United States Law/Evidence

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The Federal Rules of Evidence for United States Courts (FRE)[1][2] replaced a body of common-law rules of evidence. The FRE are for use in United States Federal Courts.

Students of Evidence law should note, however, that Evidence Codes in State law in the United States largely mirror the FRE, with additions, editions, and exceptions to the rules comprised and compiled in the FRE. Evidence law students should refer to a compilation of the Rules as promulgated by the Supreme Court of the United States. Headings and brief descriptions of the rules will be listed below.[3]

Caselaw interpreting and applying the rules will be thereinafter cited, to assist Evidence law students as to a comprehension of the application of the FRE to and in trial law, both oral and briefed, both civil and criminal.

The FRE currently have Eleven Articles:

Federal Rules of Evidence for United States Courts[edit | edit source]

Article I: GENERAL PROVISIONS[edit | edit source]

Rules 101-106[edit | edit source]

Rule 101. Scope.[edit | edit source]

Prescribes the federal courts in which the FRE are applicable. Also refer to Rule 1101 as to the extent thereof and exceptions thereto.

United States v. Monsanto, 924 F.2d 1186 (2d Cir. 1991). Also as to Fed.R.Evid. 1101.[4][5][6][7][8][9][10]

Rule 102. Purpose and Construction.[edit | edit source]

Prescribes the general purposes of the FRE.

United States v. Opager, 589 F.2d 799 (5th Cir. 1979). As to Fed.R.Evid. 608.[11]

Rule 103. Rulings on Evidence.[edit | edit source]
Rule 103(a). Effect of erroneous ruling.[edit | edit source]

Harmless error occurs when a substantial right of a party is not affected by admission or exclusion of evidence.

Rule 103(a)(1). Objection.[edit | edit source]

Adverse party to admission of evidence requires timely objection or motion to strike to preserve objection. May require statement of specific ground for objection.

People v. Dunham, 559 N.W.2d 360, 220 Mich. App. 268 (1997). As to Fed.R.Evid 103(a)(1), 103(d), and 404(b).[12]

Rule 103(a)(2). Offer of proof.[edit | edit source]

Adverse party to exclusion of evidence requires the making of the substance of the evidence known to the court. No requirement for objection or offer of proof to preserve claim on appeal.

Fox v. Dannenberg, 906 F.2d 1253 (8th Cir. 1990).[13]

Rule 103(b). Record of offer and ruling.[edit | edit source]

The court may additionally characterize the evidence. The court may direct the making of an offer in question-and-answer form.

Rule 103(c). Hearing of Jury.[edit | edit source]

By no means is the jury to be made aware of inadmissible evidence. Statements or offers of proof are to be made outside the awareness of the jury.

United States v. Sutherland, 656 F.2d 1181 (5th Cir. 1981).[14]

Rule 103(d). Plain error.[edit | edit source]

"Taking notice of plain errors"[15] may be made even when not brought to the attention of the court by exception.[16] Ex gratia[17], a prima facie[18] showing of prima facie[19] proof of plain error may be made on appeal, notwithstanding a party's failure to object in the trial court or in the court below the appellate court.

Rojas v. Richardson, 703 F.2d 186 (5th Cir. 1983). Also as to Fed.R.Evid. 403.[20]

Rule 104. Preliminary Questions.[edit | edit source]
Rule 104(a). Questions of Admissibility Generally.[edit | edit source]

Only rules of privilege and not other rules of evidence are to be considered when the court considers preliminary questions such as witnesses, privileges, or admissibility of evidence (usually through a motion in limine,[21] which, if granted, becomes an order in limine that evidence be admitted or excluded preliminary to trial).

United States v. Campbell, 73 F.3d 44 (5th Cir. 1996).[22]

Green v. State, 840 S.W.2d 394 (Tex.Cr.App. 1992).[23] Also as to Fed.R.Evid. 804.

Rule 104(b). Relevancy conditioned on fact.[edit | edit source]

Also known as "conditional admissibility", or "connect[ing] up", if a prima facie showing is not later made as to a "fulfillment of the condition",[24] the conditionally-admitted evidence will thereby and thereafter be excluded at trial.

