Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination. (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions: (1) on cross-examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules Subdivision (a). Spelling out detailed rules to govern the mode  and order of interrogating witnesses presenting evidence is neither  desirable nor feasible. The ultimate responsibility for the effective  working of the adversary system rests with the judge. The rule sets  forth the objectives which he should seek to attain. Item (1) restates in broad terms the power and  obligation of the judge as developed under common law principles. It  covers such concerns as whether testimony shall be in the form of a free  narrative or responses to specific questions, McCormick §5, the order  of calling witnesses and presenting evidence, 6 Wigmore §1867, the use  of demonstrative evidence, McCormick §179, and the many other questions  arising during the course of a trial which can be solved only by the  judge's common sense and fairness in view of the particular  circumstances. Item (2) is addressed to avoidance of needless  consumption of time, a matter of daily concern in the disposition of  cases. A companion piece is found in the discretion vested in the judge  to exclude evidence as a waste of time in Rule 403(b). Item (3) calls for a judgement under the particular  circumstances whether interrogation tactics entail harassment or undue  embarrassment. Pertinent circumstances include the importance of the  testimony, the nature of the inquiry, its relevance to credibility,  waste of time, and confusion. McCormick §42. In Alford v. United States, 282 U.S. 687, 694,  51 S.Ct. 218, 75 L.Ed. 624 (1931), the Court pointed out that, while  the trial judge should protect the witness from questions which “go  beyond the bounds of proper cross-examination merely to harass, annoy or  humiliate,” this protection by no means forecloses efforts to discredit  the witness. Reference to the transcript of the prosecutor's  cross-examination in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), serves to lay at rest any doubts as to the need for judicial control in this area. The inquiry into specific instances of conduct of a witness allowed under Rule 608(b) is, of course, subject to this rule. Subdivision (b). The tradition in the federal courts and in  numerous state courts has been to limit the scope of cross-examination  to matters testified to on direct, plus matters bearing upon the  credibility of the witness. Various reasons have been advanced to  justify the rule of limited cross-examination. (1) A party vouches for  his own witness but only to the extent of matters elicited on direct. Resurrection Gold Mining Co. v. Fortune Gold Mining Co., 129 F. 668, 675 (8th Cir. 1904), quoted in Maguire, Weinstein, et al., Cases on  Evidence 277, n. 38 (5th ed. 1965). But the concept of vouching is  discredited, and Rule 607 rejects it. (2) A party cannot ask his own  witness leading questions. This is a problem properly solved in terms of  what is necessary for a proper development of the testimony rather than  by a mechanistic formula similar to the vouching concept. See  discussion under subdivision (c). (3) A practice of limited  cross-examination promotes orderly presentation of the case. Finch v. Weiner, 109 Conn. 616, 145 A. 31 (1929). While this latter reason has merit, the matter is essentially  one of the order of presentation and not one in which involvement at the  appellate level is likely to prove fruitful. See for example, Moyer v. Aetna Life Ins. Co., 126 F.2d 141 (3rd Cir. 1942); Butler v. New York Central R. Co., 253 F.2d 281 (7th Cir. 1958); United States v. Johnson, 285 F.2d 35 (9th Cir. 1960); Union Automobile Indemnity Ass'n. v. Capitol Indemnity Ins. Co., 310 F.2d 318 (7th Cir. 1962). In evaluating these considerations, McCormick says: “The foregoing considerations favoring the  wide-open or restrictive rules may well be thought to be fairly evenly  balanced. There is another factor, however, which seems to swing the  balance overwhelmingly in favor of the wide-open rule. This is the  consideration of economy of time and energy. Obviously, the wide-open  rule presents little or no opportunity for dispute in its application.  The restrictive practice in all its forms, on the other hand, is  productive in many court rooms, of continual bickering over the choice  of the numerous variations of the ‘scope of the direct’ criterion, and  of their application to particular cross-questions. These controversies  are often reventilated on appeal, and reversals for error in their  determination are frequent. Observance of these vague and ambiguous  restrictions is a matter of constant and hampering concern to the  cross-examiner. If these efforts, delays and misprisions were the  necessary incidents to the guarding of substantive rights or the  fundamentals of fair trial, they might be worth the cost. As the price  of the choice of an obviously debatable regulation of the order of  evidence, the sacrifice seems misguided. The American Bar Association's  Committee for the Improvement of the Law of Evidence for the year  1937–38 said this: “The rule limiting cross-examination to the precise  subject of the direct examination is probably the most frequent rule  (except the Opinion rule) leading in the trial practice today to refined  and technical quibbles which obstruct the progress of the trial,  confuse the jury, and give rise to appeal on technical grounds only.  