Case Law Divergence from the

Federal Rules of Evidence

daniel j. capr a

Reed Professor of Law

Fordham University School of Law

feder al judicia l center



This publication was undertaken in furtherance of the Federal Judicial Center’s statutory

mission to conduct and stimulate research and development for the improvement of judicial administration. The views expressed are those of the author and not necessarily those

of the Federal Judicial Center.
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iii

Contents

Introduction, 1

Examples of Case Law In Conflict with the Text of the Rule, the

Committee Note, or Both, 3

1. Rule 106, 3

2. Rule 403, 4

3. Rule 404(a), 4

4. Rule 407, 5

5. Rule 601, 6

6. Rule 607, 6

7. Rule 608(b), 7

8. Rule 613(b), 7

9. Rule 704(b), 8

10. Rule 801(c) (Implied Assertions), 9

11. Rule 801 Committee Note on Confrontation, 9

12. Rule 803(4), 10

13. Rule 803(5), 11

14. Rule 803(6), 11

15. Rule 803(8)(B), 12

16. Rule 803(8)(B) and (C), 12

17. Rule 804(b)(1), 13

18. Rule 804(b)(3), 14

19. Rule 805, 14

20. Rule 806, 15

21. Rule 807, 15

Examples of Case Law Development Where the Rule and Committee

Note Are Silent, 17

1. Rule 103, 17

2. Rule 104(a), 18

3. Rule 301, 19

4. Rule 404(b), 20

 5. Rule 410, 21

6. Article VI, 22

7. Rule 615, 23

8. Rule 801(d)(1)(B), 23

9. Rule 803(3), 24

10. Rule 803(18), 25

11. Rule 1101, 25
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1

Introduction

Assume that a lawyer in federal court is trying to determine whether a

piece of evidence will be admissible at trial—for example, the lawyer

wants to know whether a videotape can be admitted as a learned treatise.

Obviously, the best place to start is with the text of the Federal Rules of

Evidence. But if the lawyer thinks that the text of a particular rule plainly

answers the question of admissibility, or simply leaves the question open

for argument, that lawyer will often be wrong. That is because the case

law has diverged from the text of the Federal Rules on many important

points. Thus, in our example, the Rule admitting learned treatises does

not on its face permit introduction of videotapes, and yet such tapes

have been admitted under the case law.

The Advisory Committee on Evidence Rules, which this author currently serves as Reporter, has expressed concern that the divergence between case law and the text of the Rule might create a trap for the unwary. See generally Becker & Orenstein, The Federal Rules of Evidence

After Sixteen Years—The Effect of “Plain Meaning” Jurisprudence, the Need

for an Advisory Committee on the Rules of Evidence, and Suggestions for

Selective Revision of the Rules, 60 Geo. Wash. L. Rev. 857, 868 (1992) (noting the need to “resolve discrepancies between the plain text of the Federal Rules and the generally shared interpretation of the Rules deriving

from preexisting common law traditions”). One way to correct this divergence might be to propose an amendment to the text of any Rule

subject to divergent case law. But the Advisory Committee is acutely aware

of the costs of amending an evidence rule—amendments can lead to the

disruption of settled expectations, and may create further problems of

interpretation and divergence.

The Advisory Committee resolved to take a less drastic course—a

course that would not require an amendment of any rules and yet would

highlight for lawyers and judges the existence of divergent case law. The

committee directed the Reporter to prepare this report in an effort to

increase the awareness of counsel practicing in federal courts, as well as

judges, about the possibility that case law has diverged from the text of

some of the Federal Rules of Evidence. This divergence comes in two

forms: (1) where the case law (defined as case law in at least one circuit)

is flatly inconsistent with the text of the Rule, the Committee Note explaining the text, or both; and (2) where the case law has provided sig-
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Case Law Divergence from the Federal Rules of Evidence

nificant development on a point that is not addressed by either the text

of the Rule or the Committee Note.

This report highlights the major instances in which case law has diverged from an applicable Rule. Before proceeding to these illustrations,

it is important to stress several qualifications on the scope of this report.

First, there is no intent to imply that any of the case law discussed herein

is incorrect or “wrongly decided.” The goal of this report is to point out

the case law divergence from the Federal Rules of Evidence, without commenting on the merits of that divergence. Indeed, commentators have

opined that much of the divergent case law is sensible and well decided.

See, e.g., Jonakait, Text, Texts, or Ad Hoc Determinations: Interpretation of

the Federal Rules of Evidence, 71 Ind. L.J. 551, 571 (1996) (“Sometimes

we must look beyond the words of the Rules to understand evidentiary

doctrine. We must do so when the Rules are not definitive or ambiguous

. . . but sometimes even when the text is clear.”).

Second, there is no intent to imply that any of the Rules discussed

herein are problematic or need to be amended. The fact that the case law

diverges from the Rule might be relevant to the need for an amendment,

but it is certainly not dispositive. Whether a particular Rule should be

amended is a complex question that is well beyond the scope of this report.

Third, there is no attempt to be comprehensive in the treatment of

the case law construing the Evidence Rules discussed herein. Divergent

case law is defined here as case law in at least one circuit that has diverged

from the text of the particular Rule. This report does not purport to

provide a treatise-like discussion of all the pertinent case law, from all

the circuits, construing a particular Rule. The goal of this report is to

raise “red flags” with lawyers and judges, by providing basic information

about areas in which case law can be found that diverges from the text of

the Federal Rules of Evidence.
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Case Law Divergence from the Federal Rules of Evidence

Examples of Case Law In Conflict with the Text

of the Rule, the Committee Note, or Both

1. Rule 106

Rule 106 sets forth a rule of completeness, providing that when a party

introduces a writing or recorded statement, the adversary 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.” Rule 106 by its terms permits the adversary to introduce completing statements only when the proponent introduces a written or recorded statement. The language of the Rule does not on its face

permit completing evidence when the proponent introduces an oral statement, such as the inculpatory parts of a criminal defendant’s oral confession.

Some courts have found, however, that Rule 106, or at least the principle of completeness embodied therein, requires admission of omitted

portions of an oral statement when necessary to correct a misimpression.

See United States v. Tarantino, 846 F.2d 1384 (D.C. Cir. 1988) (prior oral

statements of a government witness were properly offered on redirect

examination, since the defendant had used portions of the statements in

cross-examination and the omitted portions placed the statements in

context). See also the discussion in United States v. Branch, 91 F.3d 699

(5th Cir. 1996) (noting the case law permitting criminal defendants to

offer omitted parts of statements they make to law enforcement officers

that provide exculpatory information). Compare United States v. Harvey,

914 F.2d 966 (7th Cir. 1990) (Rule 106 does not apply to oral statements).

Moreover, some courts have held that Rule 106 can operate as a de

facto hearsay exception when the opponent opens the door and creates a

misimpression by offering only part of a statement. In other words, completing evidence has been found admissible under Rule 106 even if it

would otherwise be hearsay. See United States v. Sutton, 801 F.2d 1346,

1369 (D.C. Cir. 1986) (“Rule 106 can adequately fulfill its function only

by permitting the admission of some otherwise inadmissible evidence

when the court finds in fairness that that proffered evidence should be

considered contemporaneously”). See also C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5078, at 376 (supporting this approach). Such a reading of the Rule is not apparent from the text or Committee Note. See United States v. Wilkerson, 84 F.3d 692 (4th Cir. 1996)
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Case Law Divergence from the Federal Rules of Evidence

(interpreting Rule 106 as purely a timing device, not as a rule permitting

the admission of otherwise inadmissible evidence).

