Federal Rules of Evidence

Federal Rules of Evidence

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The Federal Rules of Evidence (FRE) is a code
Legal code
A legal code is a body of law written by a governmental body, such as a U.S. state, a Canadian Province or German Bundesland or a municipality...

 of evidence law governing the admission of facts by which parties in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 federal court system
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...

 may prove their cases, both civil and criminal. The Rules were enacted in 1975, with subsequent amendments.

The Rules were the product of protracted academic, legislative, and judicial examination before being formally promulgated in 1975. U.S. states are free to adopt or maintain evidence rules different from the Federal Rules, but a substantial majority have adopted codes in whole or part based on the FRE. Because they govern the initial presentation of evidence in a trial, the Rules primarily serve to govern federal trial courts rather than appellate courts, as appellate courts, due to their function and scope address very few questions touching upon the facts of a case. Appellate courts do, however, monitor the application of the rules to ensure consistent application and coherent development of the federal common law of evidence. The Rules are also a focus of most Evidence courses in American law schools
Legal education in the United States
Legal education in the United States generally refers to the education of lawyers before entry into practice. - The first law...



The law of evidence governs the proof of facts and the inferences flowing from such facts during the trial of civil and criminal lawsuits. Before the twentieth century, evidence law was largely the product of decisional law. During the twentieth century, projects such as the California Evidence Code and the Uniform Rules of Evidence encouraged the codification of those common-law evidence rules. In 1965, Chief Justice Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...

 appointed an advisory committee of fifteen to draft the new rules. The committee was composed of lawyers and legal scholars from across the country.

The Federal Rules of Evidence began as rules proposed pursuant to a statutory grant of authority, the Rules Enabling Act
Rules Enabling Act
The Rules Enabling Act is an Act of Congress that gave the judicial branch the power to promulgate the Federal Rules of Civil Procedure. Amendments to the Act allowed for the creation of the Federal Rules of Criminal Procedure and other procedural court rules...

, but were eventually passed as statutory laws.

The United States Supreme Court circulated drafts of the FRE in 1969, 1971 and 1972, but Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

 then exercised its power under the Rules Enabling Act
Rules Enabling Act
The Rules Enabling Act is an Act of Congress that gave the judicial branch the power to promulgate the Federal Rules of Civil Procedure. Amendments to the Act allowed for the creation of the Federal Rules of Criminal Procedure and other procedural court rules...

 to suspend implementation of the FRE until it could study them further. After a long delay blamed on the Watergate scandal
Watergate scandal
The Watergate scandal was a political scandal during the 1970s in the United States resulting from the break-in of the Democratic National Committee headquarters at the Watergate office complex in Washington, D.C., and the Nixon administration's attempted cover-up of its involvement...

, the FRE became federal law
Federal law
Federal law is the body of law created by the federal government of a country. A federal government is formed when a group of political units, such as states or provinces join together in a federation, surrendering their individual sovereignty and many powers to the central government while...

 on January 2, 1975, when the President signed the Act to Establish Rules of Evidence for Certain Courts and Proceedings, , .; see also Legislative History on the Enactment of the FRE (with links to key documents).

The law was enacted only after Congress made a series of modifications to the proposed rules. Much of the debate on the Rules stemmed from concerns that came to lawmakers' attention due to the Watergate scandal, particularly questions of privilege. Some of the most prominent congressional amendments when Congress adopted the rules included:
  • Prior Inconsistent Statement - Rule 801(d)(1)(A): Congress amended the proposed rule so that the "rule now requires that the prior inconsistent statement be given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. The rule as adopted covers statements before a grand jury."