Some of the instances in which Supreme Courts have ordered new trials  for the mere transgression of this rule about the order of evidence have  been astounding. “We recommend that the rule allowing questions upon  any part of the issue known to the witness * * * be adopted.  * * *’ ” McCormick, §27, p. 51. See also 5 Moore's  Federal Practice  43.10 (2nd ed. 1964). The provision of the second sentence, that the  judge may in the interests of justice limit inquiry into new matters on  cross-examination, is designed for those situations in which the result  otherwise would be confusion, complication, or protraction of the case,  not as a matter of rule but as demonstrable in the actual development of  the particular case. The rule does not purport to determine the extent  to which an accused who elects to testify thereby waives his privilege  against self-incrimination. The question is a constitutional one, rather  than a mere matter of administering the trial. Under Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), no general waiver occurs when the  accused testifies on such preliminary matters as the validity of a  search and seizure or the admissibility of a confession. Rule 104(d), supra. When he testifies on the merits, however, can he  foreclose inquiry into an aspect or element of the crime by avoiding it  on direct? The affirmative answer given in Tucker v. United States, 5 F.2d 818 (8th Cir. 1925), is inconsistent with the description of the waiver as extending to “all other relevant facts” in Johnson v. United States, 318 U.S. 189, 195, 63 S.Ct. 549, 87 L.Ed. 704 (1943). See also Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). The situation of an accused who  desires to testify on some but not all counts of a multiple-count  indictment is one to be approached, in the first instance at least, as a  problem of severance under Rule 14 of the Federal Rules of Criminal  Procedure. Cross v. United States, 118 U.S.App.D.C. 324, 335 F.2d 987 (1964). Cf. United States v. Baker, 262 F.Supp. 657,  686 (D.D.C. 1966). In all events, the extent of the waiver of the  privilege against self-incrimination ought not to be determined as a  by-product of a rule on scope of cross-examination. Subdivision (c). The rule continues the traditional view that  the suggestive powers of the leading question are as a general  proposition undesirable. Within this tradition, however, numerous  exceptions have achieved recognition: The witness who is hostile,  unwilling, or biased; the child witness or the adult with communication  problems; the witness whose recollection is exhausted; and undisputed  preliminary matters. 3 Wigmore §§ 774–778. An almost total unwillingness  to reverse for infractions has been manifested by appellate courts. See  cases cited in 3 Wigmore §770. The matter clearly falls within the area  of control by the judge over the mode and order of interrogation and  presentation and accordingly is phrased in words of suggestion rather  than command. The rule also conforms to tradition in making the  use of leading questions on cross-examination a matter of right. The  purpose of the qualification “ordinarily” is to furnish a basis for  denying the use of leading questions when the cross-examination is  cross-examination in form only and not in fact, as for example the  “cross-examination” of a party by his own counsel after being called by  the opponent (savoring more of re-direct) or of an insured defendant who  proves to be friendly to the plaintiff. The final sentence deals with categories of witnesses automatically regarded and treated as hostile. Rule 43(b) of the Federal Rules of Civil Procedure has included only “an adverse party or an officer, director, or  managing agent of a public or private corporation or of a partnership or  association which is an adverse party.” This limitation virtually to  persons whose statements would stand as admissions is believed to be an  unduly narrow concept of those who may safely be regarded as hostile  without further demonstration. See, for example, Maryland Casualty Co. v. Kador, 225 F.2d 120 (5th Cir. 1955), and Degelos v. Fidelity and Casualty Co., 313 F.2d 809 (5th Cir. 1963), holding despite the language of Rule 43(b) that an  insured fell within it, though not a party in an action under the  Louisiana direct action statute. The phrase of the rule, “witness  identified with” an adverse party, is designed to enlarge the category  of persons thus callable. Notes of Committee on the Judiciary, House Report No. 93–650 As submitted by the Court, Rule 611(b) provided: A witness may be cross-examined on any matter  relevant to any issue in the case, including credibility. In the  interests of justice, the judge may limit cross-examination with respect  to matters not testified to on direct examination. The Committee amended this provision to return to  the rule which prevails in the federal courts and thirty-nine State  jurisdictions. As amended, the Rule is in the text of the 1969 Advisory  Committee draft. It limits cross-examination to credibility and to  matters testified to on direct examination, unless the judge permits  more, in which event the cross-examiner must proceed as