Rule 613. Witness’s Prior Statement(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).
Notes
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Apr. 26, 2011, eff. Dec. 1, 2011.)
Notes of Advisory Committee on Proposed Rules
Subdivision (a). The Queen's Case, 2 Br. & B. 284, 129 Eng. Rep. 976 (1820), laid down the requirement that a cross-examiner, prior to questioning the witness about his own prior statement in writing, must first show it to the witness. Abolished by statute in the country of its origin, the requirement nevertheless gained currency in the United States. The rule abolishes this useless impediment, to cross-examination. Ladd, Some Observations on Credibility: Impeachment of Witnesses, 52 Cornell L.Q. 239, 246–247 (1967); McCormick §28; 4 Wigmore §§1259–1260. Both oral and written statements are included.
The provision for disclosure to counsel is designed to protect against unwarranted insinuations that a statement has been made when the fact is to the contrary.
The rule does not defeat the application of Rule 1002 relating to production of the original when the contents of a writing are sought to be proved. Nor does it defeat the application of Rule 26(b)(3) of the Rules of Civil Procedure, as revised, entitling a person on request to a copy of his own statement, though the operation of the latter may be suspended temporarily.
Subdivision (b). The familiar foundation requirement that an impeaching statement first be shown to the witness before it can be proved by extrinsic evidence is preserved but with some modifications. See Ladd, Some Observations on Credibility: Impeachment of Witnesses, 52 Cornell L.Q. 239, 247 (1967). The traditional insistence that the attention of the witness be directed to the statement on cross-examination is relaxed in favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine on the statement, with no specification of any particular time or sequence. Under this procedure, several collusive witnesses can be examined before disclosure of a joint prior inconsistent statement. See Comment to California Evidence Code §770. Also, dangers of oversight are reduced.
See McCormick §37, p. 68.
In order to allow for such eventualities as the witness becoming unavailable by the time the statement is discovered, a measure of discretion is conferred upon the judge. Similar provisions are found in California Evidence Code §770 and New Jersey Evidence Rule 22(b).
Under principles of expression unius the rule does not apply to impeachment by evidence of prior inconsistent conduct. The use of inconsistent statements to impeach a hearsay declaration is treated in Rule 806.
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are 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—2011 Amendment
The language of Rule 613 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 609. Impeachment by Evidence of a Criminal Conviction(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement. (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if: (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use. (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if: (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if: (1) it is offered in a criminal case; (2) the adjudication was of a witness other than the defendant; (3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and (4) admitting the evidence is necessary to fairly determine guilt or innocence. (e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat.  1935; Mar. 2, 1987, eff. Oct. 1, 1987; Jan. 26, 1990, eff. Dec. 1, 1990;  Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules As a means of impeachment, evidence of conviction  of crime is significant only because it stands as proof of the  commission of the underlying criminal act. There is little dissent from  the general proposition that at least some crimes are relevant to  credibility but much disagreement among the cases and commentators about  which crimes are usable for this purpose. See McCormick §43; 2 Wright,  Federal Practice and Procedure; Criminal §416 (1969). The weight of  traditional authority has been to allow use of felonies generally,  without regard to the nature of the particular offense, and of crimen falsi without regard to the grade of the offense. This  is the view accepted by Congress in the 1970 amendment of §14–305 of the  District of Columbia Code, P.L. 91–358, 84 Stat. 473. Uniform Rule 21  and Model Code Rule 106 permit only crimes involving “dishonesty or  false statement.” Others have thought that the trial judge should have  discretion to exclude convictions if the probative value of the evidence  of the crime is substantially outweighed by the danger of unfair  prejudice. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965); McGowan, Impeachment of Criminal Defendants by Prior  Convictions, 1970 Law & Soc. Order 1. Whatever may be the merits of  those views, this rule is drafted to accord with the Congressional  policy manifested in the 1970 legislation. The proposed rule incorporates certain basic  safeguards, in terms applicable to all witnesses but of particular  significance to an accused who elects to testify. These protections  include the imposition of definite time limitations, giving effect to  demonstrated rehabilitation, and generally excluding juvenile  adjudications. Subdivision (a). For purposes of impeachment, crimes are  divided into two categories by the rule: (1) those of what is generally  regarded as felony grade, without particular regard to the nature of the  offense, and (2) those involving dishonesty or false statement, without  regard to the grade of the offense. Provable convictions are not  limited to violations of federal law. By reason of our constitutional  structure, the federal catalog of crimes is far from being a complete  one, and resort must be had to the laws of the states for the  specification of many crimes. For example, simple theft as compared with  theft from interstate commerce. Other instances of borrowing are the  Assimilative Crimes Act, making the state law of crimes applicable to  the special territorial and maritime jurisdiction of the United States, 18 U.S.C. §13,  and the provision of the Judicial Code disqualifying persons as jurors  on the grounds of state as well as federal convictions, 28 U.S.C. §1865.  For evaluation of the crime in terms of seriousness, reference is made  to the congressional measurement of felony (subject to imprisonment in  excess of one year) rather than adopting state definitions which vary  considerably. See 28 U.S.C. §1865, supra, disqualifying jurors for conviction in state or federal court of crime punishable by imprisonment for more than one year. Subdivision (b). Few statutes recognize a time limit on  impeachment by evidence of conviction. However, practical considerations  of fairness and relevancy demand that some boundary be recognized. See  Ladd, Credibility Tests—Current Trends, 89 U.Pa.L.Rev. 166, 176–177  (1940). This portion of the rule is derived from the proposal advanced  in Recommendation Proposing in Evidence Code, §788(5), p. 142, Cal.Law  Rev.Comm'n (1965), though not adopted. See California Evidence Code  §788. Subdivision (c). A pardon or its equivalent granted solely for  the purpose of restoring civil rights lost by virtue of a conviction has  no relevance to an inquiry into character. If, however, the pardon or  other proceeding is hinged upon a showing of rehabilitation the  situation is otherwise. The result under the rule is to render the  conviction inadmissible. The alternative of allowing in evidence both  the conviction and the rehabilitation has not been adopted for reasons  of policy, economy of time, and difficulties of evaluation. A similar provision is contained in California  Evidence Code §788. Cf. A.L.I. Model Penal Code, Proposed Official Draft  §306.6(3)(e) (1962), and discussion in A.L.I. Proceedings 310 (1961). Pardons based on innocence have the effect, of course, of nullifying the conviction ab initio. Subdivision (d). The prevailing view has been that a juvenile adjudication is not usable for impeachment. Thomas v. United States, 74 App.D.C. 167, 121 F.2d 905 (1941); Cotton v. United States, 355 F.2d 480 (10th Cir. 1966). This conclusion was based upon a variety of  circumstances. By virtue of its informality, frequently diminished  quantum of required proof, and other departures from accepted standards  for criminal trials under the theory of parens patriae, the juvenile adjudication was considered to lack the precision and general probative value of the criminal conviction. While In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), no doubt eliminates these  characteristics insofar as objectionable, other obstacles remain.  Practical problems of administration are raised by the common provisions  in juvenile legislation that records be kept confidential and that they  be destroyed after a short time. While Gault was skeptical as to the realities of confidentiality of  juvenile records, it also saw no constitutional obstacles to  improvement. 387 U.S. at 25, 87 S.Ct. 1428. See also Note, Rights and  Rehabilitation in the Juvenile Courts, 67 Colum.L.Rev. 281, 289 (1967).  In addition, policy considerations much akin to those which dictate  exclusion of adult convictions after rehabilitation has been established  strongly suggest a rule of excluding juvenile adjudications.  Admittedly, however, the rehabilitative process may in a given case be a  demonstrated failure, or the strategic importance of a given witness  may be so great as to require the overriding of general policy in the  interests of particular justice. See Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). Wigmore was outspoken in his  condemnation of the disallowance of juvenile adjudications to impeach,  especially when the witness is the complainant in a case of molesting a  minor. 1 Wigmore §196; 3 Id. §§924a, 980. The rule recognizes discretion in the judge to  effect an accommodation among these various factors by departing from  the general principle of exclusion. In deference to the general pattern  and policy of juvenile statutes, however, no discretion is accorded when  the witness is the accused in a criminal case. Subdivision (e). The presumption of correctness which ought to  attend judicial proceedings supports the position that pendency of an  appeal does not preclude use of a conviction for impeachment. United States v. Empire Packing Co., 174 F.2d 16 (7th Cir. 1949), cert. denied 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758; Bloch v. United States, 226 F.2d 185 (9th Cir. 1955), cert. denied 350 U.S. 948, 76 S.Ct. 323, 100 L.Ed. 826 and 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910; and see Newman v. United States, 331 F.2d 968 (8th Cir. 1964), Contra, Campbell v. United States, 85 U.S.App.D.C. 133, 176  F.2d 45 (1949). The pendency of an appeal is, however, a qualifying  circumstance properly considerable. Notes of Committee on the Judiciary, House Report No. 93–650 Rule 609(a) as submitted by the Court was modeled after Section 133(a) of Public Law 91–358, 14 D.C. Code 305(b)(1), enacted in 1970. The Rule provided that: For the purpose of attacking the credibility of a  witness, evidence that he has been convicted of a crime is admissible  but only if the crime (1) was punishable by death or imprisonment in  excess of one year under the law under which he was convicted or (2)  involved dishonesty or false statement regardless of the punishment. As reported to the Committee by the Subcommittee, Rule 609(a) was amended to read as follows: For the purpose of attacking the credibility of  a witness, evidence that he has been convicted of a crime is admissible  only if the crime (1) was punishable by death or imprisonment in excess  of one year, unless the court determines that the danger of unfair  prejudice outweighs the probative value of the evidence of the  conviction, or (2) involved dishonesty or false statement. In full committee, the provision was amended to  permit attack upon the credibility of a witness by prior conviction only  if the prior crime involved dishonesty or false statement. While  recognizing that the prevailing doctrine in the federal courts and in  most States allows a witness to be impeached by evidence of prior felony  convictions without restriction as to type, the