Rule 603. Oath or Affirmation to Testify TruthfullyBefore testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules The rule is designed to afford the flexibility  required in dealing with religious adults, atheists, conscientious  objectors, mental defectives, and children. Affirmation is simply a  solemn undertaking to tell the truth; no special verbal formula is  required. As is true generally, affirmation is recognized by federal  law. “Oath” includes affirmation, 1 U.S.C. §1;  judges and clerks may administer oaths and affirmations, 28 U.S.C.  §§459, 953; and affirmations are acceptable in lieu of oaths under Rule  43(d) of the Federal Rules of Civil Procedure. Perjury by a witness is a crime, 18 U.S.C. §1621. Notes of Advisory Committee on Rules—1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules—2011 Amendment The language of Rule 603 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.


Rule 801. Definitions That Apply to This Article; Exclusions from HearsayThe following definitions apply under this article:
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony and is offered:
(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground; or
(C) identifies a person as someone the declarant perceived earlier.
(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.
The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).
Notes
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1938; Pub. L. 94–113, §1, Oct. 16, 1975, 89 Stat. 576; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 25, 2014, eff. Dec. 1, 2014.)
Notes of Advisory Committee on Proposed Rules
Subdivision (a). The definition of “statement” assumes importance because the term is used in the definition of hearsay in subdivision (c). The effect of the definition of “statement” is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion. The key to the definition is that nothing is an assertion unless intended to be one.
It can scarcely be doubted that an assertion made in words is intended by the declarant to be an assertion. Hence verbal assertions readily fall into the category of “statement.” Whether nonverbal conduct should be regarded as a statement for purposes of defining hearsay requires further consideration. Some nonverbal conduct, such as the act of pointing to identify a suspect in a lineup, is clearly the equivalent of words, assertive in nature, and to be regarded as a statement. Other nonverbal conduct, however, may be offered as evidence that the person acted as he did because of his belief in the existence of the condition sought to be proved, from which belief the existence of the condition may be inferred. This sequence is, arguably, in effect an assertion of the existence of the condition and hence properly includable within the hearsay concept. See Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L. Rev. 177, 214, 217 (1948), and the elaboration in Finman, Implied Assertions as Hearsay: Some Criticisms of the Uniform Rules of Evidence, 14 Stan.L.Rev. 682 (1962). Admittedly evidence of this character is untested with respect to the perception, memory, and narration (or their equivalents) of the actor, but the Advisory Committee is of the view that these dangers are minimal in the absence of an intent to assert and do not justify the loss of the evidence on hearsay grounds. No class of evidence is free of the possibility of fabrication, but the likelihood is less with nonverbal than with assertive verbal conduct. The situations giving rise to the nonverbal conduct are such as virtually to eliminate questions of sincerity. Motivation, the nature of the conduct, and the presence or absence of reliance will bear heavily upon the weight to be given the evidence. Falknor, The “Hear-Say” Rule as a “See-Do” Rule: Evidence of Conduct, 33 Rocky Mt.L.Rev. 133 (1961). Similar considerations govern nonassertive verbal conduct and verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted, also excluded from the definition of hearsay by the language of subdivision (c).
When evidence of conduct is offered on the theory that it is not a statement, and hence not hearsay, a preliminary determination will be required to determine whether an assertion is intended. The rule is so worded as to place the burden upon the party claiming that the intention existed; ambiguous and doubtful cases will be resolved against him and in favor of admissibility. The determination involves no greater difficulty than many other preliminary questions of fact. Maguire, The Hearsay System: Around and Through the Thicket, 14 Vand.L.Rev. 741, 765–767 (1961).
For similar approaches, see Uniform Rule 62(1); California Evidence Code §§225, 1200; Kansas Code of Civil Procedure §60–459(a); New Jersey Evidence Rule 62(1)
Subdivision (c). The definition follows along familiar lines in including only statements offered to prove the truth of the matter asserted. McCormick §225; 5 Wigmore §1361, 6 id. §1766. If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted, and the statement is not hearsay. Emich Motors Corp. v. General Motors Corp., 181 F.2d 70 (7th Cir. 1950), rev'd on other grounds 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed 534, letters of complaint from customers offered as a reason for cancellation of dealer's franchise, to rebut contention that franchise was revoked for refusal to finance sales through affiliated finance company. The effect is to exclude from hearsay the entire category of “verbal acts” and “verbal parts of an act,” in which the statement itself affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights.
The definition of hearsay must, of course, be read with reference to the definition of statement set forth in subdivision (a).
Testimony given by a witness in the course of court proceedings is excluded since there is compliance with all the ideal conditions for testifying.
Subdivision (d). Several types of statements which would otherwise literally fall within the definition are expressly excluded from it:
(1) Prior statement by witness. Considerable controversy has attended the question whether a prior out-of-court statement by a person now available for cross-examination concerning it, under oath and in the presence of the trier of fact, should be classed as hearsay. If the witness admits on the stand that he made the statement and that it was true, he adopts the statement and there is no hearsay problem. The hearsay problem arises when the witness on the stand denies having made the statement or admits having made it but denies its truth. The argument in favor of treating these latter statements as hearsay is based upon the ground that the conditions of oath, cross-examination, and demeanor observation did not prevail at the time the statement was made and cannot adequately be supplied by the later examination. The logic of the situation is troublesome. So far as concerns the oath, its mere presence has never been regarded as sufficient to remove a statement from the hearsay category, and it receives much less emphasis than cross-examination as a truth-compelling device. While strong expressions are found to the effect that no conviction can be had or important right taken away on the basis of statements not made under fear of prosecution for perjury, Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945), the fact is that, of the many common law exceptions to the hearsay rule, only that for reported testimony has required the statement to have been made under oath. Nor is it satisfactorily explained why cross-examination cannot be conducted subsequently with success. The decisions contending most vigorously for its inadequacy in fact demonstrate quite thorough exploration of the weaknesses and doubts attending the earlier statement. State v. Saporen, 205 Minn. 358, 285 N.W. 898 (1939); Ruhala v. Roby, 379 Mich. 102, 150 N.W.2d 146 (1967); People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111 (1968). In respect to demeanor, as Judge Learned Hand observed in Di Carlo v. United States, 6 F.2d 364 (2d Cir. 1925), when the jury decides that the truth is not what the witness says now, but what he said before, they are still deciding from what they see and hear in court. The bulk of the case law nevertheless has been against allowing prior statements of witnesses to be used generally as substantive evidence. Most of the writers and Uniform Rule 63(1) have taken the opposite position.
The position taken by the Advisory Committee in formulating this part of the rule is founded upon an unwillingness to countenance the general use of prior prepared statements as substantive evidence, but with a recognition that particular circumstances call for a contrary result. The judgment is one more of experience than of logic. The rule requires in each instance, as a general safeguard, that the declarant actually testify as a witness, and it then enumerates three situations in which the statement is excepted from the category of hearsay. Compare Uniform Rule 63(1) which allows any out-of-court statement of a declarant who is present at the trial and available for cross-examination.
(A) Prior inconsistent statements traditionally have been admissible to impeach but not as substantive evidence. Under the rule they are substantive evidence. As has been said by the California Law Revision Commission with respect to a similar provision:
“Section 1235 admits inconsistent statements of witnesses because the dangers against which the hearsay rule is designed to protect are largely nonexistent. The declarant is in court and may be examined and cross-examined in regard to his statements and their subject matter. In many cases, the inconsistent statement is more likely to be true than the testimony of the witness at the trial because it was made nearer in time to the matter to which it relates and is less likely to be influenced by the controversy that gave rise to the litigation. The trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony as he denies or tries to explain away the inconsistency. Hence, it is in as good a position to determine the truth or falsity of the prior statement as it is to determine the truth or falsity of the inconsistent testimony given in court. Moreover, Section 1235 will provide a party with desirable protection against the ‘turncoat’ witness who changes his story on the stand and deprives the party calling him of evidence essential to his case.” Comment, California Evidence Code §1235. See also McCormick §39. The Advisory Committee finds these views more convincing than those expressed in People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111 (1968). The constitutionality of the Advisory Committee's view was upheld in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Moreover, the requirement that the statement be inconsistent with the testimony given assures a thorough exploration of both versions while the witness is on the stand and bars any general and indiscriminate use of previously prepared statements.
(B) Prior consistent statements traditionally have been admissible to rebut charges of recent fabrication or improper influence or motive but not as substantive evidence. Under the rule they are substantive evidence. The prior statement is consistent with the testimony given on the stand, and, if the opposite party wishes to open the door for its admission in evidence, no sound reason is apparent why it should not be received generally.