if on direct  examination. This traditional rule facilitates orderly presentation by  each party at trial. Further, in light of existing discovery procedures,  there appears to be no need to abandon the traditional rule. The third sentence of Rule 611(c) as submitted by the Court provided that: In civil cases, a party is entitled to call an  adverse party or witness identified with him and interrogate by leading  questions. The Committee amended this Rule to permit leading  questions to be used with respect to any hostile witness, not only an  adverse party or person identified with such adverse party. The  Committee also substituted the word “When” for the phrase “In civil  cases” to reflect the possibility that in criminal cases a defendant may  be entitled to call witnesses identified with the government, in which  event the Committee believed the defendant should be permitted to  inquire with leading questions. Notes of Committee on the Judiciary, Senate Report No. 93–1277 Rule 611(b) as submitted by the Supreme Court  permitted a broad scope of cross-examination: “cross-examination on any  matter relevant to any issue in the case” unless the judge, in the  interests of justice, limited the scope of cross-examination. The House narrowed the Rule to the more traditional  practice of limiting cross-examination to the subject matter of direct  examination (and credibility), but with discretion in the judge to  permit inquiry into additional matters in situations where that would  aid in the development of the evidence or otherwise facilitate the  conduct of the trial. The committee agrees with the House amendment.  Although there are good arguments in support of broad cross-examination  from perspectives of developing all relevant evidence, we believe the  factors of insuring an orderly and predictable development of the  evidence weigh in favor of the narrower rule, especially when discretion  is given to the trial judge to permit inquiry into additional matters.  The committee expressly approves this discretion and believes it will  permit sufficient flexibility allowing a broader scope of  cross-examination whenever appropriate. The House amendment providing broader discretionary  cross-examination permitted inquiry into additional matters only as if  on direct examination. As a general rule, we concur with this  limitation, however, we would understand that this limitation would not  preclude the utilization of leading questions if the conditions of  subsection (c) of this rule were met, bearing in mind the judge's  discretion in any case to limit the scope of cross-examination [see  McCormick on Evidence, §§24–26 (especially 24) (2d ed. 1972)]. Further, the committee has received correspondence  from Federal judges commenting on the applicability of this rule to  section 1407 of title 28. It is the committee's judgment that this rule  as reported by the House is flexible enough to provide sufficiently  broad cross-examination in appropriate situations in multidistrict  litigation. As submitted by the Supreme Court, the rule  provided: “In civil cases, a party is entitled to call an adverse party  or witness identified with him and interrogate by leading questions.” The final sentence of subsection (c) was amended by  the House for the purpose of clarifying the fact that a “hostile  witness”—that is a witness who is hostile in fact—could be subject to  interrogation by leading questions. The rule as submitted by the Supreme  Court declared certain witnesses hostile as a matter of law and thus  subject to interrogation by leading questions without any showing of  hostility in fact. These were adverse parties or witnesses identified  with adverse parties. However, the wording of the first sentence of  subsection (c) while generally, prohibiting the use of leading questions  on direct examination, also provides “except as may be necessary to  develop his testimony.” Further, the first paragraph of the Advisory  Committee note explaining the subsection makes clear that they intended  that leading questions could be asked of a hostile witness or a witness  who was unwilling or biased and even though that witness was not  associated with an adverse party. Thus, we question whether the House  amendment was necessary. However, concluding that it was not intended to  affect the meaning of the first sentence of the subsection and was  intended solely to clarify the fact that leading questions are  permissible in the interrogation of a witness, who is hostile in fact,  the committee accepts that House amendment. The final sentence of this subsection was also  amended by the House to cover criminal as well as civil cases. The  committee accepts this amendment, but notes that it may be difficult in  criminal cases to determine when a witness is “identified with an  adverse party,” and thus the rule should be applied with caution. Notes of Advisory Committee on Rules—1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules—2011 Amendment The language of Rule 611 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 902. Evidence That Is Self-AuthenticatingThe following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:
(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:
(A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and
(B) a signature purporting to be an execution or attestation.