Committee was of the  view that, because of the danger of unfair prejudice in such practice  and the deterrent effect upon an accused who might wish to testify, and  even upon a witness who was not the accused, cross-examination by  evidence of prior conviction should be limited to those kinds of  convictions bearing directly on credibility, i.e., crimes involving dishonesty or false statement. Rule 609(b) as submitted by the Court was modeled after Section 133(a) of Public Law 91–358, 14 D.C. Code 305(b)(2)(B), enacted in 1970. The Rule provided: Evidence of a conviction under this rule is not  admissible if a period of more than ten years has elapsed since the  date of the release of the witness from confinement imposed for his most  recent conviction, or the expiration of the period of his parole,  probation, or sentence granted or imposed with respect to his most  recent conviction, whichever is the later date. Under this formulation, a witness’ entire  past record of criminal convictions could be used for impeachment  (provided the conviction met the standard of subdivision (a)), if the  witness had been most recently released from confinement, or the period  of his parole or probation had expired, within ten years of the  conviction. The Committee amended the Rule to read in the text  of the 1971 Advisory Committee version to provide that upon the  expiration of ten years from the date of a conviction of a witness, or  of his release from confinement for that offense, that conviction may no  longer be used for impeachment. The Committee was of the view that  after ten years following a person's release from confinement (or from  the date of his conviction) the probative value of the conviction with  respect to that person's credibility diminished to a point where it  should no longer be admissible. Rule 609(c) as submitted by the Court provided in  part that evidence of a witness’ prior conviction is not admissible to  attack his credibility if the conviction was the subject of a pardon,  annulment, or other equivalent procedure, based on a showing of  rehabilitation, and the witness has not been convicted of a subsequent  crime. The Committee amended the Rule to provide that the “subsequent  crime” must have been “punishable by death or imprisonment in excess of  one year”, on the ground that a subsequent conviction of an offense not a  felony is insufficient to rebut the finding that the witness has been  rehabilitated. The Committee also intends that the words “based on a  finding of the rehabilitation of the person convicted” apply not only to  “certificate of rehabilitation, or other equivalent procedure,” but  also to “pardon” and “annulment.” Notes of Committee on the Judiciary, Senate Report No. 93–1277 As proposed by the Supreme Court, the rule would  allow the use of prior convictions to impeach if the crime was a felony  or a misdemeanor if the misdemeanor involved dishonesty or false  statement. As modified by the House, the rule would admit prior  convictions for impeachment purposes only if the offense, whether felony  or misdemeanor, involved dishonesty or false statement. The committee has adopted a modified version of the  House-passed rule. In your committee's view, the danger of unfair  prejudice is far greater when the accused, as opposed to other  witnesses, testifies, because the jury may be prejudiced not merely on  the question of credibility but also on the ultimate question of guilt  or innocence. Therefore, with respect to defendants, the committee  agreed with the House limitation that only offenses involving false  statement or dishonesty may be used. By that phrase, the committee means  crimes such as perjury or subordination of perjury, false statement,  criminal fraud, embezzlement or false pretense, or any other offense, in  the nature of crimen falsi the commission of which involves some  element of untruthfulness, deceit, or falsification bearing on the  accused's propensity to testify truthfully. With respect to other witnesses, in addition to any  prior conviction involving false statement or dishonesty, any other  felony may be used to impeach if, and only if, the court finds that the  probative value of such evidence outweighs its prejudicial effect  against the party offering that witness. Notwithstanding this provision, proof of any prior  offense otherwise admissible under rule 404 could still be offered for  the purposes sanctioned by that rule. Furthermore, the committee intends  that notwithstanding this rule, a defendant's misrepresentation  regarding the existence or nature of prior convictions may be met by  rebuttal evidence, including the record of such prior convictions.  Similarly, such records may be offered to rebut representations made by  the defendant regarding his attitude toward or willingness to commit a  general category of offense, although denials or other representations  by the defendant regarding the specific conduct which forms the basis of  the charge against him shall not make prior convictions admissible to  rebut such statement. In regard to either type of representation, of  course, prior convictions may be offered in rebuttal only if the  defendant's statement is made in response to defense counsel's questions  or is made gratuitously in the course of cross-examination. Prior  convictions may not be offered as rebuttal evidence if the prosecution  has sought to circumvent the purpose of this rule by asking questions  which elicit such representations from the defendant. One other clarifying amendment has been added to  this subsection, that is, to provide that the admissibility of evidence  of a prior conviction is permitted only upon cross-examination of a  witness. It is not admissible if a person does not testify. It is to be  understood, however, that a court record of a prior conviction is  admissible to prove that conviction if the witness has forgotten or  denies its existence. Although convictions over ten years old generally  do not have much probative value, there may be exceptional circumstances  under which the conviction substantially bears on the credibility of  the witness. Rather than exclude all convictions over 10 years old, the  committee adopted an amendment in the form of a final clause to the  section granting the court discretion to admit convictions over 10 years  old, but only upon a determination by the court that the probative  value of the conviction supported by specific facts and circumstances,  substantially outweighs its prejudicial effect. It is intended that convictions over 10 years old  will be admitted very rarely and only in exceptional circumstances. The  rules provide that the decision be supported by specific facts and  circumstances thus requiring the court to make specific findings on the  record as to the particular facts and circumstances it has considered in  determining that the probative value of the conviction substantially  outweighs its prejudicial impact. It is expected that, in fairness, the  court will give the party against whom the conviction is introduced a  full and adequate opportunity to contest its admission. Notes of Conference Committee, House Report No. 93–1597 Rule 609 defines when a party may use evidence of a  prior conviction in order to impeach a witness. The Senate amendments  make changes in two subsections of Rule 609. The House bill provides that the credibility of a  witness can be attacked by proof of prior conviction of a crime only if  the crime involves dishonesty or false statement. The Senate amendment  provides that a witness’ credibility may be attacked if the crime (1)  was punishable by death or imprisonment in excess of one year under the  law under which he was convicted or (2) involves dishonesty or false  statement, regardless of the punishment. The Conference adopts the Senate amendment with an  amendment. The Conference amendment provides that the credibility of a  witness, whether a defendant or someone else, may be attacked by proof  of a prior conviction but only if the crime: (1) was punishable by death  or imprisonment in excess of one year under the law under which he was  convicted and the court determines that the probative value of the  conviction outweighs its prejudicial effect to the defendant; or (2)  involved dishonesty or false statement regardless of the punishment. By the phrase “dishonesty and false statement” the  Conference means crimes such as perjury or subornation of perjury, false  statement, criminal fraud, embezzlement, or false pretense, or any  other offense in the nature of crimen falsi, the commission of which  involves some element of deceit, untruthfulness, or falsification  bearing on the accused's propensity to testify truthfully. The admission of prior convictions involving  dishonesty and false statement is not within the discretion of the  Court. Such convictions are peculiarly probative of credibility and,  under this rule, are always to be admitted. Thus, judicial discretion  granted with respect to the admissibility of other prior convictions is  not applicable to those involving dishonesty or false statement. With regard to the discretionary standard  established by paragraph (1) of rule 609(a), the Conference determined  that the prejudicial effect to be weighed against the probative value of  the conviction is specifically the prejudicial effect to the defendant. The danger of prejudice to a witness other  than the defendant (such as injury to the witness’ reputation in his  community) was considered and rejected by the Conference as an element  to be weighed in determining admissibility. It was the judgment of the  Conference that the danger of prejudice to a nondefendant witness is  outweighed by the need for the trier of fact to have as much relevant  evidence on the issue of credibility as possible. Such evidence should  only be excluded where it presents a danger of improperly influencing  the outcome of the trial by persuading the trier of fact to convict the  defendant on the basis of his prior criminal record. The House bill provides in subsection (b) that  evidence of conviction of a crime may not be used for impeachment  purposes under subsection (a) if more than ten years have elapsed since  the date of the conviction or the date the witness was released from  confinement imposed for the conviction, whichever is later. The Senate  amendment permits the use of convictions older than ten years, if the  court determines, in the interests of justice, that the probative value  of the conviction, supported by specific facts and circumstances,  substantially outweighs its prejudicial effect. The Conference adopts the Senate amendment with an  amendment requiring notice by a party that he intends to request that  the court allow him to use a conviction older than ten years. The  Conferees anticipate that a written notice, in order to give the  adversary a fair opportunity to contest the use of the evidence, will  ordinarily include such information as the date of the conviction, the  jurisdiction, and the offense or statute involved. In order to eliminate  the possibility that the flexibility of this provision may impair the  ability of a party-opponent to prepare for trial, the Conferees intend  that the notice provision operate to avoid surprise. Notes of Advisory Committee on Rules—1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules—1990 Amendment The amendment to Rule 609(a) makes two changes in  the rule. The first change removes from the rule the limitation that the  conviction may only be elicited during cross-examination, a limitation  that virtually every circuit has found to be inapplicable. It is common  for witnesses to reveal on direct examination their convictions to  “remove the sting” of the impeachment. See e.g., United States v. Bad Cob, 560 F.2d 877 (8th Cir. 1977). The amendment does not contemplate that a court will  necessarily permit proof of prior convictions through testimony, which  might be time-consuming and more prejudicial than proof through a  written record. Rules 403 and 611(a) provide sufficient authority for  the court to protect against unfair or disruptive methods of proof. The second change effected by the amendment  resolves an ambiguity as to the relationship of Rules 609 and 403 with  respect to impeachment of witnesses other than the criminal defendant. See, Green v. Bock Laundry Machine Co., 109 S. Ct. 1981, 490 U.S. 504 (1989).  