(C) The admission of evidence of identification finds substantial support, although it falls beyond a doubt in the category of prior out-of-court statements. Illustrative are People v. Gould, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 (1960); Judy v. State, 218 Md. 168, 146 A.2d 29 (1958); State v. Simmons, 63 Wash.2d 17, 385 P.2d 389 (1963); California Evidence Code §1238; New Jersey Evidence Rule 63(1)(c); N.Y. Code of Criminal Procedure §393–b. Further cases are found in 4 Wigmore §1130. The basis is the generally unsatisfactory and inconclusive nature of courtroom identifications as compared with those made at an earlier time under less suggestive conditions. The Supreme Court considered the admissibility of evidence of prior identification in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Exclusion of lineup identification was held to be required because the accused did not then have the assistance of counsel. Significantly, the Court carefully refrained from placing its decision on the ground that testimony as to the making of a prior out-of-court identification (“That's the man”) violated either the hearsay rule or the right of confrontation because not made under oath, subject to immediate cross-examination, in the presence of the trier. Instead the Court observed:
“There is a split among the States concerning the admissibility of prior extra-judicial identifications, as independent evidence of identity, both by the witness and third parties present at the prior identification. See 71 ALR2d 449. It has been held that the prior identification is hearsay, and, when admitted through the testimony of the identifier, is merely a prior consistent statement. The recent trend, however, is to admit the prior identification under the exception that admits as substantive evidence a prior communication by a witness who is available for cross-examination at the trial. See 5 ALR2d Later Case Service 1225–1228. * * *” 388 U.S. at 272, n. 3, 87 S.Ct. at 1956.
(2) Admissions. Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule. Strahorn, A Reconsideration of the Hearsay Rule and Admissions, 85 U.Pa.L.Rev. 484, 564 (1937); Morgan, Basic Problems of Evidence 265 (1962); 4 Wigmore §1048. No guarantee of trustworthiness is required in the case of an admission. The freedom which admissions have enjoyed from technical demands of searching for an assurance of trustworthiness in some against-interest circumstance, and from the restrictive influences of the opinion rule and the rule requiring firsthand knowledge, when taken with the apparently prevalent satisfaction with the results, calls for generous treatment of this avenue to admissibility.
The rule specifies five categories of statements for which the responsibility of a party is considered sufficient to justify reception in evidence against him:
(A) A party's own statement is the classic example of an admission. If he has a representative capacity and the statement is offered against him in that capacity, no inquiry whether he was acting in the representative capacity in making the statement is required; the statement need only be relevant to represent affairs. To the same effect in California Evidence Code §1220. Compare Uniform Rule 63(7), requiring a statement to be made in a representative capacity to be admissible against a party in a representative capacity.
(B) Under established principles an admission may be made by adopting or acquiescing in the statement of another. While knowledge of contents would ordinarily be essential, this is not inevitably so: “X is a reliable person and knows what he is talking about.” See McCormick §246, p. 527, n. 15. Adoption or acquiescence may be manifested in any appropriate manner. When silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made in his presence, if untrue. The decision in each case calls for an evaluation in terms of probable human behavior. In civil cases, the results have generally been satisfactory. In criminal cases, however, troublesome questions have been raised by decisions holding that failure to deny is an admission: the inference is a fairly weak one, to begin with; silence may be motivated by advice of counsel or realization that “anything you say may be used against you”; unusual opportunity is afforded to manufacture evidence; and encroachment upon the privilege against self-incrimination seems inescapably to be involved. However, recent decisions of the Supreme Court relating to custodial interrogation and the right to counsel appear to resolve these difficulties. Hence the rule contains no special provisions concerning failure to deny in criminal cases.
(C) No authority is required for the general proposition that a statement authorized by a party to be made should have the status of an admission by the party. However, the question arises whether only statements to third persons should be so regarded, to the exclusion of statements by the agent to the principal. The rule is phrased broadly so as to encompass both. While it may be argued that the agent authorized to make statements to his principal does not speak for him, Morgan, Basic Problems of Evidence 273 (1962), communication to an outsider has not generally been thought to be an essential characteristic of an admission. Thus a party's books or records are usable against him, without regard to any intent to disclose to third persons. 5 Wigmore §1557. See also McCormick §78, pp. 159–161. In accord is New Jersey Evidence Rule 63(8)(a). Cf. Uniform Rule 63(8)(a) and California Evidence Code §1222 which limit status as an admission in this regard to statements authorized by the party to be made “for” him, which is perhaps an ambiguous limitation to statements to third persons. Falknor, Vicarious Admissions and the Uniform Rules, 14 Vand.L. Rev. 855, 860–861 (1961).
(D) The tradition has been to test the admissibility of statements by agents, as admissions, by applying the usual test of agency. Was the admission made by the agent acting in the scope of his employment? Since few principals employ agents for the purpose of making damaging statements, the usual result was exclusion of the statement. Dissatisfaction with this loss of valuable and helpful evidence has been increasing. A substantial trend favors admitting statements related to a matter within the scope of the agency or employment. Grayson v. Williams, 256 F.2d 61 (10th Cir. 1958); Koninklijke Luchtvaart Maatschappij N.V. KLM Royal Dutch Airlines v. Tuller, 110 U.S.App.D.C. 282, 292 F.2d 775, 784 (1961); Martin v. Savage Truck Lines, Inc., 121 F.Supp. 417 (D.D.C. 1054), and numerous state court decisions collected in 4 Wigmore, 1964 Supp., pp. 66–73, with comments by the editor that the statements should have been excluded as not within scope of agency. For the traditional view see Northern Oil Co. v. Socony Mobile Oil Co., 347 F.2d 81, 85 (2d Cir. 1965) and cases cited therein. Similar provisions are found in Uniform Rule 63(9)(a), Kansas Code of Civil Procedure §60–460(i)(1), and New Jersey Evidence Rule 63(9)(a).
(E) The limitation upon the admissibility of statements of co-conspirators to those made “during the course and in furtherance of the conspiracy” is in the accepted pattern. While the broadened view of agency taken in item (iv) might suggest wider admissibility of statements of co-conspirators, the agency theory of conspiracy is at best a fiction and ought not to serve as a basis for admissibility beyond that already established. See Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159 (1954); Comment, 25 U.Chi.L.Rev. 530 (1958). The rule is consistent with the position of the Supreme Court in denying admissibility to statements made after the objectives of the conspiracy have either failed or been achieved. Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Wong Sun v. United States, 371 U.S. 471, 490, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). For similarly limited provisions see California Evidence Code §1223 and New Jersey Rule 63(9)(b). Cf. Uniform Rule 63(9)(b).
Notes of Committee on the Judiciary, House Report No. 93–650
Present federal law, except in the Second Circuit, permits the use of prior inconsistent statements of a witness for impeachment only. Rule 801(d)(1) as proposed by the Court would have permitted all such statements to be admissible as substantive evidence, an approach followed by a small but growing number of State jurisdictions and recently held constitutional in California v. Green, 399 U.S. 149 (1970). Although there was some support expressed for the Court Rule, based largely on the need to counteract the effect of witness intimidation in criminal cases, the Committee decided to adopt a compromise version of the Rule similar to the position of the Second Circuit. The Rule as amended draws a distinction between types of prior inconsistent statements (other than statements of identification of a person made after perceiving him which are currently admissible, see United States v. Anderson, 406 F.2d 719, 720 (4th Cir.), cert. denied, 395 U.S. 967 (1969)) and allows only those made while the declarant was subject to cross-examination at a trial or hearing or in a deposition, to be admissible for their truth. Compare United States v. DeSisto, 329 F.2d 929 (2nd Cir.), cert. denied, 377 U.S. 979 (1964); United States v. Cunningham, 446 F.2d 194 (2nd Cir. 1971) (restricting the admissibility of prior inconsistent statements as substantive evidence to those made under oath in a formal proceeding, but not requiring that there have been an opportunity for cross-examination). The rationale for the Committee's decision is that (1) unlike in most other situations involving unsworn or oral statements, there can be no dispute as to whether the prior statement was made; and (2) the context of a formal proceeding, an oath, and the opportunity for cross-examination provide firm additional assurances of the reliability of the prior statement.
Notes of Committee on the Judiciary, Senate Report No. 93–1277
Rule 801 defines what is and what is not hearsay for the purpose of admitting a prior statement as substantive evidence. A prior statement of a witness at a trial or hearing which is inconsistent with his testimony is, of course, always admissible for the purpose of impeaching the witness’ credibility.