(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if:
(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and
(B) another public officer who has a seal and official duties within that same entity certifies under seal — or its equivalent — that the signer has the official capacity and that the signature is genuine.
(3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:
(A) order that it be treated as presumptively authentic without final certification; or
(B) allow it to be evidenced by an attested summary with or without final certification.
(4) Certified Copies of Public Records.   A copy of an official record — or a copy of a document that was recorded or filed in a public office as authorized by law — if the copy is certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.
(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.
(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.
(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.
(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.
(10) Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic.
(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.
(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).
(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).
(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule (902(11) or (12). The proponent also must meet the notice requirements of Rule 902 (11).
Notes
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1944; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011.)
Notes of Advisory Committee on Proposed Rules
Case law and statutes have, over the years, developed a substantial body of instances in which authenticity is taken as sufficiently established for purposes of admissibility without extrinsic evidence to that effect, sometimes for reasons of policy but perhaps more often because practical considerations reduce the possibility of unauthenticity to a very small dimension. The present rule collects and incorporates these situations, in some instances expanding them to occupy a larger area which their underlying considerations justify. In no instance is the opposite party foreclosed from disputing authenticity.
Paragraph (1). The acceptance of documents bearing a public seal and signature, most often encountered in practice in the form of acknowledgments or certificates authenticating copies of public records, is actually of broad application. Whether theoretically based in whole or in part upon judicial notice, the practical underlying considerations are that forgery is a crime and detection is fairly easy and certain. 7 Wigmore §2161, p. 638; California Evidence Code §1452. More than 50 provisions for judicial notice of official seals are contained in the United States Code.
Paragraph (2). While statutes are found which raise a presumption of genuineness of purported official signatures in the absence of an official seal, 7 Wigmore §2167; California Evidence Code §1453, the greater ease of effecting a forgery under these circumstances is apparent. Hence this paragraph of the rule calls for authentication by an officer who has a seal. Notarial acts by members of the armed forces and other special situations are covered in paragraph (10).
Paragraph (3) provides a method for extending the presumption of authenticity to foreign official documents by a procedure of certification. It is derived from Rule 44(a)(2) of the Rules of Civil Procedure but is broader in applying to public documents rather than being limited to public records.
Paragraph (4). The common law and innumerable statutes have recognized the procedure of authenticating copies of public records by certificate. The certificate qualifies as a public document, receivable as authentic when in conformity with paragraph (1), (2), or (3). Rule 44(a) of the Rules of Civil Procedure and Rule 27 of the Rules of Criminal Procedure have provided authentication procedures of this nature for both domestic and foreign public records. It will be observed that the certification procedure here provided extends only to public records, reports, and recorded documents, all including data compilations, and does not apply to public documents generally. Hence documents provable when presented in original form under paragraphs (1), (2), or (3) may not be provable by certified copy under paragraph (4).
Paragraph (5). Dispensing with preliminary proof of the genuineness of purportedly official publications, most commonly encountered in connection with statutes, court reports, rules, and regulations, has been greatly enlarged by statutes and decisions. 5 Wigmore §1684. Paragraph (5), it will be noted, does not confer admissibility upon all official publications; it merely provides a means whereby their authenticity may be taken as established for purposes of admissibility. Rule 44(a) of the Rules of Civil Procedure has been to the same effect.