2. Rule 403

Rule 403 provides that a trial judge may exclude proffered evidence 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.” Of the negative factors listed that would support exclusion,

only one refers to the jury directly—the danger of “misleading the jury.”

This seems to indicate that other negative factors mentioned in the Rule,

specifically the danger of unfair prejudice and confusion of the issues,

must be taken into account in a bench trial. Yet courts have held to the

contrary, reasoning that unfair prejudice and confusing evidence will

not have the same negative impact on the judge as they would have on

the jury. See, e.g., Schultz v. Butcher, 24 F.3d 626 (4th Cir. 1994) (trial

court erred in excluding evidence in a bench trial on the ground of its

prejudicial effect); Gulf States Utils. v. Ecodyne Corp., 635 F.2d 517 (5th

Cir. 1981) (the portion of Rule 403 referring to prejudicial effect and

confusing evidence “has no logical application in bench trials”).

3. Rule 404(a)

Rule 404(a) states that no party is permitted in the first instance to introduce character evidence to prove action in accordance with character,

except for the “accused”—that is, only the “accused” can open the door

to circumstantial use of character evidence. Thus, the Rule seems explicit in prohibiting the circumstantial use of character evidence in civil

cases. The Committee Note confirms this exclusionary principle.

Yet some courts have permitted civil defendants to use character evidence circumstantially “when the central issue in a civil case is by its

nature criminal.” Palmquist v. Selvik, 111 F.3d 1332, 1342 (7th Cir. 1997)

(assuming that character evidence could be admissible in certain civil

cases); Perrin v. Anderson, 784 F.2d 1040 (10th Cir. 1986) (police officers

charged with excessive force are permitted to prove the decedent’s violent character).
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Case Law Divergence from the Federal Rules of Evidence

4. Rule 407

Rule 407 prohibits the admission of actions taken after an injury or harm

which, if taken previously, would have made the injury or harm less likely

to occur, if the remedial action is offered to prove negligence, culpable

conduct, product defect, design defect, or failure to warn. The Rule by its

terms appears to preclude evidence of any action by anyone that would

have made the injury or harm less likely to occur. Courts have held, however, that subsequent remedial measures are not excluded by Rule 407 if

the measure is taken by someone other than the defendant, that is, if it is

a “third party repair.” See, e.g., TLT-Babcock, Inc. v. Emerson Elec. Co., 33

F.3d 397 (4th Cir. 1994) (design change not excluded by Rule 407 where

the change was made by an entity that was not a party to the case); Dixon

v. International Harvester Co., 754 F.2d 573 (5th Cir. 1985) (repair by

tractor owner after an accident not excluded when offered against tractor manufacturer).

Also, the Rule states that “impeachment” is a proper purpose for admitting subsequent remedial measures. Taken literally, this would mean

that a plaintiff in a product liability case could offer proof of a subsequent remedial measure to “impeach” a defense witness’s assertion that

the product used by the plaintiff was safely designed. Yet courts have

generally limited the use of subsequent remedial measures when offered

for the purposes of impeachment by way of contradiction. The fear is

that this exception would swallow the rule of exclusion. See, e.g., Harrison

v. Sears, Roebuck & Co., 981 F.2d 25 (1st Cir. 1992) (a desire merely to

undercut an expert’s credibility cannot be sufficient to trigger the impeachment exception to Rule 407, or else the exception would swallow

the rule of exclusion); Kelly v. Crown Equip. Co., 970 F.2d 1273 (3d Cir.

1992) (subsequent remedial measure cannot be offered for simple contradiction of expert’s statement that a design was safe).

Thus, the “impeachment” permitted by the Rule has been limited to

cases in which defense witnesses have made extravagant claims of safety.

See Wood v. Morbark Indus., 70 F.3d 1202 (11th Cir. 1995) (post-accident

design change admissible for impeachment where defense witness testified that the original design was the safest possible design); Muzyka v.

Remington Arms Co., 774 F.2d 1309 (5th Cir. 1985) (design change should

have been admitted for impeachment where defense witnesses testified

that the product was the best and safest product of its kind).
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Case Law Divergence from the Federal Rules of Evidence

5. Rule 601

Rule 601 essentially states that all questions that had been treated previously as matters of competency are now matters of credibility for the

fact finder. The Committee Note, elaborating on the Rule, indicates an

intent to prohibit a trial judge from excluding a witness on grounds of

incompetence. Yet courts have excluded witnesses who have been found

incapable of testifying in a competent fashion. See, e.g., United States v.

Gates, 10 F.3d 765, 766 (11th Cir. 1993) (“Notwithstanding Rule 601, a

court has the power to rule that a witness is incapable of testifying, and

in an appropriate case it has the duty to hold a hearing to determine that

issue.”); United States v. Gutman, 725 F.2d 417, 420 (7th Cir. 1984) (trial

court retains the power, and sometimes the duty, to hold a hearing “to

determine whether a witness should not be allowed to testify because

insanity has made him incapable of testifying in a competent fashion.”).

6. Rule 607

Rule 607 states categorically that a party can impeach any witness it calls.

On its face, the Rule permits the following scenario:

1. In a criminal case, a witness would testify at trial that the defendant

was not at the scene of the crime, yet the witness stated previously

to a police officer that the defendant committed the crime.

2. The prior statement to the police officer could not be admitted as

substantive evidence because it is hearsay.

3. The prosecutor calls the witness, knowing that the witness will give

testimony favorable to the defendant, and then “impeaches” the

witness with the prior statement to the police officer, on the ground

that it is inconsistent with the witness’s in-court testimony.

Thus, Rule 607 by its terms permits the prosecutor to proffer prior

inconsistent statements, not made under oath (and therefore not admissible for their truth under Rule 801(d)(1)(A)), in the guise of impeachment.

Despite the affirmative and permissive language of the Rule, the courts

have held that a prosecutor cannot call a witness solely to impeach that

witness, because to allow this practice would undermine the hearsay rule.

See, e.g., United States v. Hogan, 763 F.2d 697, 702 (5th Cir. 1985) (“The

prosecution, however, may not call a witness it knows to be hostile for

the primary purpose of eliciting otherwise inadmissible impeachment
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Case Law Divergence from the Federal Rules of Evidence

testimony, for such a scheme merely serves as a subterfuge to avoid the

hearsay rule. The danger in this procedure is obvious.”); United States v.