United States v. Platero, 72 F.3d 806 (10th Cir. 1995).[25] Also as to Rules 104(a), 412(a) and 412(c).

Ricketts v. City of Hartford, 74 F.3d 1397 (2d Cir. 1996)[26] Also as to Rules 104(a) and 901.

Rule 104(c). Hearing of Jury.[edit | edit source]
Rule 104(d). Testimony by accused.[edit | edit source]
Rule 104(e). Weight and credibility.[edit | edit source]
Rule 105. Limited Admissibility.[edit | edit source]

Provides that the court instruct the jury "[w]hen evidence is admissible as to one party for one purpose but not admissible as to another party or for another purpose."[27][28]

Government of the [United States] Virgin Islands v. Mujahid, 990 F.2d 111 (3d Cir. 1993).[29]

Rule 106. Remainder of Related Writings of Recorded Statements.[edit | edit source]

Sets forth that adverse party is to have additional, usually penumbral, evidence in the form of a "writing or recorded statement"[30] admitted when such evidence ought to be admitted "in fairness to be considered contemporaneously with it."[31]

United States v. Sutton, 801 F.2d 1346 (D.C. Cir. 1986).[32]

Article II: JUDICIAL NOTICE[edit | edit source]

Rules 201(a)-201(g)[edit | edit source]

Rule 201(a). Scope of rule.[edit | edit source]
Rule 201(b). Kinds of facts.[edit | edit source]

No reasonable dispute can be had against judicially-noticed facts according to this rule. These are generally limited to "(1) generally known [facts] within the territorial jurisdiction...or (2) capable of...determination by resort to sources whose accuracy cannot reasonably be questioned."[33]

Barber v. Ponte, 772 F.2d 982 (1st Cir. 1985).[34]

Griswold v. Commonwealth [of Virginia], 452 S.E.2d 287, 19 Va.App. 477 (1985).[35]

Rule 201(c). When discretionary.[edit | edit source]

A court may take judicial notice sua sponte, [36] or upon motion made by either party.[37]

Barber v. Ponte, 772 F.2d 982 (1st. Cir. 1985).[38]

Rule 201(d). When mandatory.[edit | edit source]

Upon request, and when the requisite and qualifying information is provided to the court, "[a] court shall take judicial notice..."[39]

Rule 201(e). Opportunity to be heard.[edit | edit source]
Rule 201(f). Time of taking notice.[edit | edit source]
Rule 201(g). Instructing Jury.[edit | edit source]


Rules 301-302[edit | edit source]

Rule 301. Presumptions in General in Civil Actions and Proceedings.[edit | edit source]

When a presumption arises, the "party against whom it is directed [has] the burden of going forward with the evidence"[40] to prove or rebut it, however this burden does not shift to the imposing party to the extent of "nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast."[41]

United States v. Ahrens, 530 F.2d 781 (8th Cir. 1976).[42]

In re: The Yoder Company, 758 F.2d 1114 (6th Cir. 1985).[43]

Rule 302. Applicability of State Law in Civil Actions and Proceedings.[edit | edit source]

Where State law provides "the rule of decision",[44] such State law prevails in determining the effect of a presumption with respect to a "fact which is an element of a claim or defense."[45]

Monger v. Cessna Aircraft Company, 812 F.2d 402 (8th Cir. 1987).[46]

Article IV: RELEVANCY AND ITS LIMITS[edit | edit source]

Rules 401-415[edit | edit source]

Article V: PRIVILEGES[edit | edit source]

Rule 501[edit | edit source]

Article VI: WITNESSES[edit | edit source]

Rules 601-615[edit | edit source]

Article VII: OPINIONS AND EXPERT TESTIMONY[edit | edit source]

Rules 701-706(d)[edit | edit source]

Article VIII: HEARSAY[edit | edit source]

Rules 801-807[edit | edit source]


Rules 901-903[edit | edit source]


Rules 1001-1008[edit | edit source]

Article XI: MISCELLANEOUS RULES[edit | edit source]

Rules 1101-1103[edit | edit source]


Rule 105[edit | edit source]