As submitted by the Supreme Court, subdivision (d)(1)(A) made admissible as substantive evidence the prior statement of a witness inconsistent with his present testimony.
The House severely limited the admissibility of prior inconsistent statements by adding a requirement that the prior statement must have been subject to cross-examination, thus precluding even the use of grand jury statements. The requirement that the prior statement must have been subject to cross-examination appears unnecessary since this rule comes into play only when the witness testifies in the present trial. At that time, he is on the stand and can explain an earlier position and be cross-examined as to both.
The requirement that the statement be under oath also appears unnecessary. Notwithstanding the absence of an oath contemporaneous with the statement, the witness, when on the stand, qualifying or denying the prior statement, is under oath. In any event, of all the many recognized exceptions to the hearsay rule, only one (former testimony) requires that the out-of-court statement have been made under oath. With respect to the lack of evidence of the demeanor of the witness at the time of the prior statement, it would be difficult to improve upon Judge Learned Hand's observation that when the jury decides that the truth is not what the witness says now but what he said before, they are still deciding from what they see and hear in court [ Di Carlo v. U.S., 6 F.2d 364 (2d Cir. 1925)].
The rule as submitted by the Court has positive advantages. The prior statement was made nearer in time to the events, when memory was fresher and intervening influences had not been brought into play. A realistic method is provided for dealing with the turncoat witness who changes his story on the stand [see Comment, California Evidence Code §1235; McCormick, Evidence, §38 (2nd ed. 1972)].
New Jersey, California, and Utah have adopted a rule similar to this one; and Nevada, New Mexico, and Wisconsin have adopted the identical Federal rule.
For all of these reasons, we think the House amendment should be rejected and the rule as submitted by the Supreme Court reinstated. [It would appear that some of the opposition to this Rule is based on a concern that a person could be convicted solely upon evidence admissible under this Rule. The Rule, however, is not addressed to the question of the sufficiency of evidence to send a case to the jury, but merely as to its admissibility. Factual circumstances could well arise where, if this were the sole evidence, dismissal would be appropriate].
As submitted by the Supreme Court and as passed by the House, subdivision (d)(1)(c) of rule 801 made admissible the prior statement identifying a person made after perceiving him. The committee decided to delete this provision because of the concern that a person could be convicted solely upon evidence admissible under this subdivision.
The House approved the long-accepted rule that “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy” is not hearsay as it was submitted by the Supreme Court. While the rule refers to a coconspirator, it is this committee's understanding that the rule is meant to carry forward the universally accepted doctrine that a joint venturer is considered as a coconspirator for the purposes of this rule even though no conspiracy has been charged. United States v. Rinaldi, 393 F.2d 97, 99 (2d Cir.), cert. denied 393 U.S. 913 (1968); United States v. Spencer, 415 F.2d 1301, 1304 (7th Cir. 1969).
Notes of Conference Committee, House Report No. 93–1597
Rule 801 supplies some basic definitions for the rules of evidence that deal with hearsay. Rule 801(d)(1) defines certain statements as not hearsay. The Senate amendments make two changes in it.
The House bill provides that a statement is not hearsay if the declarant testifies and is subject to cross-examination concerning the statement and if the statement is inconsistent with his testimony and was given under oath subject to cross-examination and subject to the penalty of perjury at a trial or hearing or in a deposition. The Senate amendment drops the requirement that the prior statement be given under oath subject to cross-examination and subject to the penalty of perjury at a trial or hearing or in a deposition.
The Conference adopts the Senate amendment with an amendment, 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. Prior inconsistent statements may, of course, be used for impeaching the credibility of a witness. When the prior inconsistent statement is one made by a defendant in a criminal case, it is covered by Rule 801(d)(2).
The House bill provides that a statement is not hearsay if the declarant testifies and is subject to cross-examination concerning the statement and the statement is one of identification of a person made after perceiving him. The Senate amendment eliminated this provision.
The Conference adopts the Senate amendment.
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Notes of Advisory Committee on Rules—1997 Amendment
Rule 801(d)(2) has been amended in order to respond to three issues raised by Bourjaily v. United States, 483 U.S. 171 (1987). First, the amendment codifies the holding in Bourjaily by stating expressly that a court shall consider the contents of a coconspirator's statement in determining “the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered.” According to Bourjaily, Rule 104(a) requires these preliminary questions to be established by a preponderance of the evidence.
Second, the amendment resolves an issue on which the Court had reserved decision. It provides that the contents of the declarant's statement do not alone suffice to establish a conspiracy in which the declarant and the defendant participated. The court must consider in addition the circumstances surrounding the statement, such as the identity of the speaker, the context in which the statement was made, or evidence corroborating the contents of the statement in making its determination as to each preliminary question. This amendment is in accordance with existing practice. Every court of appeals that has resolved this issue requires some evidence in addition to the contents of the statement. See, e.g., United States v. Beckham, 968 F.2d 47, 51 (D.C.Cir. 1992); United States v. Sepulveda, 15 F.3d 1161, 1181–82 (1st Cir. 1993), cert. denied, 114 S.Ct. 2714 (1994); United States v. Daly, 842 F.2d 1380, 1386 (2d Cir.), cert. denied, 488 U.S. 821 (1988); United States v. Clark, 18 F.3d 1337, 1341–42 (6th Cir.), cert. denied, 115 S.Ct. 152 (1994); United States v. Zambrana, 841 F.2d 1320, 1344–45 (7th Cir. 1988); United States v. Silverman, 861 F.2d 571, 577 (9th Cir. 1988); United States v. Gordon, 844 F.2d 1397, 1402 (9th Cir. 1988); United States v. Hernandez, 829 F.2d 988, 993 (10th Cir. 1987), cert. denied, 485 U.S. 1013 (1988); United States v. Byrom, 910 F.2d 725, 736 (11th Cir. 1990).
Third, the amendment extends the reasoning of Bourjaily to statements offered under subdivisions (C) and (D) of Rule 801(d)(2). In Bourjaily, the Court rejected treating foundational facts pursuant to the law of agency in favor of an evidentiary approach governed by Rule 104(a). The Advisory Committee believes it appropriate to treat analogously preliminary questions relating to the declarant's authority under subdivision (C), and the agency or employment relationship and scope thereof under subdivision (D).
GAP Report on Rule 801. The word “shall” was substituted for the word “may” in line 19. The second sentence of the committee note was changed accordingly.
Committee Notes on Rules—2011 Amendment
The language of Rule 801 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
Statements falling under the hearsay exclusion provided by Rule 801(d)(2) are no longer referred to as “admissions” in the title to the subdivision. The term “admissions” is confusing because not all statements covered by the exclusion are admissions in the colloquial sense — a statement can be within the exclusion even if it “admitted” nothing and was not against the party’s interest when made. The term “admissions” also raises confusion in comparison with the Rule 804(b)(3) exception for declarations against interest. No change in application of the exclusion is intended.
Committee Notes on Rules—2014 Amendment
Rule 801(d)(1)(B), as originally adopted, provided for substantive use of certain prior consistent statements of a witness subject to cross-examination. As the Advisory Committee noted, “[t]he prior statement is consistent with the testimony given on the stand, and, if the opposite party wishes to open the door for its admission in evidence, no sound reason is apparent why it should not be received generally.”
Though the original Rule 801(d)(1)(B) provided for substantive use of certain prior consistent statements, the scope of that Rule was limited. The Rule covered only those consistent statements that were offered to rebut charges of recent fabrication or improper motive or influence. The Rule did not, for example, provide for substantive admissibility of consistent statements that are probative to explain what otherwise appears to be an inconsistency in the witness's testimony. Nor did it cover consistent statements that would be probative to rebut a charge of faulty memory. Thus, the Rule left many prior consistent statements potentially admissible only for the limited purpose of rehabilitating a witness's credibility. The original Rule also led to some conflict in the cases; some courts distinguished between substantive and rehabilitative use for prior consistent statements, while others appeared to hold that prior consistent statements must be admissible under Rule 801(d)(1)(B) or not at all.
The amendment retains the requirement set forth in Tome v. United States, 513 U.S. 150 (1995): that under Rule 801(d)(1)(B), a consistent statement offered to rebut a charge of recent fabrication of1 improper influence or motive must have been made before the alleged fabrication or improper inference or motive arose. The intent of the amendment is to extend substantive effect to consistent statements that rebut other attacks on a witness -- such as the charges of inconsistency or faulty memory.