Morlang, 531 F.2d 183 (4th Cir. 1975) (conviction reversed on the ground

that the government should not have been permitted to call a witness for

no other purpose than to impeach him). See generally Jonakait, The Supreme Court, Plain Meaning, and the Changed Rules of Evidence, 68 Tex.

L. Rev. 745 (1990) (noting this and other situations in which courts have

felt compelled to diverge from the text of an Evidence Rule in order to

reach a just result).

7. Rule 608(b)

Rule 608(b) states that specific instances of the conduct of a witness, “for

the purpose of attacking or supporting the witness’ credibility . . . may

not be proved by extrinsic evidence.” (Emphasis added.) Read literally,

“the first sentence of (b) could bar extrinsic evidence for bias, competency and contradiction impeachment, since they too deal with credibility.” American Bar Association Section on Litigation, Emerging Problems

Under the Federal Rules of Evidence 161 (3d ed. 1998).

Yet courts have held that the Rule 608(b) extrinsic evidence ban is not

applicable unless the sole reason for the impeachment is to attack the

witness’s character for veracity. See, e.g., United States v. Winchenbach,

197 F.3d 548 (1st Cir. 1999) (impeachment with proof of prior inconsistent statement is governed by the balancing process of Rule 403 rather

than the absolute exclusion of Rule 608(b)); United States v. Tarantino,

846 F.2d 1384, 1409 (D.C. Cir. 1988) (admissibility of extrinsic evidence

offered to contradict a witness is governed by Rules 402 and 403, not

Rule 608(b)); United States v. Lindemann, 85 F.3d 1232 (7th Cir. 1996)

(admissibility of extrinsic evidence of bias is governed by Rules 402 and

403, not Rule 608(b)).

8. Rule 613(b)

Rule 613(b) and the Committee Note both indicate that it is not necessary to give a witness an opportunity to examine a prior inconsistent

statement before that statement is admissible to impeach the witness. All

that is necessary is that the witness be given an opportunity at some point

in the trial to explain or deny the statement. The Rule thus rejects the

common-law rule from Queen Caroline’s case, under which the propo-
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Case Law Divergence from the Federal Rules of Evidence

nent was required to lay a foundation for the prior inconsistent statement at the time the witness testified.

Despite the language of the Rule and Note, however, some courts have

reverted to the common-law rule. See, e.g., United States v. Sutton, 41

F.3d 1257 (8th Cir. 1994) (trial judge properly excluded testimony as to

inconsistent statements by a prosecution witness on the ground that the

witness had not been given an opportunity to explain or deny the prior

statement while cross-examined by defense counsel); United States v.

Marks, 816 F.2d 1207, 1211 (7th Cir. 1987) (trial judge is entitled, despite

the language of Rule 613(b), “to conclude that in particular circumstances

the older approach should be used in order to avoid confusing witnesses

and juries”).

9. Rule 704(b)

Rule 704(b) seems to prohibit all expert witnesses from testifying that a

criminal defendant either did or did not have the requisite mental state

to commit the crime charged. It states that “[n]o expert witness . . . 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.”

But some courts have held (and others have implied) that the Rule is

applicable only to mental health experts, and therefore does not prohibit

intent-based testimony from law enforcement personnel, such as narcotics agents. See, e.g., United States v. Gastiaburo, 16 F.3d 582 (4th Cir.

1994) (stating that Rule 704(b) does not apply to the testimony of an

expert law enforcement agent); United States v. Lipscomb, 14 F.3d 1236

(7th Cir. 1994) (expressing sympathy with such a position, but finding it

unnecessary to decide the matter).

Other courts, while technically applying the Rule 704(b) limitation to

all expert witnesses, have applied it in such a way as to nullify its impact—permitting, for example, an expert to opine as to the mental state

of a hypothetical person whose fact situation mirrors the fact situation

at issue. See, e.g., United States v. Williams, 980 F.2d 1463 (D.C. Cir. 1992)

(permitting a law enforcement agent to testify that a hypothetical person

carrying Ziploc bags, each containing small amounts of drugs, was intending to distribute them; the hypothetical matched the facts of the

case).
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Case Law Divergence from the Federal Rules of Evidence

10. Rule 801(c) (Implied Assertions)

Rule 801(c) defines hearsay as an out-of-court statement “offered in evidence to prove the truth of the matter asserted.” The Committee Note

states that “verbal conduct which is assertive but offered as a basis for

inferring something other than the matter asserted” is excluded from the

definition of hearsay “by the language of subdivision (c).” This would

mean that a statement would be hearsay only if it were offered to prove

the truth of the express assertion in the statement; offering it to prove

the truth of any implied assertion would escape hearsay proscription.

So, for example, the statement “It is raining cats and dogs” would be

admissible to prove it is raining; the statement would not be offered to

prove the express assertion that cats and dogs are falling from the sky.

This highly constricted definition of hearsay has generally been rejected by the courts. The courts generally state that statements are hearsay if (1) they are offered to prove the truth of a matter implied in the

statement and (2) the speaker intended to communicate that implication. See, e.g., United States v. Reynolds, 715 F.2d 99 (3d Cir. 1983) (rejecting the government’s suggestion that only a statement’s express assertion should be considered in deciding whether it constitutes hearsay);

Lyle v. Koehler, 720 F.2d 426, 433 (6th Cir. 1983) (concluding that letters

were hearsay because “the inferences they necessarily invite form an integral part of the letters”; the reference to “matters asserted” in Rule 801(c)

covers both express and implied assertions); United States v. Jackson, 88

F.3d 845, 848 (10th Cir. 1996) (stating that the important question under Rule 801(c) is whether the assertion, express or implied, “is intended”).

See also Milich, Re-examining Hearsay Under the Federal Rules: Some

Method for the Madness, 39 Kan. L. Rev. 893 (1991) (arguing for an intent-based test in determining whether implied assertions are hearsay).

11. Rule 801 Committee Note on Confrontation

The original Committee Note to Rule 801 includes an extensive discussion of the law of confrontation as it existed at the time the Rules were

proposed. This Note is quite outdated, since the Supreme Court has substantially developed and revised its interpretation of the Confrontation

Clause since that time. For example, the Committee Note draws a fairly

sharp distinction between the hearsay exceptions and the Confrontation

Clause, but the recent jurisprudence leads to the conclusion that state-
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Case Law Divergence from the Federal Rules of Evidence

ments fitting within the Federal Rules of Evidence hearsay exceptions

will ordinarily satisfy the Confrontation Clause. Virtually all of the major Federal Rules exceptions, except the residual exception, have been

found by federal courts to be “firmly rooted,” which means that statements falling within these exceptions automatically satisfy the Confrontation Clause. And as to the residual exception, the reliability requirements of that exception have been found congruent with those imposed

by the Confrontation Clause. See generally Ohio v. Roberts, 448 U.S. 56

(1980); Idaho v. Wright, 497 U.S. 805 (1990); White v. Illinois, 502 U.S.