Paragraph (6). The likelihood of forgery of newspapers or periodicals is slight indeed. Hence no danger is apparent in receiving them. Establishing the authenticity of the publication may, of course, leave still open questions of authority and responsibility for items therein contained. See 7 Wigmore §2150. Cf. 39 U.S.C. §4005(b), public advertisement prima facie evidence of agency of person named, in postal fraud order proceeding; Canadian Uniform Evidence Act, Draft of 1936, printed copy of newspaper prima facie evidence that notices or advertisements were authorized.
Paragraph (7). Several factors justify dispensing with preliminary proof of genuineness of commercial and mercantile labels and the like. The risk of forgery is minimal. Trademark infringement involves serious penalties. Great efforts are devoted to inducing the public to buy in reliance on brand names, and substantial protection is given them. Hence the fairness of this treatment finds recognition in the cases. Curtiss Candy Co. v. Johnson, 163 Miss. 426, 141 So. 762 (1932), Baby Ruth candy bar; Doyle v. Continental Baking Co., 262 Mass. 516, 160 N.E. 325 (1928), loaf of bread; Weiner v. Mager & Throne, Inc., 167 Misc. 338, 3 N.Y.S.2d 918 (1938), same. And see W.Va.Code 1966, §47–3–5, trade-mark on bottle prima facie evidence of ownership. Contra, Keegan v. Green Giant Co., 150 Me. 283, 110 A.2d 599 (1954); Murphy v. Campbell Soup Co., 62 F.2d 564 (1st Cir. 1933). Cattle brands have received similar acceptance in the western states. Rev.Code Mont.1947, §46–606; State v. Wolfley, 75 Kan. 406, 89 P. 1046 (1907); Annot., 11 L.R.A. (N.S.) 87. Inscriptions on trains and vehicles are held to be prima facie evidence of ownership or control. Pittsburgh, Ft. W. & C. Ry. v. Callaghan, 157 Ill. 406, 41 N.E. 909 (1895); 9 Wigmore §2510a. See also the provision of 19 U.S.C. §1615(2) that marks, labels, brands, or stamps indicating foreign origin are prima facie evidence of foreign origin of merchandise.
Paragraph (8). In virtually every state, acknowledged title documents are receivable in evidence without further proof. Statutes are collected in 5 Wigmore §1676. If this authentication suffices for documents of the importance of those affecting titles, logic scarcely permits denying this method when other kinds of documents are involved. Instances of broadly inclusive statutes are California Evidence Code §1451 and N.Y.CPLR 4538, McKinney's Consol. Laws 1963.
Paragraph (9). Issues of the authenticity of commercial paper in federal courts will usually arise in diversity cases, will involve an element of a cause of action or defense, and with respect to presumptions and burden of proof will be controlled by Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Rule 302, supra. There may, however, be questions of authenticity involving lesser segments of a case or the case may be one governed by federal common law. Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). Cf. United States v. Yazell, 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966). In these situations, resort to the useful authentication provisions of the Uniform Commercial Code is provided for. While the phrasing is in terms of “general commercial law,” in order to avoid the potential complication inherent in borrowing local statutes, today one would have difficulty in determining the general commercial law without referring to the Code. See Williams v. Walker-Thomas-Furniture Co., 121 U.S.App.D.C. 315, 350 F.2d 445 (1965). Pertinent Code provisions are sections 1–202, 3–307, and 3–510, dealing with third-party documents, signatures on negotiable instruments, protests, and statements of dishonor.
Paragraph (10). The paragraph continues in effect dispensations with preliminary proof of genuineness provided in various Acts of Congress. See, for example, 10 U.S.C. §936, signature, without seal, together with title, prima facie evidence of authenticity of acts of certain military personnel who are given notarial power; 15 U.S.C. §77f(a), signature on SEC registration presumed genuine; 26 U.S.C. §6064, signature to tax return prima facie genuine.