The amendment does not change the traditional and well-accepted limits on bringing prior consistent statements before the factfinder for credibility purposes. It does not allow impermissible bolstering of a witness.
As before, prior consistent statements under the amendment may be brought before the factfinder only if they properly rehabilitate a witness whose credibility has been attacked. As before, to be admissible for rehabilitation, a prior consistent statement must satisfy the strictures of Rule 403. As before, the trial court has ample discretion to exclude prior consistent statements that are cumulative accounts of an event. The amendment does not make any consistent statement admissible that was not admissible previously -- the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well.
Changes Made After Publication and Comment
The text of the proposed amendment was changed to clarify that the traditional limits on using prior consistent statements to rebut a charge of recent fabrication or improper influence or motive are retained. The Committee Note was modified to accord with the change in text.
Amendment by Public Law
1975 —Subd. (d)(1). Pub. L. 94–113 added cl. (C).
Effective Date of 1975 Amendment
Section 2 of Pub. L. 94–113 provided that: “This Act [enacting subd. (d)(1)(C)] shall become effective on the fifteenth day after the date of the enactment of this Act [Oct. 16, 1975].”


Rule 1101. Applicability of the Rules(a) To Courts and Judges. These rules apply to proceedings before: · United States district courts; · United States bankruptcy and magistrate judges; · United States courts of appeals; · the United States Court of Federal Claims; and · the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands. (b) To Cases and Proceedings. These rules apply in: · civil cases and proceedings, including bankruptcy, admiralty, and maritime cases; · criminal cases and proceedings; and · contempt proceedings, except those in which the court may act summarily. (c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding. (d) Exceptions. These rules — except for those on privilege — do not apply to the following: (1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility; (2) grand-jury proceedings; and (3) miscellaneous proceedings such as: · extradition or rendition; · issuing an arrest warrant, criminal summons, or search warrant; · a preliminary examination in a criminal case; · sentencing; · granting or revoking probation or supervised release; and · considering whether to release on bail or otherwise. (e) Other Statutes and Rules. A federal statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence independently from these rules. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat.  1947; Pub. L. 94–149, §1(14), Dec. 12, 1975, 89 Stat. 806; Pub. L.  95–598, title II, §§251, 252, Nov. 6, 1978, 92 Stat. 2673; Pub. L.  97–164, title I, §142, Apr. 2, 1982, 96 Stat. 45; Mar. 2, 1987, eff.  Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Pub. L. 100–690, title  VII, §7075(c), Nov. 18, 1988, 102 Stat. 4405; Apr. 22, 1993, eff. Dec.  1, 1993; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules Subdivision (a). The various enabling acts contain differences  in phraseology in their descriptions of the courts over which the  Supreme Court's power to make rules of practice and procedure extends.  The act concerning civil actions, as amended in 1966, refers to “the  district courts * * * of the United States in civil actions,  including admiralty and maritime cases. * * *” 28 U.S.C. §2072,  Pub. L. 89–773, §1, 80 Stat. 1323. The bankruptcy authorization is for  rules of practice and procedure “under the Bankruptcy Act.” 28 U.S.C. §2075,  Pub. L. 88–623, §1, 78 Stat. 1001. The Bankruptcy Act in turn creates  bankruptcy courts of “the United States district courts and the district  courts of the Territories and possessions to which this title is or may  hereafter be applicable.” 11 U.S.C. §§1(10), 11(a). The provision as to  criminal rules up to and including verdicts applies to “criminal cases  and proceedings to punish for criminal contempt of court in the United  States district courts, in the district courts for the districts of the  Canal Zone and Virgin Islands, in the Supreme Court of Puerto Rico, and  in proceedings before United States magistrates.” 18 U.S.C. §3771. These various provisions do not in terms describe  the same courts. In congressional usage the phrase “district courts of  the United States,” without further qualification, traditionally has  included the district courts established by Congress in the states under  Article III of the Constitution, which are “constitutional” courts, and  has not included the territorial courts created under Article IV,  Section 3, Clause 2, which are “legislative” courts. Hornbuckle v. Toombs, 85 U.S. 648, 21 L.Ed. 966 (1873). However, any doubt as to the inclusion of the  District Court for the District of Columbia in the phrase is laid at  rest by the provisions of the Judicial Code constituting the judicial  districts, 28 U.S.C. §81 et seq. creating district courts therein, Id. §132, and specifically providing that the term “district court of the United States” means the courts so constituted. Id. §451. The District of Columbia is included. Id. §88. Moreover, when these provisions were enacted,  reference to the District of Columbia was deleted from the original  civil rules enabling act. 28 U.S.C. §2072. Likewise Puerto Rico is made a district, with a district court, and included in the term. Id. §119. The question is simply one of the extent of the  authority conferred by Congress. With respect to civil rules it seems  clearly to include the district courts in the states, the District Court  for the District of Columbia, and the District Court for the District  of Puerto Rico. The bankruptcy coverage is broader. The bankruptcy  courts include “the United States district courts,” which includes those  enumerated above. Bankruptcy courts also include “the district courts  of the Territories and possessions to which this title is or may  hereafter be applicable.” 11 U.S.C. §§1(10), 11(a). These courts include  the district courts of Guam and the Virgin Islands. 48 U.S.C.  §§1424(b), 1615. Professor Moore points out that whether the District  Court for the District of the Canal Zone is a court of bankruptcy “is  not free from doubt in view of the fact that no other statute expressly  or inferentially provides for the applicability of the Bankruptcy Act in  the Zone.” He further observes that while there seems to be little  doubt that the Zone is a territory or possession within the meaning of  the Bankruptcy Act, 11 U.S.C. §1 (10),  it must be noted that the appendix to the Canal Zone Code of 1934 did  not list the Act among the laws of the United States applicable to the  Zone. 1 Moore's Collier on Bankruptcy 1.10, pp. 67, 72, n. 25 (14th ed.  1967). The Code of 1962 confers on the district court jurisdiction of: “(4) actions and proceedings involving laws of the United States applicable to the Canal Zone; and “(5) other matters and proceedings wherein  jurisdiction is conferred by this Code or any other law.” Canal Zone  Code, 1962, Title 3, §141. Admiralty jurisdiction is expressly conferred. Id. §142. General powers are conferred on the district court,  “if the course of proceeding is not specifically prescribed by this  Code, by the statute, or by applicable rule of the Supreme Court of the  United States * * *” Id. §279. Neither these provisions nor §1(10) of the Bankruptcy  Act (“district courts of the Territories and possessions to which this  title is or may hereafter be applicable”) furnishes a satisfactory  answer as to the status of the District Court for the District of the  Canal Zone as a court of bankruptcy. However, the fact is that this  court exercises no bankruptcy jurisdiction in practice. The criminal rules enabling act specifies United  States district courts, district courts for the districts of the Canal  Zone and the Virgin Islands, the Supreme Court of the Commonwealth of  Puerto Rico, and proceedings before United States commissioners. Aside  from the addition of commissioners, now magistrates, this scheme differs  from the bankruptcy pattern in that it makes no mention of the District  Court of Guam but by specific mention removes the Canal Zone from the  doubtful list. The further difference in including the Supreme  Court of the Commonwealth of Puerto Rico seems not to be significant for  present purposes, since the Supreme Court of the Commonwealth of Puerto  Rico is an appellate court. The Rules of Criminal Procedure have not  been made applicable to it, as being unneeded and inappropriate, Rule  54(a) of the Federal Rules of Criminal Procedure, and the same approach  is indicated with respect to rules of evidence. If one were to stop at this point and frame a rule  governing the applicability of the proposed rules of evidence in terms  of the authority conferred by the three enabling acts, an irregular  pattern would emerge as follows: Civil actions, including admiralty and maritime cases—district courts in the states, District of Columbia, and Puerto Rico. Bankruptcy— same as civil actions, plus Guam and Virgin Islands. Criminal cases— same as civil actions, plus Canal Zone and Virgin Islands (but not Guam). This irregular pattern need not, however, be  accepted. Originally the Advisory Committee on the Rules of Civil  Procedure took the position that, although the phrase “district courts  of the United States” did not include territorial courts, provisions in  the organic laws of Puerto Rico and Hawaii would make the rules  applicable to the district courts thereof, though this would not be so  as to Alaska, the Virgin Islands, or the Canal Zone, whose organic acts  contained no corresponding provisions. At the suggestion of the Court,  however, the Advisory Committee struck from its notes a statement to the  above effect. 