346 (1992). See the discussion of this case law in S. Saltzburg, M. Martin

& D. Capra, Federal Rules of Evidence Manual 1702–05, 1852–54 (7th ed.

1998).

12. Rule 803(4)

Rule 803(4) provides a hearsay exception for statements made for purposes of treatment or diagnosis when the statements deal with the “cause

or external source” of the medical condition. The exception does not, by

its terms, provide a hearsay exception for statements attributing fault.

The Committee Note states that statements of fault “would not ordinarily qualify” under the exception, and distinguishes the statement “I

was hit by a car” (admissible when made to medical personnel) from the

statement “I was hit by a car that ran a red light” (inadmissible).

Yet in at least some classes of cases, statements attributing fault, when

made to medical personnel, are admitted by the courts under Rule 803(4).

The most common example is a statement from a child victim of sexual

abuse specifically identifying the abuser. See, e.g., United States v. Renville,

779 F.2d 430, 438 (8th Cir. 1985) (child’s statement attributing fault is

admissible under Rule 803(4) “where the physician makes clear to the

victim that the inquiry into the identity of the abuser is important to

diagnosis and treatment, and the victim manifests such an understanding”); United States v. Joe, 8 F.3d 1488, 1494 (10th Cir. 1993) (“[T]he

domestic sexual abuser’s identity is admissible under Rule 803(4) where

the abuser has such an intimate relationship with the victim that the

abuser’s identity becomes reasonably pertinent to the victim’s proper

treatment.”).
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Case Law Divergence from the Federal Rules of Evidence

13. Rule 803(5)

Rule 803(5) provides a hearsay exception for past recollection recorded:

a record “containing a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify

fully and accurately” where the record is “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.” What happens, however, when a

person makes a statement to another person, and that other person is

the one who writes it down? The exception by its terms does not seem to

permit a “two-party voucher” system of proving past recollection recorded, since it states that the record must be shown to have been “made

or adopted by the witness.” Thus, the Rule does not envision that a person with personal knowledge of a matter might make a statement that

was recorded by another, with the record being made admissible by

counsel’s calling both the reporter and the recorder. Despite the language

of the Rule, however, cases can be found that permit two-party vouching

under Rule 803(5). See, e.g., United States v. Williams, 951 F.2d 853 (7th

Cir. 1993) .

14. Rule 803(6)

Rule 803(6) defines a business record as one “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 activity.” This language could

be read as abrogating the common-law requirement that the person transmitting the information to the recorder must have a business duty to do

so. It states only that the transmitting person must have “knowledge,”

not that the person must be reporting within the business structure.

Despite the text of the Rules, the courts have held that all those who

report information included in a business record must be under a business duty to do so—or else the hearsay problem created by the report

coming from an outsider must be satisfied in some other way. See United

States v. Turner, 189 F.3d 712, 719–20 (8th Cir. 1999) (“[W]hen the source

of information and the recorder of that information are not the same

person, the business record contains hearsay upon hearsay. If both the

source and recorder of the information were acting in the regular course

of the organization’s business, however, the hearsay upon hearsay problem may be excused by the business records exception to the rule against
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Case Law Divergence from the Federal Rules of Evidence

hearsay.”); Bemis v. Edwards, 45 F.3d 1369 (9th Cir. 1995) (a 911 call was

not admissible as a business record because the caller was not under any

business duty to report, and the report did not independently satisfy any

hearsay exception); Cameron v. Otto Bock Orthopedic Indus. Inc., 43 F.3d

14 (1st Cir. 1994) (product failure reports submitted to the manufacturer after the plaintiff’s accident were inadmissible; the reports were

submitted by parties who had no business duty to report accurately to

the manufacturer).

15. Rule 803(8)(B)

Rule 803(8)(B) provides a hearsay exception for public reports, but the

Rule specifically excludes from its coverage public reports setting forth

“matters observed by police officers and other law enforcement personnel” if such reports are offered “in criminal cases.” Read literally, the

Rule would not provide a hearsay exception for a forensic report prepared by the police that concluded that the defendant was innocent. Such

a report would be offered by the defendant, but the exclusionary language of Rule 803(8)(B) covers all police reports offered in criminal cases.

Yet some lower courts have refused to be bound by the plain meaning

of the Rule, reasoning that Congress intended to regulate only police

reports that unfairly inculpate a criminal defendant, and that the exception should therefore apply to public reports offered by the accused. See,

e.g., United States v. Smith, 521 F.2d 957 (D.C. Cir. 1975) (despite its exclusionary language, Rule 803(8)(B) should be read in light of Congress’s

intent to exclude police reports only when offered against a criminal defendant). But see United States v. Sharpe, 193 F.3d 852, 868 (5th Cir. 1999)

(the defendant’s reliance on Rule 803(8)(B) to admit an exculpatory police report was “misplaced” because the Rule does not grant admissibility for any such reports offered in criminal cases).

16. Rule 803(8)(B) and (C)

Rule 803(8)(B) and (C) both contain language that appears to exclude

from the hearsay exception all records prepared by law enforcement personnel when such records are offered against a criminal defendant. Read

literally, these provisions would prevent the government from introducing simple tabulations of nonadversarial information. For example, these

subdivisions appear not to grant a hearsay exception for a routine print-
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Case Law Divergence from the Federal Rules of Evidence

out from the Customs Service recording license plates of cars that crossed

the border on a certain day, when offered in a criminal case to prove the

location of a car.

Courts have refused to apply the plain exclusionary language of these

subdivisions literally, however. They reason that the exclusionary language could not have been intended to cover reports that are ministerial

in nature and prepared under nonadversarial circumstances; the language

was designed to regulate only adversarial, evaluative reports (such as crime

scene reports) that carry the risk of fabrication. See, e.g., United States v.

Orozco, 590 F.2d 789 (9th Cir. 1979) (Customs records of border crossings are admissible under Rule 803(8) because they are ministerial and

not prepared under adversarial circumstances); United States v. Grady,

544 F.2d 598 (2d Cir. 1976) (reports concerning firearms’ serial numbers

were admissible because they were records of routine factual matters prepared in nonadversarial circumstances).