Notes of Committee on the Judiciary, House Report No. 93–650
Rule 902(8) as submitted by the Court referred to certificates of acknowledgment “under the hand and seal of” a notary public or other officer authorized by law to take acknowledgments. The Committee amended the Rule to eliminate the requirement, believed to be inconsistent with the law in some States, that a notary public must affix a seal to a document acknowledged before him. As amended the Rule merely requires that the document be executed in the manner prescribed by State law.
The Committee approved Rule 902(9) as submitted by the Court. With respect to the meaning of the phrase “general commercial law”, the Committee intends that the Uniform Commercial Code, which has been adopted in virtually every State, will be followed generally, but that federal commercial law will apply where federal commercial paper is involved. See Clearfield Trust Co. v. United States, 318 U.S. 363 (1943). Further, in those instances in which the issues are governed by Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), State law will apply irrespective of whether it is the Uniform Commercial Code.
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
These two sentences were inadvertently eliminated from the 1987 amendments. The amendment is technical. No substantive change is intended.
Committee Notes on Rules—2000 Amendment
The amendment adds two new paragraphs to the rule on self-authentication. It sets forth a procedure by which parties can authenticate certain records of regularly conducted activity, other than through the testimony of a foundation witness. See the amendment to Rule 803(6). 18 U.S.C. §3505 currently provides a means for certifying foreign records of regularly conducted activity in criminal cases, and this amendment is intended to establish a similar procedure for domestic records, and for foreign records offered in civil cases.
A declaration that satisfies 28 U.S.C. §1746 would satisfy the declaration requirement of Rule 902(11), as would any comparable certification under oath.
The notice requirement in Rules 902(11) and (12) is intended to give the opponent of the evidence a full opportunity to test the adequacy of the foundation set forth in the declaration.
GAP Report—Proposed Amendment to Rule 902. The Committee made the following changes to the published draft of the proposed amendment to Evidence Rule 902:
1. Minor stylistic changes were made in the text, in accordance with suggestions of the Style Subcommittee of the Standing Committee on Rules of Practice and Procedure.
2. The phrase “in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority” was added to proposed Rule 902(11), to provide consistency with Evidence Rule 902(4). The Committee Note was amended to accord with this textual change.
3. Minor stylistic changes were made in the text to provide a uniform construction of the terms “declaration” and “certifying.”
4. The notice provisions in the text were revised to clarify that the proponent must make both the declaration and the underlying record available for inspection.
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions.
Committee Notes on Rules—2011 Amendment
The language of Rule 902 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.
Committee Notes on Rules—2017 Amendment
Paragraph (13). The amendment sets forth a procedure by which parties can authenticate certain electronic evidence other than through the testimony of a foundation witness. As with the provisions on business records in Rules 902(11) and (12), the Committee has found that the expense and inconvenience of producing a witness to authenticate an item of electronic evidence is often unnecessary. It is often the case that a party goes to the expense of producing an authentication witness, and then the adversary either stipulates authenticity before the witness is called or fails to challenge the authentication testimony once it is presented. The amendment provides a procedure under which the parties can determine in advance of trial whether a real challenge to authenticity will be made, and can then plan accordingly.
Nothing in the amendment is intended to limit a party from establishing authenticity of electronic evidence on any ground provided in these Rules, including though judicial notice where appropriate.
A proponent establishing authenticity under this Rule must present a certification containing information that would be sufficient to establish authenticity were that information provided by a witness at trial. If the certification provides information that would be insufficient to authenticate the record if the certifying person testified, then authenticity is not established under this Rule. The Rule specifically allows the authenticity foundation that satisfies Rule 901(b)(9) to be established by a certification rather than the testimony of a live witness.
The reference to the "certification requirements of Rule 902(11) or (12)" is only to the procedural requirements for a valid certification. There is no intent to require, or permit, a certification under this Rule to prove the requirements of Rule 803(6). Rule 902(13) is solely limited to authentication, and any attempt to satisfy a hearsay exception must be made independently.
