proceedings and to the extent hereinafter set forth. The terms ‘‘judge’’ and ‘‘court’’ in these rules include United States bankruptcy judges and United States magistrate judges.
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.
Rules inapplicable.—The rules (other than with respect to privileges) do not apply in the following situations:
1 Pub. L. 102–572, title IX, § 902(b)(1), Oct. 29, 1992, 106 Stat. 4516, provided that reference in any other Federal law or any document to the ‘‘United States Claims Court’’ shall be deemed to refer to the ‘‘United States Court of Federal Claims’’.

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(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.
Grand jury.—Proceedings before grand juries.
(3)	Miscellaneous proceedings.—Proceedings for extradition
or rendition; preliminary examinations in criminal cases; sen‑
tencing, or granting or revoking probation; issuance of war‑
rants for arrest, criminal summonses, and search warrants;
and proceedings with respect to release on bail or otherwise.
(e) Rules applicable in part.—In the following proceedings these rules apply to the extent that matters of evidence are not provided for in the statutes which govern procedure therein or in other rules prescribed by the Supreme Court pursuant to statutory authority: the trial of misdemeanors and other petty offenses before United States magistrate judges; review of agency actions when the facts are subject to trial de novo under section 706(2)(F) of title 5, United States Code; review of orders of the Secretary of Agriculture under section 2 of the Act entitled ‘‘An Act to authorize association of producers of agricultural products’’ approved February 18, 1922 (7 U.S.C. 292), and under sections 6 and 7(c) of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499f, 499g(c)); naturalization and revocation of naturalization under sections 310–318 of the Immigration and Nationality Act (8 U.S.C. 1421–1429); prize proceedings in admiralty under sections 7651–7681 of title 10, United States Code; review of orders of the Secretary of the Interior under section 2 of the Act entitled ‘‘An Act authorizing associations of producers of aquatic products’’ approved June 25, 1934 (15 U.S.C. 522); review of orders of petroleum control boards under section 5 of the Act entitled ‘‘An Act to regulate interstate and foreign commerce in petroleum and its products by prohibiting the shipment in such commerce of petroleum and its products produced in violation of State law, and for other purposes’’, approved February 22, 1935 (15 U.S.C. 715d); actions for fines, penalties, or forfeitures under part V of title IV of the Tariff Act of 1930 (19 U.S.C. 1581–1624), or under the Anti-Smuggling Act (19 U.S.C. 1701–1711); criminal libel for condemnation, exclusion of imports, or other proceedings under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301–392); disputes between seamen under sections 4079, 4080, and 4081 of the Revised Statutes (22 U.S.C. 256–258); habeas corpus under sections 2241–2254 of title 28, United States Code; motions to vacate, set aside or correct sentence under section 2255 of title 28, United States Code; actions for penalties for refusal to transport destitute seamen under section 4578 of the Revised Statutes (46 U.S.C. 679); 2 actions against the United States under the Act entitled ‘‘An Act authorizing suits against the United States in admiralty for damage caused by and salvage service rendered to public vessels belonging to the United States, and for other purposes’’, approved March 3, 1925 (46 U.S.C. 781–790), as implemented by section 7730 of title 10, United States Code.
(As amended Dec. 12, 1975; Nov. 6, 1978, eff. Oct. 1, 1979; Apr. 2, 1982, eff. Oct. 1, 1982; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Nov. 18, 1988; Apr. 22, 1993, eff. Dec. 1, 1993.)

2 Repealed and reenacted as 46 U.S.C. 11104(b)–(d) by Pub. L. 98–89, §§ 1, 2(a), 4(b), Aug. 26, 1983, 97 Stat. 500.

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27

0

Amendments to the Federal Rules of Evidence may be made as provided in section 2072 of title 28 of the United States Code.
(As amended Apr. 30, 1991, eff. Dec. 1, 1991.)

These rules may be known and cited as the Federal Rules of Evidence.