17. Rule 804(b)(1)

Rule 804(b)(1) provides a hearsay exception for prior testimony when

offered against a party who either (1) had a similar motive and opportunity to develop the testimony at the time it was given, or (2) had a predecessor in interest with such a similar motive and opportunity at the time

the testimony was given. Some courts have defined the term “predecessor in interest” as anyone who had a similar motive and opportunity to

develop the testimony, at the time it was given, as the opponent would

have at the instant trial; these courts do not require some legal relationship between the prior party and the party against whom the evidence is

now offered. This construction collapses the term “predecessor in interest” with the term “similar motive.” See, e.g., Lloyd v. American Export

Lines, Inc., 580 F.2d 1179 (3d Cir. 1978) (prior testimony properly admitted against plaintiff where prior party had a similar motive to develop the testimony as the plaintiff in the instant case would have were

the declarant to testify at trial; Judge Stern, concurring, states that such

an expansive definition of “predecessor in interest” effectively reads that

term out of the Rule); Horne v. Owens-Corning Fiberglass Corp., 4 F.3d

276 (4th Cir. 1993) (prior testimony from a different case properly admitted against the plaintiff where a party to the prior action, though not

affiliated in any way with the plaintiff, had a similar motive to develop

the testimony).
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Other courts have admitted such evidence not as prior testimony (for

want of a predecessor in interest) but as residual hearsay. See Dartez v.

Fibreboard Corp., 765 F.2d 456 (5th Cir. 1985).

18. Rule 804(b)(3)

Rule 804(b)(3) provides that if a declaration against penal interest is offered to exculpate an accused, it is not admissible under this hearsay exception “unless corroborating circumstances clearly indicate the trustworthiness of the statement.” On its face, the rule does not require a showing of corroborating circumstances for statements offered by the government that inculpate the accused. Yet many courts have required the

government to establish corroborating circumstances for inculpatory

statements offered under Rule 804(b)(3). See, e.g., United States v. Barone,

114 F.3d 1284 (1st Cir. 1997) (imposing a corroborating circumstances

requirement for statements offered by the prosecution under Rule

804(b)(3) while acknowledging that the Rule does not explicitly require

a showing of corroborating circumstances for such statements); United

States v. Garcia, 897 F.2d 1413 (7th Cir. 1990) (requiring a showing of

corroborating circumstances for inculpatory declarations against penal

interest).

Similarly, the corroborating circumstances requirement does not appear to apply when declarations against penal interest are offered in civil

cases, since the requirement covers statements offered to exculpate the

“accused.” At least one court, however, has applied the corroborating circumstances requirement to declarations against penal interest offered in

civil cases. See American Automotive Accessories, Inc. v. Fishman, 175 F.3d

534, 541 (7th Cir. 1999) (reasoning that it is important to have a “unitary

standard” for declarations against penal interest, no matter in what case

and no matter by whom they are offered).

19. Rule 805

Rule 805 states that hearsay within hearsay is not excluded if each part of

the combined statement “conforms with an exception to the hearsay rule.”

However, admissions and certain prior statements of testifying witnesses

are classified by Rule 801(d) as “not hearsay.” Rule 805 could technically

be read to preclude admissibility of multiple hearsay where one level of
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hearsay would be admissible under the Rule 801(d) exemptions, as opposed to an “exception” as is mentioned by Rule 805.

But it has been held that the technical distinction between the Rule

801(d) category of “not hearsay” and the Rule 803, 804, and 807 categories of “hearsay subject to exception” cannot control the application of

Rule 805’s standard for admitting multiple levels of hearsay. See, e.g.,

United States v. Dotson, 821 F.2d 1034, 1035 (5th Cir. 1987) (“For the

purposes of the hearsay-within-hearsay principle expressed in Rule 805,

non-hearsay statements under Rule 801(d) . . . should be considered in

analyzing a multiple-hearsay statement as the equivalent of a level of the

combined statement that conforms with an exception to the hearsay

rule.”).

20. Rule 806

Rule 806 states that a hearsay declarant’s credibility may be attacked “by

any evidence which would be admissible” if the declarant had testified as

a witness. The language raises a problem when the proponent wishes to

attack the declarant by proffering specific bad acts to prove the witness’s

bad character for veracity. Rule 608(b) prohibits extrinsic proof of bad

acts when offered to show the witness’s character for untruthfulness. Rule

806 could therefore be read literally as prohibiting bad acts impeachment of a hearsay declarant, since the only way to introduce such acts

without the witness being there to admit them would be to proffer extrinsic evidence in apparent violation of Rule 608(b).

But courts have stated that extrinsic evidence of a bad act offered to

prove a hearsay declarant’s character for veracity is admissible (subject

to Rule 403). The reasoning is that since the declarant is not available for

cross-examination, extrinsic evidence is “the only means of presenting

such evidence to the jury.” United States v. Friedman, 854 F.2d 535, n.8

(2d Cir. 1988). See the extensive discussion of this problem in Cordray,

Evidence Rule 806 and the Problem of the Nontestifying Declarant, 56 Ohio

State L.J. 495 (1995).

21. Rule 807

Rule 807 provides a “residual exception” to the hearsay rule, granting

admissibility to trustworthy statements that are “not specifically covered

by” other exceptions. There are at least two ways in which the case law
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diverges from the text or Committee Note to Rule 807. First, the Rule

permits the admission of residual hearsay only if that hearsay is “not

specifically covered” by another exception. This might seem to indicate

that hearsay that “nearly misses” one of the established exceptions should

not be admissible as residual hearsay, because it is specifically covered by,

and yet not admissible under, another exception. In fact, however, most

courts have construed the term “not specifically covered” by another hearsay exception to mean “not admissible under” another hearsay exception. See, e.g., United States v. Fernandez, 892 F.2d 976 (11th Cir. 1989)

(grand jury statement is “not specifically covered” by another hearsay

exception because it is not admissible under any such exception). Compare United States v. Dent, 984 F.2d 1453 (7th Cir. 1993) (Easterbrook, J.,

concurring) (arguing that grand jury testimony can never be admissible

as residual hearsay, since such testimony is specifically covered by, though

not admissible under, the hearsay exception for prior testimony).

The second divergence between the case law and the text of the residual exception involves the notice requirement. The Rule states that “a

statement may not be admitted” under this exception unless the proponent gives notice “sufficiently in advance of trial or hearing to provide

the adverse party with a fair opportunity to prepare to meet it.” Most

courts have read the notice requirement far more flexibly than its language seems to indicate. For example, most courts have held that the

notice requirement can be satisfied by providing notice at trial, so long

as the adversary is given sufficient time to prepare. See, e.g., United States

v. Baker, 985 F.2d 1248 (4th Cir. 1993).

Other courts have read a good cause exception into the notice requirement. See, e.g., United States v. Lyon, 567 F.2d 777 (8th Cir. 1977). But see

United States v. Ruffin, 575 F.2d 346 (2d Cir. 1978) (rejecting a good cause

exception as not permitted by the text of the Rule).
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Examples of Case Law Development Where the

Rule and Committee Note Are Silent

1. Rule 103

Rule 103 provides conditions for a party wishing to preserve a claim of

evidentiary error for appeal. It states that a party must make a timely

objection or motion to strike, stating the specific ground of objection if

that ground is not apparent from the context. An amendment to Rule

103, scheduled to take effect on December 1, 2000, further provides that

if the trial 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. But the

Rule does not address the question whether a party can appeal an advance ruling holding evidence admissible if the evidence is not actually

admitted at trial. For example, assume that a criminal defendant moves

in advance of trial to preclude the prosecution from impeaching him

with his prior convictions. Assume further that the trial court rules definitively that the convictions are admissible impeachment evidence. Can

the defendant decide not to testify at trial and then argue on appeal that

the trial court erred in its advance ruling?