The amendment does not disturb the special balancing test for the  criminal defendant who chooses to testify. Thus, the rule recognizes  that, in virtually every case in which prior convictions are used to  impeach the testifying defendant, the defendant faces a unique risk of  prejudice— i.e., the danger that convictions that would be excluded under Fed.R.Evid. 404 will be misused by a jury as propensity evidence despite their  introduction solely for impeachment purposes. Although the rule does not  forbid all use of convictions to impeach a defendant, it requires that  the government show that the probative value of convictions as  impeachment evidence outweighs their prejudicial effect. Prior to the amendment, the rule appeared to give  the defendant the benefit of the special balancing test when defense  witnesses other than the defendant were called to testify. In practice,  however, the concern about unfairness to the defendant is most acute  when the defendant's own convictions are offered as evidence. Almost all  of the decided cases concern this type of impeachment, and the  amendment does not deprive the defendant of any meaningful protection,  since Rule 403 now clearly protects against unfair impeachment of any  defense witness other than the defendant. There are cases in which a  defendant might be prejudiced when a defense witness is impeached. Such  cases may arise, for example, when the witness bears a special  relationship to the defendant such that the defendant is likely to  suffer some spill-over effect from impeachment of the witness. The amendment also protects other litigants from  unfair impeachment of their witnesses. The danger of prejudice from the  use of prior convictions is not confined to criminal defendants.  Although the danger that prior convictions will be misused as character  evidence is particularly acute when the defendant is impeached, the  danger exists in other situations as well. The amendment reflects the  view that it is desirable to protect all litigants from the unfair use  of prior convictions, and that the ordinary balancing test of Rule 403,  which provides that evidence shall not be excluded unless its  prejudicial effect substantially outweighs its probative value, is  appropriate for assessing the admissibility of prior convictions for  impeachment of any witness other than a criminal defendant. The amendment reflects a judgment that decisions  interpreting Rule 609(a) as requiring a trial court to admit convictions  in civil cases that have little, if anything, to do with credibility  reach undesirable results. See, e.g., Diggs v. Lyons, 741 F.2d 577 (3d Cir. 1984), cert. denied, 105 S. Ct. 2157 (1985). The amendment provides  the same protection against unfair prejudice arising from prior  convictions used for impeachment purposes as the rules provide for other  evidence. The amendment finds support in decided cases. See, e.g., Petty v. Ideco, 761 F.2d 1146 (5th Cir. 1985); Czaka v. Hickman, 703 F.2d 317 (8th Cir. 1983). Fewer decided cases address the question whether  Rule 609(a) provides any protection against unduly prejudicial prior  convictions used to impeach government witnesses. Some courts have read  Rule 609(a) as giving the government no protection for its witnesses. See, e.g., United States v. Thorne, 547 F.2d 56 (8th Cir. 1976); United States v. Nevitt, 563 F.2d 406 (9th Cir. 1977), cert. denied, 444 U.S. 847 (1979).  This approach also is rejected by the amendment. There are cases in  which impeachment of government witnesses with prior convictions that  have little, if anything, to do with credibility may result in unfair  prejudice to the government's interest in a fair trial and unnecessary  embarrassment to a witness. Fed.R.Evid. 412 already recognizes this and excluded certain evidence of past sexual  behavior in the context of prosecutions for sexual assaults. The amendment applies the general balancing test of  Rule 403 to protect all litigants against unfair impeachment of  witnesses. The balancing test protects civil litigants, the government  in criminal cases, and the defendant in a criminal case who calls other  witnesses. The amendment addresses prior convictions offered under Rule  609, not for other purposes, and does not run afoul, therefore, of Davis v. Alaska, 415 U.S. 308 (1974). Davis involved the use of a prior juvenile adjudication not to  prove a past law violation, but to prove bias. The defendant in a  criminal case has the right to demonstrate the bias of a witness and to  be assured a fair trial, but not to unduly prejudice a trier of fact. See generally Rule 412. In any case in which the trial court  believes that confrontation rights require admission of impeachment  evidence, obviously the Constitution would take precedence over the  rule. The probability that prior convictions of an  ordinary government witness will be unduly prejudicial is low in most  criminal cases. Since the behavior of the witness is not the issue in  dispute in most cases, there is little chance that the trier of fact  will misuse the convictions offered as impeachment evidence as  propensity evidence. Thus, trial courts will be skeptical when the  government objects to impeachment of its witnesses with prior  convictions. Only when the government is able to point to a real danger  of prejudice that is sufficient to outweigh substantially the probative  value of the conviction for impeachment purposes will the conviction be  excluded. The amendment continues to divide subdivision (a)  into subsections (1) and (2) thus facilitating retrieval under current  computerized research programs which distinguish the two provisions. The  Committee recommended no substantive change in subdivision (a)(2), even  though some cases raise a concern about the proper interpretation of  the words “dishonesty or false statement.” These words were used but not  explained in the original Advisory Committee Note accompanying Rule  609. Congress extensively debated the rule, and the Report of the House  and Senate Conference Committee states that “[b]y the phrase ‘dishonesty  and false statement,’ the Conference means crimes such as perjury,  subornation of perjury, false statement, criminal fraud, embezzlement,  or false pretense, or any other offense in the nature of crimen falsi, commission of which involves some element of  deceit, untruthfulness, or falsification bearing on the accused's  propensity to testify truthfully.” The Advisory Committee concluded that  the Conference Report provides sufficient guidance to trial courts and  that no amendment is necessary, notwithstanding some decisions that take  an unduly broad view of “dishonesty,” admitting convictions such as for  bank robbery or bank larceny. Subsection (a)(2) continues to apply to  any witness, including a criminal defendant. Finally, the Committee determined that it was  unnecessary to add to the rule language stating that, when a prior  conviction is offered under Rule 609, the trial court is to consider the  probative value of the prior conviction for impeachment, not for other purposes. The Committee  concluded that the title of the rule, its first sentence, and its  placement among the impeachment rules clearly establish that evidence  offered under Rule 609 is offered only for purposes of impeachment. Committee Notes on Rules—2006 Amendment The amendment provides that Rule 609(a)(2) mandates  the admission of evidence of a conviction only when the conviction  required the proof of (or in the case of a guilty plea, the admission  of) an act of dishonesty or false statement. Evidence of all other  convictions is inadmissible under this subsection, irrespective of  whether the witness exhibited dishonesty or made a false statement in  the process of the commission of the crime of conviction. Thus, evidence  that a witness was convicted for a crime of violence, such as murder,  is not admissible under Rule 609(a)(2), even if the witness acted  deceitfully in the course of committing the crime. The amendment is meant to give effect to the  legislative intent to limit the convictions that are to be automatically  admitted under subdivision (a)(2). The Conference Committee provided  that by “dishonesty and false statement” it meant “crimes such as  perjury, subornation of perjury, false statement, criminal fraud,  embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of  deceit, untruthfulness, or falsification bearing on the [witness's]  propensity to testify truthfully.” Historically, offenses classified as crimina falsi have included only those crimes in which the ultimate criminal act was itself an act of deceit. See Green, Deceit and the Classification of Crimes: Federal Rule of Evidence 609 (a)(2) and the Origins of Crimen Falsi, 90 J. Crim. L. & Criminology 1087 (2000). Evidence of crimes in the nature of crimina falsi must be admitted under Rule 609(a)(2), regardless  of how such crimes are specifically charged. For example, evidence that  a witness was convicted of making a false claim to a federal agent is  admissible under this subdivision regardless of whether the crime was  charged under a section that expressly references deceit (e.g., 18 U.S.C. §1001, Material Misrepresentation to the Federal Government) or a section that does not (e.g., 18 U.S.C. §1503, Obstruction of Justice). The amendment requires that the proponent have  ready proof that the conviction required the factfinder to find, or the  defendant to admit, an act of dishonesty or false statement. Ordinarily,  the statutory elements of the crime will indicate whether it is one of  dishonesty or false statement. Where the deceitful nature of the crime  is not apparent from the statute and the face of the judgment—as, for  example, where the conviction simply records a finding of guilt for a  statutory offense that does not reference deceit expressly—a proponent  may offer information such as an indictment, a statement of admitted  facts, or jury instructions to show that the factfinder had to find, or  the defendant had to admit, an act of dishonesty or false statement in  order for the witness to have been convicted. Cf. Taylor v. United States, 495 U.S. 575, 602 (1990) (providing that a trial court may look to a charging instrument or jury  instructions to ascertain the nature of a prior offense where the  statute is insufficiently clear on its face); Shepard v. United States, 125 S.Ct. 1254 (2005) (the inquiry to  determine whether a guilty plea to a crime defined by a nongeneric  statute necessarily admitted elements of the generic offense was limited  to the charging document's terms, the terms of a plea agreement or  transcript of colloquy between judge and defendant in which the factual  basis for the plea was confirmed by the defendant, or a comparable  judicial record). But the amendment does not contemplate a “mini-trial”  in which the court plumbs the record of the previous proceeding to  determine whether the crime was in the nature of crimen falsi. The amendment also substitutes the term “character  for truthfulness” for the term “credibility” in the first sentence of  the Rule. The limitations of Rule 609 are not applicable if a conviction  is admitted for a purpose other than to prove the witness's character  for untruthfulness. See, e.g., United States v. Lopez, 979 F.2d 1024 (5th Cir. 1992) (Rule 609 was not applicable where the conviction was  offered for purposes of contradiction). The use of the term  “credibility” in subdivision (d) is retained, however, as that  subdivision is intended to govern the use of a juvenile adjudication for  any type of impeachment. Changes Made After Publication and Comments. The language of  the proposed amendment was changed to provide that convictions are  automatically admitted only if it readily can be determined that the  elements of the crime, as proved or admitted, required an act of  dishonesty or false statement by the witness. Committee Notes on Rules—2011 Amendment The language of Rule 609 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 408. Compromise Offers and Negotiations(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Notes
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1933; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 26, 2011, eff. Dec. 1, 2011.)
