federal+rules+of+evidence

FEDERAL RULES OF EVIDENCE DECEMBER 1, 2008 UN UM E PLURIBUS Printed for the use of THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES 110TH CONGRESS " COMMITTEE PRINT ! No. 8 2nd Session FEDERAL RULES OF EVIDENCE DECEMBER 1, 2008 UN UM E PLURIBUS Printed for the use of THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 2008 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 COMMITTEE ON THE JUDICIARY ONE HUNDRED TENTH CONGRESS JOHN CONYERS, JR., Michigan, Chairman HOWARD L. BERMAN, California RICK BOUCHER, Virginia JERROLD NADLER, New York ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia MELVIN L. WATT, North Carolina ZOE LOFGREN, California SHEILA JACKSON LEE, Texas MAXINE WATERS, California WILLIAM D. DELAHUNT, Massachusetts ROBERT WEXLER, Florida LINDA T. SA´NCHEZ, California STEVE COHEN, Tennessee HANK JOHNSON, Georgia BETTY SUTTON, Ohio LUIS V. GUTIERREZ, Illinois BRAD SHERMAN, California TAMMY BALDWIN, Wisconsin ANTHONY D. WEINER, New York ADAM B. SCHIFF, California ARTUR DAVIS, Alabama DEBBIE WASSERMAN SCHULTZ, Florida KEITH ELLISON, Minnesota LAMAR SMITH, Texas F. JAMES SENSENBRENNER, JR., Wisconsin HOWARD COBLE, North Carolina ELTON GALLEGLY, California BOB GOODLATTE, Virginia STEVE CHABOT, Ohio DANIEL E. LUNGREN, California CHRIS CANNON, Utah RIC KELLER, Florida DARRELL ISSA, California MIKE PENCE, Indiana J. RANDY FORBES, Virginia STEVE KING, Iowa TOM FEENEY, Florida TRENT FRANKS, Arizona LOUIE GOHMERT, Texas JIM JORDAN, Ohio PERRY APELBAUM, Staff Director and Chief Counsel SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel (II) FOREWORD This document contains the Federal Rules of Evidence, as amended to December 1, 2008. 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 Ad- visory Committee on the Federal Rules of Evidence, Judicial Con- ference of the United States, prepared notes explaining the pur- pose 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. Chairman, Committee on the Judiciary. DECEMBER 1, 2008. (III) (V) AUTHORITY FOR PROMULGATION OF RULES TITLE 28, UNITED STATES CODE § 2072. Rules of procedure and evidence; power to prescribe (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 magistrate judges thereof) and courts of appeals. (b) Such rules shall not abridge, enlarge or modify any sub- stantive 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, 321, Dec. 1, 1990, 104 Stat. 5115, 5117.) § 2073. Rules of procedure and evidence; method of prescribing (a)(1) The Judicial Conference shall prescribe and publish the procedures for the consideration of proposed rules under this sec- tion. (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 profes- sional bar, and trial and appellate judges. (b) The Judicial Conference shall authorize the appointment of a standing committee on rules of practice, procedure, and evi- dence 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 meet- ing 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 por- tion of such minutes, relating to a closed meeting and made avail- able to the public, may contain such deletions as may be nec- essary 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 minor- ity 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.) § 2074. Rules of procedure and evidence; submission to Congress; effective date (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 pro- ceedings 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 evi- dentiary 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.) § 2075. Bankruptcy rules 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. The bankruptcy rules promulgated under this section shall pre- scribe a form for the statement required under section 707(b)(2)(C) of title 11 and may provide general rules on the content of such statement. (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; Pub. L. 109–8, title XII, § 1232, Apr. 20, 2005, 119 Stat. 202.) (VII) 1LEGISLATIVE 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. HISTORICAL NOTE The Supreme Court prescribes Federal Rules of Evidence pursu- ant to section 2072 of Title 28, United States Code, as enacted by Title IV ‘‘Rules Enabling Act’’ of Pub. L. 100–702 (approved No- vember 19, 1988, 102 Stat. 4648), effective December 1, 1988, and sec- tion 2075 of Title 28. Pursuant to section 2074 of Title 28, the Su- preme Court transmits to Congress (not later than May 1 of the year in which a rule prescribed under section 2072 is to become ef- fective) a copy of the proposed rule. The rule takes effect no ear- lier 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 Jus- tice 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 VIII HISTORICAL NOTE Code’’ for ‘‘the Bankruptcy Act’’, effective October 1, 1979, pursu- ant 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,’’ im- mediately 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 Pub- lic 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, ef- fective 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 inter- vening 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 Jus- tice on the same day (493 U.S. 1175; Cong. Rec., vol. 136, pt. 1, p. IX HISTORICAL NOTE 662, Exec. Comm. 2370; H. Doc. 101–142), and became effective De- cember 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 Jus- tice 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 add- ing Rules 413 to 415, with provisions in section 320935(b)–(e) of Pub- lic 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 rec- ommendations submitted or provide otherwise by law. Accord- ingly, 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, pt. 6, p. 8151, Ex. Comm. 8996 to Ex. Comm. 8998; H. Doc. 105–268), and became ef- fective 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, pt. 5, p. 6328, 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. 1097; Cong. Rec., vol. 149, pt. 6, p. 7689, Ex. Comm. 1494; H. Doc. 108–57), and became effective December 1, 2003. The amendment affected Rule 608. X HISTORICAL NOTE Additional amendments were adopted by the Court by order dated April 12, 2006, transmitted to Congress by the Chief Justice on the same day (547 U.S. 1281; Cong. Rec., vol. 152, p. H2179, Daily Issue, Ex. Comm. 7320; H. Doc. 109–108), and became effective De- cember 1, 2006. The amendments affected Rules 404, 408, 606, and 609. Section 1 of Public Law 110–322 (approved September 19, 2008, 122 Stat. 3537) added Rule 502 and inserted item 502 in the Table of Contents. The amendments apply in all proceedings commenced after September 19, 2008, and, insofar as is just and practicable, in all proceedings pending on that date. Committee Notes Committee Notes prepared by the Committee on Rules of Prac- tice and Procedure and the Advisory Committee on the Federal Rules of Evidence, Judicial Conference of the United States, ex- plaining the purpose and intent of the amendments are set out in the Appendix to Title 28, United States Code, following the par- ticular rule to which they relate. In addition, the notes are set out in the House documents listed above. (XI) TABLE OF CONTENTS Page Foreword .............................................................................................................. III Authority for promulgation of rules .................................................................... V Historical note ..................................................................................................... VII RULES Article I. General Provisions: Rule 101. Scope ....................................................