While Rule 103 is silent on whether an appeal can be taken from a

ruling holding evidence admissible when the evidence is not eventually

admitted at trial, there is significant case law on this question. The Supreme Court, in Luce v. United States, 469 U.S. 38 (1984), specifically

held that an accused must testify at trial in order to preserve a claim of

error predicated upon a trial court’s decision to admit the accused’s prior

convictions for impeachment. The Luce principle has been extended by

many lower courts to other comparable situations. See United States v.

DiMatteo, 759 F.2d 831 (11th Cir. 1985) (applying Luce where the

defendant’s witness would be impeached with evidence offered under

Rule 608). See also United States v. Goldman, 41 F.3d 785, 788 (1st Cir.

1994) (“Although Luce involved impeachment by conviction under Rule

609, the reasons given by the Supreme Court for requiring the defendant

to testify apply with full force to the kind of Rule 403 and 404 objections

that are advanced by Goldman in this case.”); Palmieri v. DeFaria, 88

F.3d 136 (2d Cir. 1996) (where the plaintiff decided to take an adverse

judgment rather than challenge an advance ruling by putting on evidence at trial, the in limine ruling would not be reviewed on appeal);
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United States v. Ortiz, 857 F.2d 900 (2d Cir. 1988) (where uncharged misconduct is ruled admissible if the defendant pursues a certain defense,

the defendant must actually pursue that defense at trial in order to preserve a claim of error on appeal); United States v. Bond, 87 F.3d 695 (5th

Cir. 1996) (where the trial court rules in limine that the defendant would

waive his Fifth Amendment privilege were he to testify, the defendant

must take the stand and testify in order to challenge that ruling on appeal).

Rule 103 is also silent on whether a party who objects to evidence that

the trial court definitively rules admissible, and who then offers the evidence to “remove the sting” of its anticipated prejudicial effect, thereby

waives the right to appeal the trial court’s ruling. Lower courts had been

in conflict on this question. See, e.g., Judd v. Rodman, 105 F.3d 1339 (11th

Cir. 1997) (an objection made in limine is sufficient to preserve a claim

of error when the movant, as a matter of trial strategy, presents the objectionable evidence herself on direct examination to minimize its prejudicial effect); Gill v. Thomas, 83 F.3d 537, 540 (1st Cir. 1996) (“by offering the misdemeanor evidence himself, Gill waived his opportunity to

object and thus did not preserve the issue for appeal”).

The Supreme Court, in Ohler v. United States, 120 S. Ct. 1851 (2000),

resolved this question by holding that a party who introduces evidence

of a prior conviction on direct examination waives any right to appeal an

in limine ruling holding that the evidence would be admissible at trial.

The Court, in an opinion by Chief Justice Rehnquist, recognized that

Rule 103 was silent on this question. It refused to depart from the general common-law rule that “a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted.”

2. Rule 104(a)

Rule 104(a) states that preliminary questions “concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court . . . .” But the Rule is

silent on who bears the burden of proof on admissibility questions, and

it is also silent on what standard of proof is to be employed.

The courts have developed a significant body of case law to answer

these questions. Most importantly, in Bourjaily v. United States, 483 U.S.

171 (1987), the Court held that the party seeking to admit the evidence—

the proponent—generally has the burden of proving that the admissi-
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Case Law Divergence from the Federal Rules of Evidence

bility requirements set forth in the Federal Rules of Evidence are met.

Furthermore, the Bourjaily Court held that the burden of proving an

admissibility requirement under Rule 104(a) is by a preponderance of

the evidence. The specific holding in Bourjaily was that for a statement

to be admissible under the coconspirator exception to the hearsay rule,

the trial court must find that the prosecution has established by a preponderance of the evidence that the defendant and the hearsay declarant

were members of the same conspiracy.

The reasoning in Bourjaily has been extended to most other questions

of admissibility under the Federal Rules of Evidence. See, e.g., Daubert v.

Merrell Dow Pharmaceuticals, 509 U.S. 79 (1993) (proponent of expert

testimony has the burden of showing that it is more likely than not reliable). So for example, a proponent who proffers a hearsay statement under

the excited utterance exception has the burden of showing it more likely

than not that the declarant was under the influence of a startling event

when he spoke. See Miller v. Keating, 754 F.2d 507 (3d Cir. 1985) (proponent must establish admissibility of an excited utterance by a preponderance of the evidence).

One important exception arises with privileges. Because privilege rules

operate to exclude relevant and reliable evidence, they are not favored.

Therefore, the party seeking to exclude proffered evidence on the ground

that it is privileged bears the burden of showing, by a preponderance of

the evidence, that a privilege applies. See generally United States v. Zolin,

491 U.S. 554 (1989).

3. Rule 301

Rule 301 provides some guidance on the effect of a presumption. The

Rule does not define the term “presumption”; it simply states that unless

otherwise provided, “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 nonpersuasion.” The Rule specifically leaves it to

substantive law to determine when proffered evidence establishes a presumption that a fact exists.

Generally speaking, presumptions are based on one or more of the

following rationales:

1. One party has superior access to proof;
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Case Law Divergence from the Federal Rules of Evidence

2. Social or economic policies warrant a presumption;

3. Experience indicates the high probability of a given conclusion from

a given set of facts;

4. A presumption will promote efficiency and convenience.

So, for example, it has been held that proof that a letter was mailed

establishes a presumption that it was received. Anderson v. United States,

966 F.2d 487 (9th Cir. 1982) (in a taxpayer’s suit for a refund, the government failed to rebut the common-law presumption of receipt that arose

from the taxpayer’s proof of mailing her return).

Rule 301 is also silent on whether a party favored by a presumption is

entitled to a peremptory instruction if the party against whom the presumption operates fails to offer any rebuttal evidence. For example, if a

party proves that he mailed a letter, and the opponent provides no conflicting evidence, is the mailing party entitled to an instruction to the

jury that the letter is to be deemed mailed? Courts have held that such an

instruction must be given upon request. See, e.g., A.C. Aukerman Co. v.

R.L. Chaides Constr. Co., 960 F.2d 1020, 1037 (Fed. Cir. 1992) (where

presumption applies, the presumed fact “must be inferred, absent rebuttal evidence.”). See also C. Mueller & L. Kirkpatrick, Evidence 137 (1st ed.

1995) (“[I]f the basic facts of a presumption are established, the presumption controls decision on the presumed fact unless there is

counterproof that the presumed fact is not so. In jury-tried cases, the

judge gives an appropriate instruction. In bench-tried cases, the judge

must find the presumed fact.”).