Notes of Advisory Committee on Proposed Rules
As a matter of general agreement, evidence of an offer-to compromise a claim is not receivable in evidence as an admission of, as the case may be, the validity or invalidity of the claim. As with evidence of subsequent remedial measures, dealt with in Rule 407, exclusion may be based on two grounds. (1) The evidence is irrelevant, since the offer may be motivated by a desire for peace rather than from any concession of weakness of position. The validity of this position will vary as the amount of the offer varies in relation to the size of the claim and may also be influenced by other circumstances. (2) a more consistently impressive ground is promotion of the public policy favoring the compromise and settlement of disputes. McCormick §§76, 251. While the rule is ordinarily phrased in terms of offers of compromise, it is apparent that a similar attitude must be taken with respect to completed compromises when offered against a party thereto. This latter situation will not, of course, ordinarily occur except when a party to the present litigation has compromised with a third person.
The same policy underlies the provision of Rule 68 of the Federal Rules of Civil Procedure that evidence of an unaccepted offer of judgment is not admissible except in a proceeding to determine costs.
The practical value of the common law rule has been greatly diminished by its inapplicability to admissions of fact, even though made in the course of compromise negotiations, unless hypothetical, stated to be “without prejudice,” or so connected with the offer as to be inseparable from it. McCormick §251, pp. 540–541. An inevitable effect is to inhibit freedom of communication with respect to compromise, even among lawyers. Another effect is the generation of controversy over whether a given statement falls within or without the protected area. These considerations account for the expansion of the rule herewith to include evidence of conduct or statements made in compromise negotiations, as well as the offer or completed compromise itself. For similar provisions see California Evidence Code §§1152, 1154.
The policy considerations which underlie the rule do not come into play when the effort is to induce a creditor to settle an admittedly due amount for a lessor sum. McCormick §251, p. 540. Hence the rule requires that the claim be disputed as to either validity or amount.
The final sentence of the rule serves to point out some limitations upon its applicability. Since the rule excludes only when the purpose is proving the validity or invalidity of the claim or its amount, an offer for another purpose is not within the rule. The illustrative situations mentioned in the rule are supported by the authorities. As to proving bias or prejudice of a witness, see Annot., 161 A.L.R. 395, contra, Fenberg v. Rosenthal, 348 Ill. App. 510, 109 N.E.2d 402 (1952), and negativing a contention of lack of due diligence in presenting a claim, 4 Wigmore §1061. An effort to “buy off” the prosecution or a prosecuting witness in a criminal case is not within the policy of the rule of exclusion. McCormick §251, p. 542.
For other rules of similar import, see Uniform Rules 52 and 53; California Evidence Code §1152, 1154; Kansas Code of Civil Procedure §§60–452, 60–453; New Jersey Evidence Rules 52 and 53.
Notes of Committee on the Judiciary, House Report No. 93–650
Under existing federal law evidence of conduct and statements made in compromise negotiations is admissible in subsequent litigation between the parties. The second sentence of Rule 408 as submitted by the Supreme Court proposed to reverse that doctrine in the interest of further promoting non-judicial settlement of disputes. Some agencies of government expressed the view that the Court formulation was likely to impede rather than assist efforts to achieve settlement of disputes. For one thing, it is not always easy to tell when compromise negotiations begin, and informal dealings end. Also, parties dealing with government agencies would be reluctant to furnish factual information at preliminary meetings; they would wait until “compromise negotiations” began and thus hopefully effect an immunity for themselves with respect to the evidence supplied. In light of these considerations, the Committee recast the Rule so that admissions of liability or opinions given during compromise negotiations continue inadmissible, but evidence of unqualified factual assertions is admissible. The latter aspect of the Rule is drafted, however, so as to preserve other possible objections to the introduction of such evidence. The Committee intends no modification of current law whereby a party may protect himself from future use of his statements by couching them in hypothetical conditional form.
Notes of Committee on the Judiciary, Senate Report No. 93–1277
This rule as reported makes evidence of settlement or attempted settlement of a disputed claim inadmissible when offered as an admission of liability or the amount of liability. The purpose of this rule is to encourage settlements which would be discouraged if such evidence were admissible.
Under present law, in most jurisdictions, statements of fact made during settlement negotiations, however, are excepted from this ban and are admissible. The only escape from admissibility of statements of fact made in a settlement negotiation is if the declarant or his representative expressly states that the statement is hypothetical in nature or is made without prejudice. Rule 408 as submitted by the Court reversed the traditional rule. It would have brought statements of fact within the ban and made them, as well as an offer of settlement, inadmissible.
The House amended the rule and would continue to make evidence of facts disclosed during compromise negotiations admissible. It thus reverted to the traditional rule. The House committee report states that the committee intends to preserve current law under which a party may protect himself by couching his statements in hypothetical form [See House Report No. 93–650 above]. The real impact of this amendment, however, is to deprive the rule of much of its salutary effect. The exception for factual admissions was believed by the Advisory Committee to hamper free communication between parties and thus to constitute an unjustifiable restraint upon efforts to negotiate settlements—the encouragement of which is the purpose of the rule. Further, by protecting hypothetically phrased statements, it constituted a preference for the sophisticated, and a trap for the unwary.
Three States which had adopted rules of evidence patterned after the proposed rules prescribed by the Supreme Court opted for versions of rule 408 identical with the Supreme Court draft with respect to the inadmissibility of conduct or statements made in compromise negotiations. [Nev. Rev. Stats. §48.105; N. Mex. Stats. Anno. (1973 Supp.) §20–4–408; West's Wis. Stats. Anno. (1973 Supp.) §904.08].
For these reasons, the committee has deleted the House amendment and restored the rule to the version submitted by the Supreme Court with one additional amendment. This amendment adds a sentence to insure that evidence, such as documents, is not rendered inadmissible merely because it is presented in the course of compromise negotiations if the evidence is otherwise discoverable. A party should not be able to immunize from admissibility documents otherwise discoverable merely by offering them in a compromise negotiation.
Notes of Conference Committee, House Report No. 93–1597
The House bill provides that evidence of admissions of liability or opinions given during compromise negotiations is not admissible, but that evidence of facts disclosed during compromise negotiations is not inadmissible by virtue of having been first disclosed in the compromise negotiations. The Senate amendment provides that evidence of conduct or statements made in compromise negotiations is not admissible. The Senate amendment also provides that the rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.