2 Moore's Federal Practice 1.07 (2nd ed. 1967); 1 Barron  and Holtzoff, Federal Practice and Procedure §121 (Wright ed. 1960).  Congress thereafter by various enactments provided that the rules and  future amendments thereto should apply to the district courts of Hawaii,  53 Stat. 841 (1939), Puerto Rico, 54 Stat. 22 (1940), Alaska, 63 Stat.  445 (1949), Guam, 64 Stat. 384–390 (1950), and the Virgin Islands, 68  Stat. 497, 507 (1954). The original enabling act for rules of criminal  procedure specifically mentioned the district courts of the Canal Zone  and the Virgin Islands. The Commonwealth of Puerto Rico was blanketed in  by creating its court a “district court of the United States” as  previously described. Although Guam is not mentioned in either the  enabling act or in the expanded definition of “district court of the  United States,” the Supreme Court in 1956 amended Rule 54(a) to state  that the Rules of Criminal Procedure are applicable in Guam. The Court  took this step following the enactment of legislation by Congress in  1950 that rules theretofore or thereafter promulgated by the Court in  civil cases, admiralty, criminal cases and bankruptcy should apply to  the District Court of Guam, 48 U.S.C. §1424(b), and two Ninth Circuit decisions upholding the applicability of the Rules of Criminal Procedure to Guam. Pugh v. United States, 212 F.2d 761 (9th Cir. 1954); Hatchett v. Guam, 212 F.2d 767 (9th Cir. 1954); Orfield, The Scope of the Federal Rules of Criminal Procedure, 38 U. of Det.L.J. 173, 187 (1960). From this history, the reasonable conclusion is  that Congressional enactment of a provision that rules and future  amendments shall apply in the courts of a territory or possession is the  equivalent of mention in an enabling act and that a rule on scope and  applicability may properly be drafted accordingly. Therefore the pattern  set by Rule 54 of the Federal Rules of Criminal Procedure is here followed. The substitution of magistrates in lieu of  commissioners is made in pursuance of the Federal Magistrates Act, P.L.  90–578, approved October 17, 1968, 82 Stat. 1107. Subdivision (b) is a combination of the language of the enabling acts, supra, with respect to the kinds of proceedings in which the  making of rules is authorized. It is subject to the qualifications  expressed in the subdivisions which follow. Subdivision (c), singling out the rules of privilege for  special treatment, is made necessary by the limited applicability of the  remaining rules. Subdivision (d). The rule is not intended as an expression as  to when due process or other constitutional provisions may require an  evidentiary hearing. Paragraph (1) restates, for convenience, the  provisions of the second sentence of Rule 104(a), supra. See Advisory Committee's Note to that rule. (2) While some states have statutory requirements  that indictments be based on “legal evidence,” and there is some case  law to the effect that the rules of evidence apply to grand jury  proceedings, 1 Wigmore §4(5), the Supreme Court has not accepted this  view. In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1965), the Court refused to allow an  indictment to be attacked, for either constitutional or policy reasons,  on the ground that only hearsay evidence was presented. “It would run counter to the whole history of the  grand jury institution, in which laymen conduct their inquiries  unfettered by technical rules. Neither justice nor the concept of a fair  trial requires such a change.” Id. at 364. The rule as drafted does not deal with the evidence required to support an indictment. (3) The rule exempts preliminary examinations in  criminal cases. Authority as to the applicability of the rules of  evidence to preliminary examinations has been meagre and conflicting.  Goldstein, The State and the Accused: Balance of Advantage in Criminal  Procedure, 69 Yale L.J. 1149, 1168, n. 53 (1960); Comment, Preliminary  Hearings on Indictable Offenses in Philadelphia, 106 U. of Pa.L.Rev.  589, 592–593 (1958). Hearsay testimony is, however, customarily received  in such examinations. Thus in a Dyer Act case, for example, an  affidavit may properly be used in a preliminary examination to prove  ownership of the stolen vehicle, thus saving the victim of the crime the  hardship of having to travel twice to a distant district for the sole  purpose of testifying as to ownership. It is believed that the extent of  the applicability of the Rules of Evidence to preliminary examinations  should be appropriately dealt with by the Federal Rules of Criminal Procedure which regulate those proceedings. Extradition and rendition proceedings are governed  in detail by statute. 18 U.S.C. §§3181–3195. They are essentially  administrative in character. Traditionally the rules of evidence have  not applied. 1 Wigmore §4(6). Extradition proceedings are accepted from  the operation of the Rules of Criminal Procedure. Rule 54(b)(5) of  Federal Rules of Criminal Procedure. The rules of evidence have not been regarded as  applicable to sentencing or probation proceedings, where great reliance  is placed upon the presentence investigation and report. Rule 32(c) of  the Federal Rules of Criminal Procedure requires a presentence investigation and report in every case unless the court otherwise directs. In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), in which the judge overruled a jury  recommendation of life imprisonment and imposed a death sentence, the  Court said that due process does not require confrontation or  cross-examination in sentencing or passing on probation, and that the  judge has broad discretion as to the sources and types of information  relied upon. Compare the recommendation that the substance of all  derogatory information be disclosed to the defendant, in A.B.A. Project  on Minimum Standards for Criminal Justice, Sentencing Alternatives and  Procedures §4.4, Tentative Draft (1967, Sobeloff, Chm.). Williams was  adhered to in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), but not extended to a proceeding  under the Colorado Sex Offenders Act, which was said to be a new charge  leading in effect to punishment, more like the recidivist statutes where  opportunity must be given to be heard on the habitual criminal issue. Warrants for arrest, criminal summonses, and search  warrants are issued upon complaint or affidavit showing probable cause.  Rules 4(a) and 41(c) of the Federal Rules of Criminal Procedure. The  nature of the proceedings makes application of the formal rules of  evidence inappropriate and impracticable. Criminal contempts are punishable summarily if the  judge certifies that he saw or heard the contempt and that it was  committed in the presence of the court. Rule 42(a) of the Federal Rules  of Criminal Procedure. The circumstances which preclude application of  the rules of evidence in this situation are not present, however, in  other cases of criminal contempt. Proceedings with respect to release on bail or  otherwise do not call for application of the rules of evidence. The  governing statute specifically provides: “Information stated in, or offered in connection  with, any order entered pursuant to this section need not conform to the  rules pertaining to the admissibility of evidence in a court of law.” 18 U.S.C.A. §3146(f).  This provision is consistent with the type of inquiry contemplated in  A.B.A. Project on Minimum Standards for Criminal Justice, Standards  Relating to Pretrial Release, §4.5(b), (c), p. 16 (1968). The references  to the weight of the evidence against the accused, in Rule 46(a)(1),  (c) of the Federal Rules of Criminal Procedure and in 18 U.S.C.A. §3146(b), as a factor to be considered, clearly do not have in view evidence introduced at a hearing. The rule does not exempt habeas corpus proceedings. The Supreme Court held in Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941), that the practice of disposing of  matters of fact on affidavit, which prevailed in some circuits, did not  “satisfy the command of the statute that the judge shall proceed ‘to  determine the facts of the case, by hearing the testimony and  arguments.’ ” This view accords with the emphasis in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), upon trial-type proceedings, Id. 311, 83 S.Ct. 745, with demeanor evidence as a significant factor, Id. 322, 83 S.Ct. 745, in applications by state prisoners  aggrieved by unconstitutional detentions. Hence subdivision (e) applies  the rules to habeas corpus proceedings to the extent not inconsistent  with the statute. Subdivision (e). In a substantial number of special proceedings, ad hoc evaluation has resulted in the promulgation of  particularized evidentiary provisions, by Act of Congress or by rule  adopted by the Supreme Court. Well adapted to the particular  proceedings, though not apt candidates for inclusion in a set of general  rules, they are left undisturbed. Otherwise, however, the rules of  evidence are applicable to the proceedings enumerated in the  subdivision. Notes of Committee on the Judiciary, House Report No. 93–650 Subdivision (a) as submitted to the Congress, in  stating the courts and judges to which the Rules of Evidence apply,  omitted the Court of Claims and commissioners of that Court. At the  request of the Court of Claims, the Committee amended the Rule to  include the Court and its commissioners within the purview of the Rules. Subdivision (b) was amended merely to substitute positive law citations for those which were not. Notes of Advisory Committee on Rules—1987 Amendment Subdivision (a) is amended to delete the reference  to the District Court for the District of the Canal Zone, which no  longer exists, and to add the District Court for the Northern Mariana  Islands. The United States bankruptcy judges are added to conform the  subdivision with