Rule 301 (As prescribed by the Supreme Court of the United States)[edit | edit source]

Rule 301 (As passed by the United States House of Representatives[edit | edit source]

Footnotes[edit | edit source]

  1. Public Law 93-595; 88 STAT. 1926, approved Jan. 2, 1975.
  2. The FRE are formally cited as "Fed.R.Evid."
  3. The descriptions of the rule's prescriptions are not a verbatim quotation of the rules as promulgated.
  4. Case cited in Scott, John N.: Evidence Illustrated: Cases to Illustrate How All the Rules Work. Holmes Beach, Florida: LP Law, a division of Learning Publications, Inc., 2000. p.1.
  5. The Rules paraphrased herein are entirely the intellectual production and intellectual property of the author of this Wikiversity article.
  6. The verbatim quotes of the FRE herein are under the Fair Use doctrine.
  7. John N. Scott is a Professor of Evidence Law with the faculty of Thomas M. Cooley Law School.
  8. The caselaw cited herein are derived from class notes made by the author during the author's attendance in an Evidence law class at Thomas M. Cooley Law School.
  9. Page cites to Evidence Illustrated are therefore for the student's convenience only, and do not constitute copyright infringement.
  10. Thomas M. Cooley Law School "Bio" of Professor John N. Scott
  11. Evidence Illustrated: Cases to Illustrate How All the Rules Work. p.2.
  12. Evidence Illustrated: Cases to Illustrate How All the Rules Work, p.4.
  13. Evidence Illustrated: Cases to Illustrate How All the Rules Work. p.5.
  14. Evidence Illustrated: Cases to Illustrate How All the Rules Work, p.6.
  15. clause cited verbatim from Fed.R.Evid. 103(d).
  16. "Exception", in this context, is a common-law term of art which refers to a trial lawyer placing on objection on the record.
  17. "Ex gratia", in legal texts, is often abbreviated to "e.g."
  18. [A] party's successfully surmounting his burden of showing evidence.
  19. "[U]nless the contrary is shown," Clapp, James E.: Random House Webster's Dictionary of the Law, Random House Reference and Information Publishing, 2000, at "prima facie proof".
  20. Evidence Illustrated: Cases to Illustrate How All the Rules Work. p.7.
  21. Literally "at the outset", see Black's Law Dictionary, 8th Ed., p.803, at 'in limine'
  22. Evidence Illustrated: Cases to Illustrate How All the Rules Work, p.8.
  23. Evidence Illustrated: Cases to Illustrate How All the Rules Work, p.10.
  24. Fed.R.Evid 104(b), Cl.4, verbatim
  25. Evidence Illustrated: Cases to Illustrate How All the Rules Work, pp.11-12.
  26. Evidence Illustrated: Cases to Illustrate How All the Rules Work, pp.13-14.
  27. Fed.R.Evid. 105, Cl.1, verbatim
  28. Evidence Illustrated: Cases to Illustrate How All the Rules Work, p.15.
  29. Id.
  30. Fed.R.Evid. 106, Cl.1
  31. Fed.R.Evid. 106, Cl.2.
  32. Evidence Illustrated: Cases to Illustrate How All the Rules Work, pp.16-18.
  33. Fed.R.Evid. 201(b).
  34. Evidence Illustrated: Cases to Illustrate How All the Rules Work, pp. 19-20.
  35. Evidence Illustrated: Cases to Illustrate How All the Rules Work, p. 20.
  36. Law latin, literally "of one's own accord, voluntarily"; refers to instances when a court takes action without motion from either adverse party.
  37. Fed.R.Evid. 201(c) verbatim.
  38. Evidence Illustrated: Cases to Illustrate How All the Rules Work, pp.19-20.
  39. Fed.R.Evid. 201(d) verbatim.
  40. Fed.R.Evid. 301, Cl.2, verbatim.
  41. Id., Cl.3-4.
  42. Evidence Illustrated: Cases to Illustrated How All the Cases Work, pp.21-22.
  43. Id.,pp.22-23.
  44. Fed.R.Evid 302, Cl.2
  45. Id.
  46. Evidence Illustrated: Cases to Illustrated How All the Rules Work, p.24.