The House bill was drafted to meet the objection of executive agencies that under the rule as proposed by the Supreme Court, a party could present a fact during compromise negotiations and thereby prevent an opposing party from offering evidence of that fact at trial even though such evidence was obtained from independent sources. The Senate amendment expressly precludes this result.
The Conference adopts the Senate amendment.
Committee Notes on Rules—2006 Amendment
Rule 408 has been amended to settle some questions in the courts about the scope of the Rule, and to make it easier to read. First, the amendment provides that Rule 408 does not prohibit the introduction in a criminal case of statements or conduct during compromise negotiations regarding a civil dispute by a government regulatory, investigative, or enforcement agency. See, e.g., United States v. Prewitt, 34 F.3d 436, 439 (7th Cir. 1994) (admissions of fault made in compromise of a civil securities enforcement action were admissible against the accused in a subsequent criminal action for mail fraud). Where an individual makes a statement in the presence of government agents, its subsequent admission in a criminal case should not be unexpected. The individual can seek to protect against subsequent disclosure through negotiation and agreement with the civil regulator or an attorney for the government.
Statements made in compromise negotiations of a claim by a government agency may be excluded in criminal cases where the circumstances so warrant under Rule 403. For example, if an individual was unrepresented at the time the statement was made in a civil enforcement proceeding, its probative value in a subsequent criminal case may be minimal. But there is no absolute exclusion imposed by Rule 408.
In contrast, statements made during compromise negotiations of other disputed claims are not admissible in subsequent criminal litigation, when offered to prove liability for, invalidity of, or amount of those claims. When private parties enter into compromise negotiations they cannot protect against the subsequent use of statements in criminal cases by way of private ordering. The inability to guarantee protection against subsequent use could lead to parties refusing to admit fault, even if by doing so they could favorably settle the private matter. Such a chill on settlement negotiations would be contrary to the policy of Rule 408.
The amendment distinguishes statements and conduct (such as a direct admission of fault) made in compromise negotiations of a civil claim by a government agency from an offer or acceptance of a compromise of such a claim. An offer or acceptance of a compromise of any civil claim is excluded under the Rule if offered against the defendant as an admission of fault. In that case, the predicate for the evidence would be that the defendant, by compromising with the government agency, has admitted the validity and amount of the civil claim, and that this admission has sufficient probative value to be considered as evidence of guilt. But unlike a direct statement of fault, an offer or acceptance of a compromise is not very probative of the defendant's guilt. Moreover, admitting such an offer or acceptance could deter a defendant from settling a civil regulatory action, for fear of evidentiary use in a subsequent criminal action. See, e.g., Fishman, Jones on Evidence, Civil and Criminal, §22:16 at 199, n.83 (7th ed. 2000) (“A target of a potential criminal investigation may be unwilling to settle civil claims against him if by doing so he increases the risk of prosecution and conviction.”).
The amendment retains the language of the original rule that bars compromise evidence only when offered as evidence of the “validity,” “invalidity,” or “amount” of the disputed claim. The intent is to retain the extensive case law finding Rule 408 inapplicable when compromise evidence is offered for a purpose other than to prove the validity, invalidity, or amount of a disputed claim. See, e.g., Athey v. Farmers Ins. Exchange, 234 F.3d 357 (8th Cir. 2000) (evidence of settlement offer by insurer was properly admitted to prove insurer's bad faith); Coakley & Williams v. Structural Concrete Equip., 973 F.2d 349 (4th Cir. 1992) (evidence of settlement is not precluded by Rule 408 where offered to prove a party's intent with respect to the scope of a release); Cates v. Morgan Portable Bldg. Corp., 708 F.2d 683 (7th Cir. 1985) (Rule 408 does not bar evidence of a settlement when offered to prove a breach of the settlement agreement, as the purpose of the evidence is to prove the fact of settlement as opposed to the validity or amount of the underlying claim); Uforma/Shelby Bus. Forms, Inc. v. NLRB, 111 F.3d 1284 (6th Cir. 1997) (threats made in settlement negotiations were admissible; Rule 408 is inapplicable when the claim is based upon a wrong that is committed during the course of settlement negotiations). So for example, Rule 408 is inapplicable if offered to show that a party made fraudulent statements in order to settle a litigation.
The amendment does not affect the case law providing that Rule 408 is inapplicable when evidence of the compromise is offered to prove notice. See, e.g., United States v. Austin, 54 F.3d 394 (7th Cir. 1995) (no error to admit evidence of the defendant's settlement with the FTC, because it was offered to prove that the defendant was on notice that subsequent similar conduct was wrongful); Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987) (in a civil rights action alleging that an officer used excessive force, a prior settlement by the City of another brutality claim was properly admitted to prove that the City was on notice of aggressive behavior by police officers).
The amendment prohibits the use of statements made in settlement negotiations when offered to impeach by prior inconsistent statement or through contradiction. Such broad impeachment would tend to swallow the exclusionary rule and would impair the public policy of promoting settlements. See McCormick on Evidence at 186 (5th ed. 1999) (“Use of statements made in compromise negotiations to impeach the testimony of a party, which is not specifically treated in Rule 408, is fraught with danger of misuse of the statements to prove liability, threatens frank interchange of information during negotiations, and generally should not be permitted.”). See also EEOC v. Gear Petroleum, Inc., 948 F.2d 1542 (10th Cir. 1991) (letter sent as part of settlement negotiation cannot be used to impeach defense witnesses by way of contradiction or prior inconsistent statement; such broad impeachment would undermine the policy of encouraging uninhibited settlement negotiations).
The amendment makes clear that Rule 408 excludes compromise evidence even when a party seeks to admit its own settlement offer or statements made in settlement negotiations. If a party were to reveal its own statement or offer, this could itself reveal the fact that the adversary entered into settlement negotiations. The protections of Rule 408 cannot be waived unilaterally because the Rule, by definition, protects both parties from having the fact of negotiation disclosed to the jury. Moreover, proof of statements and offers made in settlement would often have to be made through the testimony of attorneys, leading to the risks and costs of disqualification. See generally Pierce v. F.R. Tripler & Co., 955 F.2d 820, 828 (2d Cir. 1992) (settlement offers are excluded under Rule 408 even if it is the offeror who seeks to admit them; noting that the “widespread admissibility of the substance of settlement offers could bring with it a rash of motions for disqualification of a party's chosen counsel who would likely become a witness at trial”).
The sentence of the Rule referring to evidence “otherwise discoverable” has been deleted as superfluous. See, e.g., Advisory Committee Note to Maine Rule of Evidence 408 (refusing to include the sentence in the Maine version of Rule 408 and noting that the sentence “seems to state what the law would be if it were omitted”); Advisory Committee Note to Wyoming Rule of Evidence 408 (refusing to include the sentence in Wyoming Rule 408 on the ground that it was “superfluous”). The intent of the sentence was to prevent a party from trying to immunize admissible information, such as a pre-existing document, through the pretense of disclosing it during compromise negotiations. See Ramada Development Co. v. Rauch, 644 F.2d 1097 (5th Cir. 1981). But even without the sentence, the Rule cannot be read to protect pre-existing information simply because it was presented to the adversary in compromise negotiations.
Changes Made After Publication and Comments. In response to public comment, the proposed amendment was changed to provide that statements and conduct during settlement negotiations are to be admissible in subsequent criminal litigation only when made during settlement discussions of a claim brought by a government regulatory agency. Stylistic changes were made in accordance with suggestions from the Style Subcommittee of the Standing Committee. The Committee Note was altered to accord with the change in the text, and also to clarify that fraudulent statements made during settlement negotiations are not protected by the Rule.
Committee Notes on Rules—2011 Amendment
The language of Rule 408 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.
Rule 408 previously provided that evidence was not excluded if offered for a purpose not explicitly prohibited by the Rule. To improve the language of the Rule, it now provides that the court may admit evidence if offered for a permissible purpose. There is no intent to change the process for admitting evidence covered by the Rule. It remains the case that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not barred by the Rule, its admissibility remains governed by the general principles of Rules 402, 403, 801, etc.


Rule 614. Court’s Calling or Examining a Witness(a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.
(b) Examining. The court may examine a witness regardless of who calls the witness.
(c) Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.
Notes
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1937; Apr. 26, 2011, eff. Dec. 1, 2011.)
Notes of Advisory Committee on Proposed Rules
Subdivision (a). While exercised more frequently in criminal than in civil cases, the authority of the judge to call witnesses is well established. McCormick §8, p. 14; Maguire, Weinstein, et al., Cases on Evidence 303–304 (5th ed. 1965); 9 Wigmore §2484. One reason for the practice, the old rule against impeaching one's own witness, no longer exists by virtue of Rule 607, supra. Other reasons remain, however, to justify the continuation of the practice of calling court's witnesses. The right to cross-examine, with all it implies, is assured. The tendency of juries to associate a witness with the party calling him, regardless of technical aspects of vouching, is avoided. And the judge is not imprisoned within the case as made by the parties.