Rule 1101(b) and Bankruptcy Rule 9017. Notes of Advisory Committee on Rules—1988 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules—1993 Amendment This revision is made to conform the rule to changes in terminology made by Rule 58 of the Federal Rules of Criminal Procedure and to the changes in the title of United States magistrates made by the Judicial Improvements Act of 1990. Committee Notes on Rules—2011 Amendment The  language of Rule 1101 has been amended as part of the restyling of the Evidence  Rules to make them more easily understood and to make style and terminology  consistent throughout the rules. These changes are intended to be stylistic  only. There is no intent to change any result in any ruling on evidence  admissibility. References in Text The Tariff Act of 1930, referred to in subd. (e),  is act June 17, 1930, ch. 497, 46 Stat. 590, as amended, which is  classified principally to chapter 4 (§1202 et seq.) of Title 19, Customs  Duties. Part V of title IV of the Tariff Act of 1930 enacted part V  (§1581 et seq.) of subtitle III of chapter 4 of Title 19. For complete  classification of this Act to the Code, see section 1654 of Title 19 and  Tables. The Anti-Smuggling Act ( 19 U.S.C. 1701 –1711),  referred to in subd. (e), is act Aug. 5, 1935, ch. 438, 49 Stat. 517,  as amended, which is classified principally to chapter 5 (§1701 et seq.)  of Title 19. For complete classification of this Act to the Code, see  section 1711 of Title 19 and Tables. The Federal Food, Drug, and Cosmetic Act, referred  to in subd. (e), is act June 25, 1938, ch. 675, 52 Stat. 1040, which is  classified generally to chapter 9 (§301 et seq.) of Title 21, Food and  Drugs. For complete classification of this Act to the Code, see section  301 of Title 21 and Tables. Section 4578 of the Revised Statutes ( 46 U.S.C. 679),  referred to in subd. (e), was repealed and reenacted as section  11104(b)–(d) of Title 46, Shipping, by Pub. L. 98–89, §§1, 2(a), 4(b),  Aug. 26, 1983, 97 Stat. 500. “An Act authorizing suits against the United States  in admiralty for damage caused by and salvage service rendered to  public vessels belonging to the United States, and for other purposes”,  approved March 3, 1925 (46 U.S.C. 781 –790),  referred to in subd. (e), is act Mar. 3, 1925, ch. 428, 43 Stat. 1112,  as amended, commonly known as the “Public Vessels Act”, which was  classified generally to chapter 22 (§§781 to 790) of former Title 46,  Appendix, Shipping, and was repealed and restated in chapter 311 of  Title 46, Shipping, by Pub. L. 109–304, §§6(c), 19, Oct. 6, 2006, 120 Stat. 1509,  1710. Section 31101 of Title 46 provides that chapter 311 of Title 46  may be cited as the Public Vessels Act. For disposition of sections of  former Title 46, Appendix, to Title 46, see Disposition Table preceding  section 101 of Title 46. Amendment by Public Law 1988 —Subd. (a). Pub. L. 100–690, §7075(c)(1), which directed  amendment of subd. (a) by striking “Rules” and inserting “rules”, could  not be executed because of the intervening amendment by the Court by  order dated Apr. 25, 1988, eff. Nov. 1, 1988. Pub. L. 100–690, §7075(c)(2), substituted “courts of appeals” for “Courts of Appeals”. 1982 —Subd. (a). Pub. L. 97–164 substituted “United States Claims  Court” for “Court of Claims” and struck out “and commissioners of the  Court of Claims” after “these rules include United States magistrates”. 1978 —Subd. (a). Pub. L. 95–598, §252, directed the amendment of  this subd. by adding “the United States bankruptcy courts,” after “the  United States district courts,”, which amendment did not become  effective pursuant to section 402(b) of Pub. L. 95–598, as amended, set  out as an Effective Date note preceding section 101 of Title 11,  Bankruptcy. Pub. L. 95–598, §251(a), struck out “, referees in bankruptcy,” after “United States magistrates”. Subd. (b). Pub. L. 95–598, §251(b), substituted “title 11, United States Code” for “the Bankruptcy Act”. 1975 —Subd. (e). Pub. L. 94–149 substituted “admiralty” for “admirality”. Change of Name References to United States Claims Court deemed to  refer to United States Court of Federal Claims, see section 902(b) of  Pub. L. 102–572, set out as a note under section 171 of this title. Effective Date of 1978 Amendment Amendment of subds. (a) and (b) of this rule by  section 251 of Pub. L. 95–598 effective Oct. 1, 1979, see section 402(c)  of Pub. L. 95–598, set out as an Effective Dates note preceding section  101 of the Appendix to Title 11, Bankruptcy. For Bankruptcy  Jurisdiction and procedure during transition period, see note preceding  section 1471 of this title. Effective Date of 1982 Amendment Amendment by Pub. L. 97–164 effective Oct. 1, 1982,  see section 402 of Pub. L. 97–164, set out as a note under section 171  of this title. 1  See References in Text note below.


Rule 702. Testimony by Expert WitnessesA witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Notes
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1937; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011.)
Notes of Advisory Committee on Proposed Rules
An intelligent evaluation of facts is often difficult or impossible without the application of some scientific, technical, or other specialized knowledge. The most common source of this knowledge is the expert witness, although there are other techniques for supplying it.
Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts. Since much of the criticism of expert testimony has centered upon the hypothetical question, it seems wise to recognize that opinions are not indispensable and to encourage the use of expert testimony in non-opinion form when counsel believes the trier can itself draw the requisite inference. The use of opinions is not abolished by the rule, however. It will continue to be permissible for the experts to take the further step of suggesting the inference which should be drawn from applying the specialized knowledge to the facts. See Rules 703 to 705.
Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. “There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.” Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418 (1952). When opinions are excluded, it is because they are unhelpful and therefore superfluous and a waste of time. 7 Wigmore §1918.
The rule is broadly phrased. The fields of knowledge which may be drawn upon are not limited merely to the “scientific” and “technical” but extend to all “specialized” knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a person qualified by “knowledge, skill, experience, training or education.” Thus within the scope of the rule are not only experts in the strictest sense of the word, e.g., physicians, physicists, and architects, but also the large group sometimes called “skilled” witnesses, such as bankers or landowners testifying to land values.
Committee Notes on Rules—2000 Amendment
Rule 702 has been amended in response to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and to the many cases applying Daubert, including Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). In Daubert the Court charged trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony, and the Court in Kumho clarified that this gatekeeper function applies to all expert testimony, not just testimony based in science. See also Kumho, 119 S.Ct. at 1178 (citing the Committee Note to the proposed amendment to Rule 702, which had been released for public comment before the date of the Kumho decision). The amendment affirms the trial court's role as gatekeeper and provides some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony. Consistently with Kumho, the Rule as amended provides that all types of expert testimony present questions of admissibility for the trial court in deciding whether the evidence is reliable and helpful. Consequently, the admissibility of all expert testimony is governed by the principles of Rule 104(a). Under that Rule, the proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence. See Bourjaily v. United States, 483 U.S. 171 (1987).
Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony. The specific factors explicated by the Daubert Court are (1) whether the expert's technique or theory can be or has been tested—that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; (2) whether the technique or theory has been subject to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards and controls; and (5) whether the technique or theory has been generally accepted in the scientific community. The Court in Kumho held that these factors might also be applicable in assessing the reliability of nonscientific expert testimony, depending upon “the particular circumstances of the particular case at issue.” 119 S.Ct. at 1175.
No attempt has been made to “codify” these specific factors. Daubert itself emphasized that the factors were neither exclusive nor dispositive. Other cases have recognized that not all of the specific Daubert factors can apply to every type of expert testimony. In addition to Kumho, 119 S.Ct. at 1175, see Tyus v. Urban Search Management, 102 F.3d 256 (7th Cir. 1996) (noting that the factors mentioned by the Court in Daubert do not neatly apply to expert testimony from a sociologist). See also Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802, 809 (3d Cir. 1997) (holding that lack of peer review or publication was not dispositive where the expert's opinion was supported by “widely accepted scientific knowledge”). The standards set forth in the amendment are broad enough to require consideration of any or all of the specific Daubert factors where appropriate.
Courts both before and after Daubert have found other factors relevant in determining whether expert testimony is sufficiently reliable to be considered by the trier of fact. These factors include:
(1) Whether experts are “proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995).