4. Rule 404(b)

Rule 404(b) provides that a person’s uncharged acts of misconduct can

be offered to prove something other than a person’s character, such as

intent or motive. Rule 404(b) imposes a notice requirement on the prosecution in criminal cases, which is intended to protect the accused from

unfair surprise; it provides 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.”

What happens if the government gives pretrial notice of its intent to

proffer a prior bad act and then subsequently discovers a different bad
21

Case Law Divergence from the Federal Rules of Evidence

act that it wants to use as well? Or what if the government responds to a

defense request by stating that it does not intend to use Rule 404(b) evidence and then uncovers a bad act committed by the defendant that it

does intend to use? The notice requirement of Rule 404(b) does not state

whether the prosecution has a continuing obligation to notify the defendant if it discovers Rule 404(b) evidence after an initial response to the

defendant’s request.

It has been held, however, that the Rule imposes a continuing obligation of notice. See, e.g., United States v. Barnes, 49 F.3d 1144, 1148 (6th

Cir. 1995) (declaring that Rule 404(b) requires “a continuing obligation

on the government to comply with the notice requirement . . . whenever

it discovers information that meets the previous defense request”; noting that a contrary reading “would force the defense to make numerous,

periodic requests until the trial has been completed—surely a wasteful

procedure.”).

The notice requirement of Rule 404(b) is conditioned on a request by

the accused. The Rule does not state how specific the request must be to

trigger the government’s notice obligation. For example, is an omnibus

motion for discovery sufficient to trigger the notice requirement?

Courts have held that an omnibus motion is not sufficient to trigger

the government’s obligation to notify the defendant under the Rule.

Rather, a request for notification, “at a minimum, must be sufficiently

clear and particular, in an objective sense, fairly to alert the prosecution

that the defense is requesting pretrial notification of the general nature

of any Rule 404(b) evidence the prosecution intends to introduce.”United

States v. Tuesta-Toro, 29 F.3d 771, 774 (1st Cir. 1994) (notice not required

where defense demanded outright pretrial disclosure of statements in

any form, referring to the defendant in any way, without regard to their

admissibility or the government’s intention to introduce them). Compare United States v. Williams, 792 F. Supp. 1120, 1133 (S.D. Ind. 1992)

(notification required in response to detailed request reciting text of Rule

404(b)); United States v. Alex, 791 F. Supp. 723, 728 (N.D. Ill. 1992) (notification required in response to request specifically referencing Rule

404(b)).

 5. Rule 410

Rule 410 provides certain protections to criminal defendants during the

process of plea bargaining. Rule 410 is silent, however, on whether its
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Case Law Divergence from the Federal Rules of Evidence

protections can be waived by a criminal defendant. In United States v.

Mezzanatto, 513 U.S. 196 (1995), during guilty plea negotiations the defendant agreed that he could be impeached with statements made during the negotiations if he ultimately went to trial and testified inconsistently with those statements. The Supreme Court upheld the agreement,

finding that the defendant had knowingly and voluntarily waived his

right to the protection of Rule 410. The Court refused to hold that the

Rule’s silence on the matter meant that its protections could not be waived.

Instead the Court presumed that any statutory right could be waived in

the absence of a specific provision to the contrary, so long as the waiver

was knowing and voluntary.

The facts of Mezzanatto involved a waiver permitting the impeachment use of statements made during guilty plea negotiations. Neither

Mezzanatto nor Rule 410 itself says anything explicitly about whether a

defendant can waive the protections of the Rule so as to provide that the

prosecution can admit his or her statements during plea negotiations as

substantive evidence at trial, that is, as party admissions admissible even

if the defendant does not testify. At least one court has relied on the rationale of Mezzanatto to uphold a waiver of Rule 410 protections that

permitted the government to use the defendant’s statements as substantive evidence in its case-in-chief. See United States v. Burch, 156 F.3d 1315

(D.C. Cir. 1998).

6. Article VI

Article VI governs treatment of testifying witnesses. The Article is silent

about many of the common forms of impeachment, such as bias, contradiction, and mental capacity. There is, of course, a significant amount

of case law dealing with impeachment matters on which Article VI is

silent. Case law generally regulates the forms of impeachment not specifically covered by Article VI by using principles derived from Evidence

Rules 402 and 403—such impeachment is permitted unless the probative value of the impeachment evidence is substantially outweighed by

the risks of prejudice, confusion, and delay. See United States v. Abel, 469

U.S. 45 (1984) (impeachment for bias governed by Rule 403 principles).

See generally S. Saltzburg, M. Martin & D. Capra, Federal Rules of Evidence Manual 939–70, 1139–48; 3 C. Mueller & L. Kirkpatrick, Federal

Evidence 109–207, 327–470 (2d ed. 1994). See also Imwinkelreid, The

Silence Speaks Volumes: A Brief Reflection on the Question of Whether It Is
23

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Necessary To Fill the Seeming Gaps in Article VI of the Federal Rules of

Evidence, Governing the Admissibility of Evidence Logically Relevant to the

Witness’s Credibility, 1998 Univ. Ill. L. Rev. 1013, 1036 (noting that Article VI is silent about most matters of impeachment, but concluding

that “as a general proposition, there is little to be gained and much to be

lost by initiating the process of revising Article VI”).

7. Rule 615

Rule 615 provides that at the request of a party, and with some exceptions, “the court shall order witnesses excluded so that they cannot hear

the testimony of other witnesses, and it may also make the order of its

own motion.” The Rule specifically provides only for exclusion of witnesses from the courtroom. It is silent about whether a trial judge can

order witnesses not to talk to each other outside the courtroom; it says

nothing about a judge’s power to order a potential witness to refrain

from obtaining access to certain information, such as newspaper articles,

that might taint the witness’s testimony.

The courts have held, however, that the trial court retains its common-law power to fashion a more far-reaching sequestration order appropriate to the circumstances of the case. See the extensive discussion

in United States v. Sepulveda, 15 F.3d 1161, 1175 (1st Cir. 1993) (Rule 615

“demarcates a compact procedural heartland, but leaves appreciable room

for judicial innovation beyond the perimeters of that which the rule explicitly requires”). This common-law power includes the discretion to

sequester witnesses before, during, and after their testimony (see Geders

v. United States, 425 U.S. 80 (1976)), and to compel the parties to present

witnesses in a prescribed sequence (see United States v. Machor, 879 F.2d

945, 954 (1st Cir. 1989)). As the court in Sepulveda stated, “Rule 615 neither dictates when and how this case-management power ought to be

used nor mandates any specific extra-courtroom prophylaxis, instead

leaving the regulation of witness conduct outside the courtroom to the

district judge’s discretion.”

8. Rule 801(d)(1)(B)

Rule 801(d)(1)(B) provides that a statement is not excluded as hearsay if

the witness is subject to cross-examination and the statement is “consistent with the declarant’s testimony and is offered to rebut an express or
24

Case Law Divergence from the Federal Rules of Evidence

implied charge of recent fabrication.” The hearsay exemption for prior

consistent statements does not specifically provide that the prior consistent statement must precede the existence of the alleged motive to falsify

in order to be admissible. However, the Supreme Court in Tome v. United

States, 513 U.S. 150 (1995), held that a statement is not admissible under

Rule 801(d)(1)(B) unless it was made before the witness’s alleged motive

to falsify arose.