Subdivision (b). The authority of the judge to question witnesses is also well established. McCormick §8, pp. 12–13; Maguire, Weinstein, et al., Cases on Evidence 737–739 (5th ed. 1965); 3 Wigmore §784. The authority is, of course, abused when the judge abandons his proper role and assumes that of advocate, but the manner in which interrogation should be conducted and the proper extent of its exercise are not susceptible of formulation in a rule. The omission in no sense precludes courts of review from continuing to reverse for abuse.
Subdivision (c). The provision relating to objections is designed to relieve counsel of the embarrassment attendant upon objecting to questions by the judge in the presence of the jury, while at the same time assuring that objections are made in apt time to afford the opportunity to take possible corrective measures. Compare the “automatic” objection feature of Rule 605 when the judge is called as a witness.
Committee Notes on Rules—2011 Amendment
The language of Rule 614 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 201. Judicial Notice of Adjudicative Facts(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact. (b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. (c) Taking Notice. The court: (1) may take judicial notice on its own; or (2) must take judicial notice if a party requests it and the court is supplied with the necessary information. (d) Timing. The court may take judicial notice at any stage of the proceeding. (e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety  of taking judicial notice and the nature of the fact to be noticed. If  the court takes judicial notice before notifying a party, the party,  on request, is still entitled to be heard. (f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the  noticed fact as conclusive. In a criminal case, the court must  instruct the jury that it may or may not accept the noticed fact as  conclusive. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1930; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules Subdivision (a).  This is the only evidence rule on the subject of judicial notice. It  deals only with judicial notice of “adjudicative” facts. No rule deals  with judicial notice of “legislative” facts. Judicial notice of matters  of foreign law is treated in Rule 44.1 of the Federal Rules of Civil Procedure and Rule 26.1 of the Federal Rules of Criminal Procedure. The  omission of any treatment of legislative facts results from fundamental  differences between adjudicative facts and legislative facts.  Adjudicative facts are simply the facts of the particular case.  Legislative facts, on the other hand, are those which have relevance to  legal reasoning and the lawmaking process, whether in the formulation of  a legal principle or ruling by a judge or court or in the enactment of a  legislative body. The terminology was coined by Professor Kenneth Davis  in his article An Approach to Problems of Evidence in the  Administrative Process, 55 Harv.L.Rev. 364, 404–407 (1942). The  following discussion draws extensively upon his writings. In addition,  see the same author's Judicial Notice, 55 Colum.L. Rev. 945 (1955);  Administrative Law Treatise, ch. 15 (1958); A System of Judicial Notice  Based on Fairness and Convenience, in Perspectives of Law 69 (1964). The  usual method of establishing adjudicative facts in through the  introduction of evidence, ordinarily consisting of the testimony of  witnesses. If particular facts are outside of reasonable controversy,  this process is dispensed with as unnecessary. A high degree of  indisputability is the essential prerequisite. Legislative facts are quite different. As Professor Davis says: “My  opinion is that judge-made law would stop growing if judges, in  thinking about questions of law and policy, were forbidden to take into  account the facts they believe, as distinguished from facts which are  ‘clearly * * * within the domain of the indisputable.’ Facts  most needed in thinking about difficult problems of law and policy have a  way of being outside the domain of the clearly indisputable.” A System  of Judicial Notice Based on Fairness and Convenience, supra, at 82. An illustration is Hawkins v. United States, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958), in which the Court refused to discard  the common law rule that one spouse could not testify against the other,  saying, “Adverse testimony given in criminal proceedings would, we  think, be likely to destroy almost any marriage.” This conclusion has a  large intermixture of fact, but the factual aspect is scarcely  “indisputable.” See Hutchins and Slesinger, Some Observations on the Law  of Evidence—Family Relations, 13 Minn.L.Rev. 675 (1929). If the  destructive effect of the giving of adverse testimony by a spouse is not  indisputable, should the Court have refrained from considering it in  the absence of supporting evidence? “If the  Model Code or the Uniform Rules had been applicable, the Court would  have been barred from thinking about the essential factual ingredient of  the problems before it, and such a result would be obviously  intolerable. What the law needs as its growing points is more, not less,  judicial thinking about the factual ingredients of problems of what the  law ought to be, and the needed facts are seldom ‘clearly’  indisputable.” Davis, supra, at 83. “Professor Morgan gave the following description of the methodology of determining domestic law: “In  determining the content or applicability of a rule of domestic law, the  judge is unrestricted in his investigation and conclusion. He may  reject the propositions of either party or of both parties. He may  consult the sources of pertinent data to which they refer, or he may  refuse to do so. He may make an independent search for persuasive data  or rest content with what he has or what the parties present.  * * * [T]he parties do no more than to assist; they control no  part of the process.” Morgan, Judicial Notice, 57 Harv.L.Rev. 269,  270–271 (1944). This is the view which  should govern judicial access to legislative facts. It renders  inappropriate any limitation in the form of indisputability, any formal  requirements of notice other than those already inherent in affording  opportunity to hear and be heard and exchanging briefs, and any  requirement of formal findings at any level. It should, however, leave  open the possibility of introducing evidence through regular channels in  appropriate situations. See Borden's Farm Products Co. v. Baldwin, 293 U.S. 194, 55 S.Ct. 187, 79 L.Ed. 281 (1934), where the cause was remanded for the  taking of evidence as to the economic conditions and trade practices  underlying the New York Milk Control Law. Similar  considerations govern the judicial use of nonadjudicative facts in ways  other than formulating laws and rules. Thayer described them as a part  of the judicial reasoning process. “In  conducting a process of judicial reasoning, as of other reasoning, not a  step can be taken without assuming something which has not been proved;  and the capacity to do this with competent judgement and efficiency, is  imputed to judges and juries as part of their necessary mental outfit.”  Thayer, Preliminary Treatise on Evidence 279–280 (1898). As  Professor Davis points out, A System of Judicial Notice Based on  Fairness and Convenience, in Perspectives of Law 69, 73 (1964), every  case involves the use of hundreds or thousands of non-evidence facts.  When a witness in an automobile accident case says “car,” everyone,  judge and jury included, furnishes, from non-evidence sources within  himself, the supplementing information that the “car” is an automobile,  not a railroad car, that it is self-propelled, probably by an internal  combustion engine, that it may be assumed to have four wheels with  pneumatic rubber tires, and so on. The judicial process cannot construct  every case from scratch, like Descartes creating a world based on the  postulate Cogito, ergo sum. These items could not possibly be  introduced into evidence, and no one suggests that they be. Nor are they  appropriate subjects for any formalized treatment of judicial notice of  facts. See Levin and Levy, Persuading the Jury with Facts Not in  Evidence: The Fiction-Science Spectrum, 105 U.Pa.L.Rev. 139 (1956). Another  aspect of what Thayer had in mind is the use of non-evidence facts to  appraise or assess the adjudicative facts of the case. Pairs of cases  from two jurisdictions illustrate this use and also the difference  between non-evidence facts thus used and adjudicative facts. In People v. Strook, 347 Ill. 460, 179 N.E. 821 (1932), venue in Cook County had been held not established by testimony  that the crime was committed at 7956 South Chicago Avenue, since  judicial notice would not be taken that the address was in Chicago.  However, the same court subsequently ruled that venue in Cook County was  established by testimony that a crime occurred at 8900 South Anthony  Avenue, since notice would be taken of the common practice of omitting  the name of the city when speaking of local addresses, and the witness  was testifying in Chicago. People v. Pride, 16 Ill.2d 82, 156 N.E.2d 551 (1951). And in Hughes v. Vestal, 264 N.C. 500, 142 S.E.2d 361 (1965), the Supreme Court of North Carolina disapproved the trial  judge's admission in evidence of a state-published table of automobile  stopping distances on the basis of judicial notice, though the court  itself had referred to the same table in an earlier case in a  “rhetorical and illustrative” way in determining that the defendant  could not have stopped her car in time to avoid striking a child who  suddenly appeared in the highway and that a non-suit was properly  granted. Ennis v. Dupree, 262 N.C. 224, 136 S.E.2d 702 (1964). See also Brown v. Hale, 263 N.C. 176, 139 S.E.2d 210 (1964); Clayton v. Rimmer, 262 N.C. 302, 136 S.E.2d 562 (1964). It is apparent that this use of non-evidence facts in  evaluating the adjudicative facts of the case is not an appropriate  subject for a formalized judicial notice treatment. In  view of these considerations, the regulation of judicial notice of  facts by the present rule extends only to adjudicative facts. What, then, are “adjudicative” facts? Davis refers to them as those “which relate to the parties,” or more fully: “When  a court or an agency finds facts concerning the immediate parties—who  did what, where, when, how, and with what motive or intent—the court or  agency is performing an adjudicative function, and the facts are  conveniently called adjudicative facts. * * * “Stated  in other terms, the adjudicative facts are those to which the law is  applied in the process of adjudication. They are the facts that normally  go to the jury in a jury case. They relate to the parties, their  activities, their properties, their businesses.” 