  • Privileges - Rule 501: Although the original proposal included thirteen rules providing for various privileges, Congress struck all of them. To guide privileges in the federal courts, Congress adopted Rule 501. The rule specified that except as otherwise provided by Act of Congress or by other federal rules, privileges in the federal courts would be "governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Rule 501 meant that the entire purpose of the FRE (to provide clarity and supersede prior case law) was defeated in the specific context of the law of privileges. Thus, to this day, attorneys practicing in U.S. federal courts must carefully research current case law to determine the contours of available privileges. In contrast, the California Evidence Code, from which the original proposal had been drawn, had expressly codified all evidentiary privileges, so that any further privileges in state courts would have to come from the California State Legislature
    California State Legislature
    The California State Legislature is the state legislature of the U.S. state of California. It is a bicameral body consisting of the lower house, the California State Assembly, with 80 members, and the upper house, the California State Senate, with 40 members...


  • Impeachment by Conviction - Rule 609(a): The rule specified when a party could use evidence of a prior conviction to impeach a witness. Congress reformed most of Rule 609(a), to specify when a court could exercise discretion to admit evidence of a conviction which was a felony, but that the court must admit the prior conviction if the crime was one involving "dishonesty or false statement."

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

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


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

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

Structure of the Rules

There are 67 individually numbered rules, divided among 11 articles:
  1. General Provisions
  2. Judicial Notice
  3. Presumptions in Civil Actions and Proceedings
  4. Relevancy and Its Limits
  5. Privileges
  6. Witnesses
  7. Opinions and Expert Testimony
  8. Hearsay
  9. Authentication and Identification
  10. Contents of Writings, Recordings, and Photographs
  11. Miscellaneous Rules

The Rules embody some very common concepts, and lawyers frequently refer to those concepts by the rule number. The most important concept the balancing of relevance against other competing interests is embodied in Rule 403.
The basic rule regarding inferences the jury may draw from particular testimony is Rule 404.

  1. Character evidence generally.

    Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

    1. Character of accused - In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution.

    2. Character of alleged victim - In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.

    3. Character of witness - Evidence of the character of a witness, as provided in rules 607, 608, and 609.

  2. Other crimes, wrongs, or acts.

    Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

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

On the other hand, the law of privileges remains a creature of federal common law under the Rules, rather than the subject of judicial interpretation of the text of the rule. Just as the Uniform Rules of Evidence had, the advisory committee draft of the rules that the Supreme Court formally transmitted to Congress codified nine evidentiary privileges required reports, attorney-client, psychotherapist-patient, husband-wife, communications to clergymen, political vote, trade secrets, official secrets, and identity of informer. When debate over the privileges included in the proposed Rules threatened to delay adoption of the Rules in their entirety, Congress replaced the proposed codified privileges with what became Rule 501.
The scope of the privileges under the Rules thus is the subject of federal common law, except in those situations where state law supplies the rule
Erie doctrine
In United States law, the Erie doctrine is a fundamental legal doctrine of civil procedure mandating that a federal court in diversity jurisdiction must apply state substantive law....

 to be applied.
Accordingly, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 is ultimately responsible for determining which privileges exist. In the years since the adoption of the Rules, the Court has both expressly adopted a privilege, in Jaffee v. Redmond
Jaffee v. Redmond
In Jaffee v. Redmond, , the Supreme Court of the United States created a psychotherapist-patient privilege in the Federal Rules of Evidence.-Facts:...

, , and expressly declined to adopt a privilege, in University of Pennsylvania v. EEOC
University of Pennsylvania v. EEOC
University of Pennsylvania v. Equal Employment Opportunity Commission, , is a United States Supreme Court decision in which the Court held that neither common law evidentiary privilege, nor First Amendment academic freedom protects peer review materials that are relevant to charges of racial or...

, .

Restyling the Federal Rules of Evidence

For the past several years, an effort has been underway to "restyle" the Federal Rules of Evidence. The restyling would not make substantive changes to the rules. On April 26, 2011, the U.S. Supreme Court approved restyled amendments to the Federal Rules of Evidence. Under the Rules Enabling Act, the restyling amendments will take effect on December 1, 2011, unless Congress otherwise acts. For more information.

External links