Rule 801(d)(1)(B) is also silent on whether prior consistent statements

can be admitted independently of the Rule, not for their truth but rather

to rehabilitate the credibility of the witness. The courts have held that a

consistent statement can be probative and admissible for rehabilitation

purposes even if it is not admissible under the hearsay exemption. See,

e.g., United States v. Brennan, 798 F.2d 581, 587 (2d Cir. 1986) (prior

consistent statement was not admissible to rebut a charge of improper

motive, but it was admissible to clarify an apparent inconsistency that

had been brought out by defense counsel on cross-examination: “prior

consistent statements may be admissible for rehabilitation even if not

admissible under Rule 801(d)(1)(B).”). Accord United States v. Parodi,

703 F.2d 768 (4th Cir. 1983).

9. Rule 803(3)

Rule 803(3) provides a hearsay exception for statements of a declarant’s

state of mind. The Rule is silent, however, on whether a declarant’s statement of intent can be used to prove the subsequent conduct of someone

other than the declarant. When the victim says, “I am going to meet Frank

tonight,” is the statement admissible to prove that Frank and the victim

actually met? Or is the statement admissible only to prove the future

conduct of the declarant? The Committee Note refers to the Rule as allowing “evidence of intention as tending to prove the act intended.”

The case law is in conflict. Some courts have refused to admit a statement that the declarant intended to meet with a third party as proof that

they actually did meet. See, e.g., Gual Morales v. Hernandez Vega, 579

F.2d 677 (1st Cir. 1978); United States v. Jenkins, 579 F.2d 840 (4th Cir.

1978) (statements of intent can prove only the declarant’s subsequent

conduct). Other courts hold such statements admissible if the proponent provides corroborating evidence that the meeting took place. See,

e.g., United States v. Delvecchio, 816 F.2d 59 (2d Cir. 1987). See C. Mueller

& L. Kirkpatrick, Evidence 938 (1st ed. 1995) (“Some modern cases take
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Case Law Divergence from the Federal Rules of Evidence

the clearly correct position that the exception in its present form cannot

justify use of statements of intent by themselves as proof of what others

did. And yet a growing number of cases approve use of a statement to

prove what the speaker and another did together if other evidence confirms what the statement suggests the other did.”).

10. Rule 803(18)

Rule 803(18) provides a hearsay exception for “statements contained in

published treatises, periodicals, or pamphlets” if they are “established as

a reliable authority” by the testimony or admission of an expert witness

or by judicial notice. The Rule does not mention whether the learned

treatise exception covers evidence presented in demonstrative form, such

as a chart or film.

But the Second Circuit has upheld the admission of an authoritative

videotape under the learned treatise exception. See Costantino v. Herzog,

203 F.3d 164, 171 (2d Cir. 2000) (reasoning that it is “overly artificial to

say that information that is sufficiently trustworthy to overcome the hearsay bar when presented in a printed learned treatise loses the badge of

trustworthiness when presented in a videotape”).

11. Rule 1101

Rule 1101 states that the Federal Rules of Evidence are generally applicable to all federal proceedings. Rule 1101(d) lists certain proceedings to

which the Rules are inapplicable, including grand jury and bail proceedings. Courts have found that the Federal Rules of Evidence are inapplicable to a number of proceedings that are not specifically mentioned as

exempt in Rule 1101(d). Examples include suppression hearings, proceedings to obtain a temporary restraining order, and proceedings seeking release from psychiatric commitment. See, e.g., United States v. Frazier,

26 F.3d 110 (11th Cir. 1994) (Evidence Rules inapplicable in supervised

release revocation proceedings); United States v. Schaefer, 87 F.3d 562

(1st Cir. 1996) (Evidence Rules inapplicable at suppression hearings);

United States v. Palesky, 855 F.2d 34 (1st Cir. 1988) (Evidence Rules are

not applicable in hearings held to determine whether a person will be

committed to or released from a psychiatric facility).

The courts establish these exemptions because they are within the spirit

of Rule 1101(d)—exempting from the Rules those proceedings that are
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Case Law Divergence from the Federal Rules of Evidence

less formal than a trial and in which the judge is the finder of fact. See,

e.g., Government of Virgin Islands in Interest of A.M., 34 F.3d 153, 161 (3d

Cir. 1994) (Evidence Rules do not apply in juvenile transfer proceedings,

even though such proceedings are not specifically exempted in Rule

1101(d)(1); a juvenile transfer proceeding “is of a preliminary nature

and is consequently not comparable to a civil or criminal trial.”).
This page is blank in the printed version of the report.
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Stanley Marcus, U.S. Court of Appeals for the Eleventh Circuit

Judge Pauline Newman, U.S. Court of Appeals for the Federal Circuit

Chief Judge Jean C. Hamilton, U.S. District Court for the Eastern District of Missouri

Senior Judge Robert J. Bryan, U.S. District Court for the Western District of Washington

Judge William H. Yohn, Jr., U.S. District Court for the Eastern District of Pennsylvania

Judge A. Thomas Small, U.S. Bankruptcy Court for the Eastern District of North Carolina

Magistrate Judge Virginia M. Morgan, U.S. District Court for the Eastern District of Michigan

Leonidas Ralph Mecham, Director of the Administrative Office of the U.S. Courts

Director

Judge Fern M. Smith

Deputy Director

Russell R. Wheeler

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial system. It

was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which also includes

the director of the Administrative Office of the U.S. Courts and seven judges elected by the Judicial

Conference.

The Director’s Office is responsible for the Center’s overall management and its relations with

other organizations. Its Systems Innovation & Development Office provides technical support for

Center education and research. Communications Policy & Design edits, produces, and distributes

all Center print and electronic publications, operates the Federal Judicial Television Network, and

through the Information Services Office maintains a specialized library collection of materials on

judicial administration.

The Judicial Education Division develops and administers education programs and services for

judges, career court attorneys, and federal defender office personnel. These include orientation

seminars, continuing education programs, and special-focus workshops. The Interjudicial Affairs

Office provides information about judicial improvement to judges and others of foreign countries,

and identifies international legal developments of importance to personnel of the federal courts.

The Court Education Division develops and administers education and training programs and

services for nonjudicial court personnel, such as those in clerks’ offices and probation and pretrial

services offices, and management training programs for court teams of judges and managers.

The Research Division undertakes empirical and exploratory research on federal judicial processes, court management, and sentencing and its consequences, often at the request of the Judicial

Conference and its committees, the courts themselves, or other groups in the federal system. The

Federal Judicial History Office develops programs relating to the history of the judicial branch and

assists courts with their own judicial history programs.