2 Administrative Law  Treatise 353. Subdivision (b). With  respect to judicial notice of adjudicative facts, the tradition has been  one of caution in requiring that the matter be beyond reasonable  controversy. This tradition of circumspection appears to be soundly  based, and no reason to depart from it is apparent. As Professor Davis  says: “The reason we use trial-type procedure,  I think, is that we make the practical judgement, on the basis of  experience, that taking evidence, subject to cross-examination and  rebuttal, is the best way to resolve controversies involving disputes of  adjudicative facts, that is, facts pertaining to the parties. The  reason we require a determination on the record is that we think fair  procedure in resolving disputes of adjudicative facts calls for giving  each party a chance to meet in the appropriate fashion the facts that  come to the tribunal's attention, and the appropriate fashion for  meeting disputed adjudicative facts includes rebuttal evidence,  cross-examination, usually confrontation, and argument (either written  or oral or both). The key to a fair trial is opportunity to use the  appropriate weapons (rebuttal evidence, cross-examination, and argument)  to meet adverse materials that come to the tribunal's attention.” A  System of Judicial Notice Based on Fairness and Convenience, in  Perspectives of Law 69, 93 (1964). The  rule proceeds upon the theory that these considerations call for  dispensing with traditional methods of proof only in clear cases.  Compare Professor Davis’ conclusion that judicial notice should be a  matter of convenience, subject to requirements of procedural fairness. Id., 94. This  rule is consistent with Uniform Rule 9(1) and (2) which limit judicial  notice of facts to those “so universally known that they cannot  reasonably be the subject of dispute,” those “so generally known or of  such common notoriety within the territorial jurisdiction of the court  that they cannot reasonably be the subject of dispute,” and those  “capable of immediate and accurate determination by resort to easily  accessible sources of indisputable accuracy.” The traditional textbook  treatment has included these general categories (matters of common  knowledge, facts capable of verification), McCormick §§324, 325, and  then has passed on into detailed treatment of such specific topics as  facts relating to the personnel and records of the court, Id. §327, and other governmental facts, Id.  §328. The California draftsmen, with a background of detailed statutory  regulation of judicial notice, followed a somewhat similar pattern.  California Evidence Code §§451, 452. The Uniform Rules, however, were  drafted on the theory that these particular matters are included within  the general categories and need no specific mention. This approach is  followed in the present rule. The phrase  “propositions of generalized knowledge,” found in Uniform Rule 9(1) and  (2) is not included in the present rule. It was, it is believed,  originally included in Model Code Rules 801 and 802 primarily in order  to afford some minimum recognition to the right of the judge in his  “legislative” capacity (not acting as the trier of fact) to take  judicial notice of very limited categories of generalized knowledge. The  limitations thus imposed have been discarded herein as undesirable,  unworkable, and contrary to existing practice. What is left, then, to be  considered, is the status of a “proposition of generalized knowledge”  as an “adjudicative” fact to be noticed judicially and communicated by  the judge to the jury. Thus viewed, it is considered to be lacking  practical significance. While judges use judicial notice of  “propositions of generalized knowledge” in a variety of situations:  determining the validity and meaning of statutes, formulating common law  rules, deciding whether evidence should be admitted, assessing the  sufficiency and effect of evidence, all are essentially nonadjudicative  in nature. When judicial notice is seen as a significant vehicle for  progress in the law, these are the areas involved, particularly in  developing fields of scientific knowledge. See McCormick 712. It is not  believed that judges now instruct juries as to “propositions of  generalized knowledge” derived from encyclopedias or other sources, or  that they are likely to do so, or, indeed, that it is desirable that  they do so. There is a vast difference between ruling on the basis of  judicial notice that radar evidence of speed is admissible and  explaining to the jury its principles and degree of accuracy, or between  using a table of stopping distances of automobiles at various speeds in  a judicial evaluation of testimony and telling the jury its precise  application in the case. For cases raising doubt as to the propriety of  the use of medical texts by lay triers of fact in passing on disability  claims in administrative proceedings, see Sayers v. Gardner, 380 F.2d 940 (6th Cir. 1967); Ross v. Gardner, 365 F.2d 554 (6th Cir. 1966); Sosna v. Celebrezze, 234 F.Supp. 289 (E.D.Pa. 1964); Glendenning v. Ribicoff, 213 F.Supp. 301 (W.D.Mo. 1962). Subdivisions (c) and (d).  Under subdivision (c) the judge has a discretionary authority to take  judicial notice, regardless of whether he is so requested by a party.  The taking of judicial notice is mandatory, under subdivision (d), only  when a party requests it and the necessary information is supplied. This  scheme is believed to reflect existing practice. It is simple and  workable. It avoids troublesome distinctions in the many situations in  which the process of taking judicial notice is not recognized as such. Compare  Uniform Rule 9 making judicial notice of facts universally known  mandatory without request, and making judicial notice of facts generally  known in the jurisdiction or capable of determination by resort to  accurate sources discretionary in the absence of request but mandatory  if request is made and the information furnished. But see Uniform Rule  10(3), which directs the judge to decline to take judicial notice if  available information fails to convince him that the matter falls  clearly within Uniform Rule 9 or is insufficient to enable him to notice  it judicially. Substantially the same approach is found in California  Evidence Code §§451–453 and in New Jersey Evidence Rule 9. In contrast,  the present rule treats alike all adjudicative facts which are subject  to judicial notice. Subdivision (e).  Basic considerations of procedural fairness demand an opportunity to be  heard on the propriety of taking judicial notice and the tenor of the  matter noticed. The rule requires the granting of that opportunity upon  request. No formal scheme of giving notice is provided. An adversely  affected party may learn in advance that judicial notice is in  contemplation, either by virtue of being served with a copy of a request  by another party under subdivision (d) that judicial notice be taken,  or through an advance indication by the judge. Or he may have no advance  notice at all. The likelihood of the latter is enhanced by the frequent  failure to recognize judicial notice as such. And in the absence of  advance notice, a request made after the fact could not in fairness be  considered untimely. See the provision for hearing on timely request in  the Administrative Procedure Act, 5 U.S.C. §556(e). See also Revised Model State Administrative Procedure Act (1961), 9C U.L.A. §10(4) (Supp. 1967). Subdivision (f).  In accord with the usual view, judicial notice may be taken at any  stage of the proceedings, whether in the trial court or on appeal.  Uniform Rule 12; California Evidence Code §459; Kansas Rules of Evidence  §60–412; New Jersey Evidence Rule 12; McCormick §330, p. 712. Subdivision (g).  Much of the controversy about judicial notice has centered upon the  question whether evidence should be admitted in disproof of facts of  which judicial notice is taken. The writers  have been divided. Favoring admissibility are Thayer, Preliminary  Treatise on Evidence 308 (1898); 9 Wigmore §2567; Davis, A System of  Judicial Notice Based on Fairness and Convenience, in Perspectives of  Law, 69, 76–77 (1964). Opposing admissibility are Keeffe, Landis and  Shaad, Sense and Nonsense about Judicial Notice, 2 Stan.L.Rev. 664, 668  (1950); McNaughton, Judicial Notice—Excerpts Relating to the  Morgan-Whitmore Controversy, 14 Vand.L.Rev. 779 (1961); Morgan, Judicial  Notice, 57 Harv.L.Rev. 269, 279 (1944); McCormick 710–711. The Model  Code and the Uniform Rules are predicated upon indisputability of  judicially noticed facts. The proponents of  admitting evidence in disproof have concentrated largely upon  legislative facts. Since the present rule deals only with judicial  notice of adjudicative facts, arguments directed to legislative facts  lose their relevancy. Within its relatively  narrow area of adjudicative facts, the rule contemplates there is to be  no evidence before the jury in disproof. The judge instructs the jury to  take judicially noticed facts as established. This position is  justified by the undesirable effects of the opposite rule in limiting  the rebutting party, though not his opponent, to admissible evidence, in  defeating the reasons for judicial notice, and in affecting the  substantive law to an extent and in ways largely unforeseeable. Ample  protection and flexibility are afforded by the broad provision for  opportunity to be heard on request, set forth in subdivision (e). Authority  upon the propriety of taking judicial notice against an accused in a  criminal case with respect to matters other than venue is relatively  meager. Proceeding upon the theory that the right of jury trial does not  extend to matters which are beyond reasonable dispute, the rule does  not distinguish between criminal and civil cases. People v. Mayes, 113 Cal. 618, 45 P. 860 (1896); Ross v. United States, 374 F.2d 97 (8th Cir. 1967). Cf. State v. Main, 94 R.I. 338, 180 A.2d 814 (1962); State v. Lawrence, 120 Utah 323, 234 P.2d 600 (1951). Note on Judicial Notice of Law. By rules effective July 1, 1966, the method of invoking the law of a foreign country is covered elsewhere. Rule 44.1 of the Federal Rules of Civil Procedure; Rule 26.1 of the Federal Rules of Criminal Procedure. These two new  admirably designed rules are founded upon the assumption that the manner  in which law is fed into the judicial process is never a proper concern  of the rules of evidence but rather of the rules of procedure. The  Advisory Committee on Evidence, believing that this assumption is  entirely correct, proposes no evidence rule with respect to judicial  notice of law, and suggests that those matters of law which, in addition  to foreign-country law, have traditionally been treated as requiring  pleading and proof and more recently as the subject of judicial notice  be left to the Rules of Civil and Criminal Procedure. Notes of Committee on the Judiciary, House Report No. 93–650 Rule  201(g) as received from the Supreme Court provided that when judicial  notice of a fact is taken, the court shall instruct the jury to accept  that fact as established. Being of the view that mandatory instruction  to a jury in a criminal case to accept as conclusive any fact judicially  noticed is inappropriate because contrary to the spirit of the Sixth  Amendment right to a jury trial, the Committee adopted the 1969 Advisory  Committee draft of this subsection, allowing a mandatory instruction in  civil actions and proceedings and a discretionary instruction in  criminal cases. Committee Notes on Rules—2011 Amendment The  language of Rule 201 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 802. The Rule Against HearsayHearsay is not admissible unless any of the following provides otherwise:  a federal statute; these rules; or other rules prescribed by the Supreme Court.  Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1939; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules The provision excepting from the operation of the  rule hearsay which is made admissible by other rules adopted by the  Supreme Court or by Act of Congress continues the admissibility  thereunder of hearsay which would not qualify under these Evidence  Rules. The following examples illustrate the working of the exception: Federal Rules of Civil Procedure Rule 4(g): proof of service by affidavit. Rule 32: admissibility of depositions. Rule 43(e): affidavits when motion based on facts not  appearing of record. Rule 56: affidavits in summary judgment proceedings. Rule 65(b): showing by affidavit for temporary restraining  order. Federal Rules of Criminal Procedure Rule 4(a): affidavits to show grounds for issuing warrants. Rule 12(b)(4): affidavits to determine issues of fact  in connection with motions. Committee Notes on Rules—2011 Amendment The  language of Rule 802 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 806. Attacking and Supporting the DeclarantWhen a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1943; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules The declarant of a hearsay statement which is  admitted in evidence is in effect a witness. His credibility should in  fairness be subject to impeachment and support as though he had in fact  testified. See Rules 608 and 609. There are however, some special  aspects of the impeaching of a hearsay declarant which require  consideration. These special aspects center upon impeachment by  inconsistent statement, arise from factual differences which exist  between the use of hearsay and an actual witness and also between  various kinds of hearsay, and involve the question of applying to  declarants the general rule disallowing evidence of an inconsistent  statement to impeach a witness unless he is afforded an opportunity to  deny or explain. See Rule 613(b). The principle difference between using hearsay and  an actual witness is that the inconsistent statement will in the case of  the witness almost inevitably of necessity in the nature of things be a prior statement, which it is entirely possible and feasible to  call to his attention, while in the case of hearsay the inconsistent  statement may well be a subsequent one, which practically precludes calling it to the  attention of the declarant. The result of insisting upon observation of  this impossible requirement in the hearsay situation is to deny the  opponent, already barred from cross-examination, any benefit of this  important technique of impeachment. The writers favor allowing the  subsequent statement. McCormick §37, p. 69; 3 Wigmore §1033. The cases,  however, are divided. Cases allowing the impeachment include People v. Collup, 27 Cal.2d 829, 167 P.2d 714 (1946); People v. Rosoto, 58 Cal.2d 304, 23 Cal.Rptr. 779, 373 P.2d 867 (1962); Carver v. United States, 164 U.S. 694, 17 S.Ct. 228, 41 L.Ed. 602 (1897). Contra, Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895); People v. Hines, 284 N.Y. 93, 29 N.E.2d 483 (1940). The force of Mattox, where the hearsay was the former testimony of a  deceased witness and the denial of use of a subsequent inconsistent  statement was upheld, is much diminished by Carver, where the hearsay was a dying declaration and denial of  use of a subsequent inconsistent statement resulted in reversal. The  difference in the particular brand of hearsay seems unimportant when the  inconsistent statement is a subsequent one. True, the opponent is not totally deprived of  cross-examination when the hearsay is former testimony or a deposition  but he is deprived of cross-examining on the statement or along lines  suggested by it. Mr. Justice Shiras, with two justices joining him,  dissented vigorously in Mattox. When the impeaching statement was made prior to the hearsay statement, differences in the kinds of  hearsay appear which arguably may justify differences in treatment. If  the hearsay consisted of a simple statement by the witness, e.g. a dying  declaration or a declaration against interest, the feasibility of  affording him an opportunity to deny or explain encounters the same  practical impossibility as where the statement is a subsequent one, just  discussed, although here the impossibility arises from the total  absence of anything resembling a hearing at which the matter could be  put to him. The courts by a large majority have ruled in favor of  allowing the statement to be used under these circumstances. McCormick  §37, p. 69; 3 Wigmore §1033. If, however, the hearsay consists of former  testimony or a deposition, the possibility of calling the prior  statement to the attention of the witness or deponent is not ruled out,  since the opportunity to cross-examine was available. It might thus be  concluded that with former testimony or depositions the conventional  foundation should be insisted upon. Most of the cases involve  depositions, and Wigmore describes them as divided. 3 Wigmore §1031.  Deposition procedures at best are cumbersome and expensive, and to  require the laying of the foundation may impose an undue burden. Under  the federal practice, there is no way of knowing with certainty at the  time of taking a deposition whether it is merely for discovery or will  ultimately end up in evidence. With respect to both former testimony and  depositions the possibility exists that knowledge of the statement  might not be acquired until after the time of the cross-examination.  Moreover, the expanded admissibility of former testimony and depositions  under Rule 804(b)(1) calls for a correspondingly expanded approach to  impeachment. The rule dispenses with the requirement in all hearsay  situations, which is readily administered and best calculated to lead to  fair results. Notice should be taken that Rule 26(f) of the Federal Rules of Civil Procedure, as originally submitted by the Advisory Committee, ended with the following: “* * * and, without having first called  them to the deponent's attention, may show statements contradictory  thereto made at any time by the deponent.” This language did not appear in the rule as  promulgated in December, 1937. See 4 Moore's Federal Practice   26.01[9], 26.35 (2d ed. 1967). In 1951, Nebraska adopted a  provision strongly resembling the one stricken from the federal rule: “Any party may impeach any adverse deponent by  self-contradiction without having laid foundation for such impeachment  at the time such deposition was taken.” R.S.Neb. §25–1267.07. For similar provisions, see Uniform Rule 65;  California Evidence Code §1202; Kansas Code of Civil Procedure §60–462;  New Jersey Evidence Rule 65. The provision for cross-examination of a declarant  upon his hearsay statement is a corollary of general principles of  cross-examination. A similar provision is found in California Evidence  Code §1203. Notes of Committee on the Judiciary, Senate Report No. 93–1277 Rule 906, as passed by the House and as proposed by  the Supreme Court provides that whenever a hearsay statement is  admitted, the credibility of the declarant of the statement may be  attacked, and if attacked may be supported, by any evidence which would  be admissible for those purposes if the declarant had testified as a  witness. Rule 801 defines what is a hearsay statement. While statements  by a person authorized by a party-opponent to make a statement  concerning the subject, by the party-opponent's agent or by a  coconspirator of a party—see rule 801(d)(2)(c), (d) and (e)—are  traditionally defined as exceptions to the hearsay rule, rule 801  defines such admission by a party-opponent as statements which are not  hearsay. Consequently, rule 806 by referring exclusively to the  admission of hearsay statements, does not appear to allow the  credibility of the declarant to be attacked when the declarant is a  coconspirator, agent or authorized spokesman. The committee is of the  view that such statements should open the declarant to attacks on his  credibility. Indeed, the reason such statements are excluded from the  operation of rule 806 is likely attributable to the drafting technique  used to codify the hearsay rule, viz some statements, instead of being  referred to as exceptions to the hearsay rule, are defined as statements  which are not hearsay. The phrase “or a statement defined in rule  801(d)(2)(c), (d) and (e)” is added to the rule in order to subject the  declarant of such statements, like the declarant of hearsay statements,  to attacks on his credibility. [The committee considered it unnecessary  to include statements contained in rule 801(d)(2)(A) and (B)—the  statement by the party-opponent himself or the statement of which he has  manifested his adoption—because the credibility of the party-opponent  is always subject to an attack on his credibility]. Notes of Conference Committee, House Report No. 93–1597 The Senate amendment permits an attack upon the  credibility of the declarant of a statement if the statement is one by a  person authorized by a party-opponent to make a statement concerning  the subject, one by an agent of a party-opponent, or one by a  coconspirator of the party-opponent, as these statements are defined in  Rules 801(d)(2)(C), (D) and (E). The House bill has no such provision. The Conference adopts the Senate amendment. The Senate amendment conforms the rule to present practice. 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 The amendment is technical. No substantive change is intended. GAP Report. Restylization changes in the rule were eliminated. Committee Notes on Rules—2011 Amendment The  language of Rule 806 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.