(2) Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. See General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that in some cases a trial court “may conclude that there is simply too great an analytical gap between the data and the opinion proffered”).
(3) Whether the expert has adequately accounted for obvious alternative explanations. See Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994) (testimony excluded where the expert failed to consider other obvious causes for the plaintiff's condition). Compare Ambrosini v. Labarraque, 101 F.3d 129 (D.C.Cir. 1996) (the possibility of some uneliminated causes presents a question of weight, so long as the most obvious causes have been considered and reasonably ruled out by the expert).
(4) Whether the expert “is being as careful as he would be in his regular professional work outside his paid litigation consulting.” Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir. 1997). See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999) (Daubert requires the trial court to assure itself that the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field”).
(5) Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1175 (1999) (Daubert's general acceptance factor does not “help show that an expert's testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology or necromancy.”); Moore v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc) (clinical doctor was properly precluded from testifying to the toxicological cause of the plaintiff's respiratory problem, where the opinion was not sufficiently grounded in scientific methodology); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) (rejecting testimony based on “clinical ecology” as unfounded and unreliable).
All of these factors remain relevant to the determination of the reliability of expert testimony under the Rule as amended. Other factors may also be relevant. See Kumho, 119 S.Ct. 1167, 1176 (“[W]e conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.”). Yet no single factor is necessarily dispositive of the reliability of a particular expert's testimony. See, e.g., Heller v. Shaw Industries, Inc., 167 F.3d 146, 155 (3d Cir. 1999) (“not only must each stage of the expert's testimony be reliable, but each stage must be evaluated practically and flexibly without bright-line exclusionary (or inclusionary) rules.”); Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317, n.5 (9th Cir. 1995) (noting that some expert disciplines “have the courtroom as a principal theatre of operations” and as to these disciplines “the fact that the expert has developed an expertise principally for purposes of litigation will obviously not be a substantial consideration.”).
A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule. Daubert did not work a “seachange over federal evidence law,” and “the trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system.” United States v. 14.38 Acres of Land Situated in Leflore County, Mississippi, 80 F.3d 1074, 1078 (5th Cir. 1996). As the Court in Daubert stated: “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” 509 U.S. at 595. Likewise, this amendment is not intended to provide an excuse for an automatic challenge to the testimony of every expert. See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999) (noting that the trial judge has the discretion “both to avoid unnecessary ‘reliability’ proceedings in ordinary cases where the reliability of an expert's methods is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert's reliability arises.”).
When a trial court, applying this amendment, rules that an expert's testimony is reliable, this does not necessarily mean that contradictory expert testimony is unreliable. The amendment is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise. See, e.g., Heller v. Shaw Industries, Inc., 167 F.3d 146, 160 (3d Cir. 1999) (expert testimony cannot be excluded simply because the expert uses one test rather than another, when both tests are accepted in the field and both reach reliable results). As the court stated in In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994), proponents “do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable. . . . The evidentiary requirement of reliability is lower than the merits standard of correctness.” See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1318 (9th Cir. 1995) (scientific experts might be permitted to testify if they could show that the methods they used were also employed by “a recognized minority of scientists in their field.”); Ruiz-Troche v. Pepsi Cola, 161 F.3d 77, 85 (1st Cir. 1998) (“ Daubert neither requires nor empowers trial courts to determine which of several competing scientific theories has the best provenance.”).
The Court in Daubert declared that the “focus, of course, must be solely on principles and methodology, not on the conclusions they generate.” 509 U.S. at 595. Yet as the Court later recognized, “conclusions and methodology are not entirely distinct from one another.” General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Under the amendment, as under Daubert, when an expert purports to apply principles and methods in accordance with professional standards, and yet reaches a conclusion that other experts in the field would not reach, the trial court may fairly suspect that the principles and methods have not been faithfully applied. See Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 598 (9th Cir. 1996). The amendment specifically provides that the trial court must scrutinize not only the principles and methods used by the expert, but also whether those principles and methods have been properly applied to the facts of the case. As the court noted in In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994), “ any step that renders the analysis unreliable . . . renders the expert's testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.”
If the expert purports to apply principles and methods to the facts of the case, it is important that this application be conducted reliably. Yet it might also be important in some cases for an expert to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case. For example, experts might instruct the factfinder on the principles of thermodynamics, or bloodclotting, or on how financial markets respond to corporate reports, without ever knowing about or trying to tie their testimony into the facts of the case. The amendment does not alter the venerable practice of using expert testimony to educate the factfinder on general principles. For this kind of generalized testimony, Rule 702 simply requires that: (1) the expert be qualified; (2) the testimony address a subject matter on which the factfinder can be assisted by an expert; (3) the testimony be reliable; and (4) the testimony “fit” the facts of the case.
As stated earlier, the amendment does not distinguish between scientific and other forms of expert testimony. The trial court's gatekeeping function applies to testimony by any expert. See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1171 (1999) (“We conclude that Daubert's general holding—setting forth the trial judge's general ‘gatekeeping’ obligation—applies not only to testimony based on ‘scientific’ knowledge, but also to testimony based on ‘technical’ and ‘other specialized’ knowledge.”). While the relevant factors for determining reliability will vary from expertise to expertise, the amendment rejects the premise that an expert's testimony should be treated more permissively simply because it is outside the realm of science. An opinion from an expert who is not a scientist should receive the same degree of scrutiny for reliability as an opinion from an expert who purports to be a scientist. See Watkins v. Telsmith, Inc., 121 F.3d 984, 991 (5th Cir. 1997) (“[I]t seems exactly backwards that experts who purport to rely on general engineering principles and practical experience might escape screening by the district court simply by stating that their conclusions were not reached by any particular method or technique.”). Some types of expert testimony will be more objectively verifiable, and subject to the expectations of falsifiability, peer review, and publication, than others. Some types of expert testimony will not rely on anything like a scientific method, and so will have to be evaluated by reference to other standard principles attendant to the particular area of expertise. The trial judge in all cases of proffered expert testimony must find that it is properly grounded, well-reasoned, and not speculative before it can be admitted. The expert's testimony must be grounded in an accepted body of learning or experience in the expert's field, and the expert must explain how the conclusion is so grounded. See, e.g., American College of Trial Lawyers, Standards and Procedures for Determining the Admissibility of Expert Testimony after Daubert, 157 F.R.D. 571, 579 (1994) (“[W]hether the testimony concerns economic principles, accounting standards, property valuation or other non-scientific subjects, it should be evaluated by reference to the ‘knowledge and experience’ of that particular field.”).
The amendment requires that the testimony must be the product of reliable principles and methods that are reliably applied to the facts of the case. While the terms “principles” and “methods” may convey a certain impression when applied to scientific knowledge, they remain relevant when applied to testimony based on technical or other specialized knowledge. For example, when a law enforcement agent testifies regarding the use of code words in a drug transaction, the principle used by the agent is that participants in such transactions regularly use code words to conceal the nature of their activities. The method used by the agent is the application of extensive experience to analyze the meaning of the conversations. So long as the principles and methods are reliable and applied reliably to the facts of the case, this type of testimony should be admitted.
Nothing in this amendment is intended to suggest that experience alone—or experience in conjunction with other knowledge, skill, training or education—may not provide a sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience. In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony. See, e.g., United States v. Jones, 107 F.3d 1147 (6th Cir. 1997) (no abuse of discretion in admitting the testimony of a handwriting examiner who had years of practical experience and extensive training, and who explained his methodology in detail); Tassin v. Sears Roebuck, 946 F.Supp. 1241, 1248 (M.D.La. 1996) (design engineer's testimony can be admissible when the expert's opinions “are based on facts, a reasonable investigation, and traditional technical/mechanical expertise, and he provides a reasonable link between the information and procedures he uses and the conclusions he reaches”). See also Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1178 (1999) (stating that “no one denies that an expert might draw a conclusion from a set of observations based on extensive and specialized experience.”).
If the witness is relying solely or primarily on experience, then the witness must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts. The trial court's gatekeeping function requires more than simply “taking the expert's word for it.” See Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319 (9th Cir. 1995) (“We've been presented with only the experts’ qualifications, their conclusions and their assurances of reliability. Under Daubert, that's not enough.”). The more subjective and controversial the expert's inquiry, the more likely the testimony should be excluded as unreliable. See O'Conner v. Commonwealth Edison Co., 13 F.3d 1090 (7th Cir. 1994) (expert testimony based on a completely subjective methodology held properly excluded). See also Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999) (“[I]t will at times be useful to ask even of a witness whose expertise is based purely on experience, say, a perfume tester able to distinguish among 140 odors at a sniff, whether his preparation is of a kind that others in the field would recognize as acceptable.”).
Subpart (1) of Rule 702 calls for a quantitative rather than qualitative analysis. The amendment requires that expert testimony be based on sufficient underlying “facts or data.” The term “data” is intended to encompass the reliable opinions of other experts. See the original Advisory Committee Note to Rule 703. The language “facts or data” is broad enough to allow an expert to rely on hypothetical facts that are supported by the evidence. Id.
When facts are in dispute, experts sometimes reach different conclusions based on competing versions of the facts. The emphasis in the amendment on “sufficient facts or data” is not intended to authorize a trial court to exclude an expert's testimony on the ground that the court believes one version of the facts and not the other.
There has been some confusion over the relationship between Rules 702 and 703. The amendment makes clear that the sufficiency of the basis of an expert's testimony is to be decided under Rule 702. Rule 702 sets forth the overarching requirement of reliability, and an analysis of the sufficiency of the expert's basis cannot be divorced from the ultimate reliability of the expert's opinion. In contrast, the “reasonable reliance” requirement of Rule 703 is a relatively narrow inquiry. When an expert relies on inadmissible information, Rule 703 requires the trial court to determine whether that information is of a type reasonably relied on by other experts in the field. If so, the expert can rely on the information in reaching an opinion. However, the question whether the expert is relying on a sufficient basis of information—whether admissible information or not—is governed by the requirements of Rule 702.
The amendment makes no attempt to set forth procedural requirements for exercising the trial court's gatekeeping function over expert testimony. See Daniel J. Capra, The Daubert Puzzle, 38 Ga.L.Rev. 699, 766 (1998) (“Trial courts should be allowed substantial discretion in dealing with Daubert questions; any attempt to codify procedures will likely give rise to unnecessary changes in practice and create difficult questions for appellate review.”). Courts have shown considerable ingenuity and flexibility in considering challenges to expert testimony under Daubert, and it is contemplated that this will continue under the amended Rule. See, e.g., Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184 (1st Cir. 1997) (discussing the application of Daubert in ruling on a motion for summary judgment); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 736, 739 (3d Cir. 1994) (discussing the use of in limine hearings); Claar v. Burlington N.R.R., 29 F.3d 499, 502–05 (9th Cir. 1994) (discussing the trial court's technique of ordering experts to submit serial affidavits explaining the reasoning and methods underlying their conclusions).
The amendment continues the practice of the original Rule in referring to a qualified witness as an “expert.” This was done to provide continuity and to minimize change. The use of the term “expert” in the Rule does not, however, mean that a jury should actually be informed that a qualified witness is testifying as an “expert.” Indeed, there is much to be said for a practice that prohibits the use of the term “expert” by both the parties and the court at trial. Such a practice “ensures that trial courts do not inadvertently put their stamp of authority” on a witness's opinion, and protects against the jury's being “overwhelmed by the so-called ‘experts’.” Hon. Charles Richey, Proposals to Eliminate the Prejudicial Effect of the Use of the Word “Expert” Under the Federal Rules of Evidence in Criminal and Civil Jury Trials, 154 F.R.D. 537, 559 (1994) (setting forth limiting instructions and a standing order employed to prohibit the use of the term “expert” in jury trials).
GAP Report—Proposed Amendment to Rule 702. The Committee made the following changes to the published draft of the proposed amendment to Evidence Rule 702:
1. The word “reliable” was deleted from Subpart (1) of the proposed amendment, in order to avoid an overlap with Evidence Rule 703, and to clarify that an expert opinion need not be excluded simply because it is based on hypothetical facts. The Committee Note was amended to accord with this textual change.
2. The Committee Note was amended throughout to include pertinent references to the Supreme Court's decision in Kumho Tire Co. v. Carmichael, which was rendered after the proposed amendment was released for public comment. Other citations were updated as well.
3. The Committee Note was revised to emphasize that the amendment is not intended to limit the right to jury trial, nor to permit a challenge to the testimony of every expert, nor to preclude the testimony of experience-based experts, nor to prohibit testimony based on competing methodologies within a field of expertise.
4. Language was added to the Committee Note to clarify that no single factor is necessarily dispositive of the reliability inquiry mandated by Evidence Rule 702.
Committee Notes on Rules—2011 Amendment
The language of Rule 702 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.


Rule 604. InterpreterAn interpreter must be qualified and must give an oath or affirmation to make a true translation. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules The rule implements Rule 43(f) of the Federal Rules of Civil Procedure and Rule 28(b) of the Federal Rules of Criminal Procedure, both of  which contain provisions for the appointment and compensation of  interpreters. Notes of Advisory Committee on Rules—1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules—2011 Amendment The language of Rule 604 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.


Rule 615. Excluding WitnessesAt a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding: (a) a party who is a natural person; (b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney; (c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or (d) a person authorized by statute to be present. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat.  1937; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988;  Pub. L. 100–690, title VII, §7075(a), Nov. 18, 1988, 102 Stat. 4405;  Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules The efficacy of excluding or sequestering witnesses  has long been recognized as a means of discouraging and exposing  fabrication, inaccuracy, and collusion. 6 Wigmore §§1837–1838. The  authority of the judge is admitted, the only question being whether the  matter is committed to his discretion or one of right. The rule takes  the latter position. No time is specified for making the request. Several categories of persons are excepted. (1)  Exclusion of persons who are parties would raise serious problems of  confrontation and due process. Under accepted practice they are not  subject to exclusion. 6 Wigmore §1841. (2) As the equivalent of the  right of a natural-person party to be present, a party which is not a  natural person is entitled to have a representative present. Most of the  cases have involved allowing a police officer who has been in charge of  an investigation to remain in court despite the fact that he will be a  witness. United States v. Infanzon, 235 F.2d 318 (2d Cir. 1956); Portomene v. United States, 221 F.2d 582 (5th Cir. 1955); Powell v. United States, 208 F.2d 618 (6th Cir. 1953); Jones v. United States, 252 F.Supp. 781 (W.D.Okl. 1966). Designation of the representative by the attorney  rather than by the client may at first glance appear to be an inversion  of the attorney-client relationship, but it may be assumed that the  attorney will follow the wishes of the client, and the solution is  simple and workable. See California Evidence Code §777. (3) The category  contemplates such persons as an agent who handled the transaction being  litigated or an expert needed to advise counsel in the management of  the litigation. See 6 Wigmore §1841, n. 4. Notes of Committee on the Judiciary, Senate Report No. 93–1277 Many district courts permit government counsel to  have an investigative agent at counsel table throughout the trial  although the agent is or may be a witness. The practice is permitted as  an exception to the rule of exclusion and compares with the situation  defense counsel finds himself in—he always has the client with him to  consult during the trial. The investigative agent's presence may be  extremely important to government counsel, especially when the case is  complex or involves some specialized subject matter. The agent, too,  having lived with the case for a long time, may be able to assist in  meeting trial surprises where the best-prepared counsel would otherwise  have difficulty. Yet, it would not seem the Government could often meet  the burden under rule 615 of showing that the agent's presence is  essential. Furthermore, it could be dangerous to use the agent as a  witness as early in the case as possible, so that he might then help  counsel as a nonwitness, since the agent's testimony could be needed in  rebuttal. Using another, nonwitness agent from the same investigative  agency would not generally meet government counsel's needs. This problem is solved if it is clear that  investigative agents are within the group specified under the second  exception made in the rule, for “an officer or employee of a party which  is not a natural person designated as its representative by its  attorney.” It is our understanding that this was the intention of the  House committee. It is certainly this committee's construction of the  rule. Notes of Advisory Committee on Rules—1987 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules—1988 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules—1998 Amendment The amendment is in response to: (1) the Victim's Rights and Restitution Act of 1990, 42 U.S.C. §10606,  which guarantees, within certain limits, the right of a crime victim to  attend the trial; and (2) the Victim Rights Clarification Act of 1997 (18 U.S.C. §3510). Amendment by Public Law 1988 —Pub. L. 100–690, which directed amendment of rule by  inserting “a” before “party which is not a natural person.”, could not  be executed because the words “party which is not a natural person.” did  not appear. However, the word “a” was inserted by the intervening  amendment by the Court by order dated Apr. 25, 1988, eff. Nov. 1, 1988. Committee Notes on Rules—2011 Amendment The language of Rule 615 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.