A certification under this Rule can establish only that the proffered item has satisfied the admissibility requirements for authenticity. The opponent remains free to object to admissibility of the proffered item on other grounds—including hearsay, relevance, or in criminal cases the right to confrontation. For example, assume that a plaintiff in a defamation case offers what purports to be a printout of a webpage on which a defamatory statement was made. Plaintiff offers a certification under this Rule in which a qualified person describes the process by which the web page was retrieved. Even if that certification sufficiently establishes that the webpage is authentic, defendant remains free to object that the statement on the webpage was not placed there by defendant. Similarly, a certification authenticating a computer output, such as a spreadsheet, does not preclude an objection that the information produced is unreliable—the authentication establishes only that the output came from the computer.
A challenge to the authenticity of electronic evidence may require technical information about the system or process at issue, including possibly retaining a forensic technical expert; such factors will affect whether the opponent has a fair opportunity to challenge the evidence given the notice provided.
The reference to Rule 902(12) is intended to cover certifications that are made in a foreign country.
Committee Notes on Rules—2017 Amendment
Paragraph (14). The amendment sets forth a procedure by which parties can authenticate data copied from an electronic device, storage medium, or an electronic file, other than through the testimony of a foundation witness. As with the provisions on business records in Rules 902(11) and (12), the Committee has found that the expense and inconvenience of producing an authenticating witness for this evidence is often unnecessary. It is often the case that a party goes to the expense of producing an authentication witness, and then the adversary either stipulates authenticity before the witness is called or fails to challenge the authentication testimony once it is presented. The amendment provides a procedure in which the parties can determine in advance of trial whether a real challenge to authenticity will be made, and can then plan accordingly.
Today, data copied from electronic devices, storage media, and electronic files are ordinarily authenticated by "hash value". A hash value is a number that is often represented as a sequence of characters and is produced by an algorithm based upon the digital contents of a drive, medium, or file. If the hash values for the original and copy are different, then the copy is not identical to the original. If the hash values for the original and copy are the same, it is highly improbable that the original and copy are not identical. Thus, identical hash values for the original and copy reliably attest to the fact that they are exact duplicates. This amendment allows self-authentication by a certification of a qualified person that she checked the hash value of the proffered item and that it was identical to the original. The rule is flexible enough to allow certifications through processes other than comparison of hash value, including by other reliable means of identification provided by future technology.
Nothing in the amendment is intended to limit a party from establishing authenticity of electronic evidence on any ground provided in these Rules, including through judicial notice where appropriate.
A proponent establishing authenticity under this Rule must present a certification containing information that would be sufficient to establish authenticity were that information provided by a witness at trial. If the certification provides information that would be insufficient to authenticate the record of the certifying person testified, then authenticity is not established under this Rule.
The reference to the "certification requirements of Rule 902(11) or (12)" is only to the procedural requirements for a valid certification. There is no intent to require, or permit, a certification under this Rule to prove the requirements of Rule 803(6). Rule 902(14) is solely limited to authentication, and any attempt to satisfy a hearsay exception must be made independently.
A certification under this Rule can only establish that the proffered item is authentic. The opponent remains free to object to admissibility of the proffered item on other grounds—including hearsay, relevance, or in criminal cases the right to confrontation. For example, in a criminal case in which data copied from a hard drive is proffered, the defendant can still challenge hearsay found in the hard drive, and can still challenge whether the information on the hard drive was placed there by the defendant.
A challenge to the authenticity of electronic evidence may require technical information about the system or process at issue, including possibly retaining a forensic technical expert; such factors will affect whether the opponent has a fair opportunity to challenge the evidence given the notice provided.
The reference to Rule 902(12) is intended to cover certifications that are made in a foreign country.


Rule 805. Hearsay Within HearsayHearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1943; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules On principle it scarcely seems open to doubt that  the hearsay rule should not call for exclusion of a hearsay statement  which includes a further hearsay statement when both conform to the  requirements of a hearsay exception. Thus a hospital record might  contain an entry of the patient's age based on information furnished by  his wife. The hospital record would qualify as a regular entry except  that the person who furnished the information was not acting in the  routine of the business. However, her statement independently qualifies  as a statement of pedigree (if she is unavailable) or as a statement  made for purposes of diagnosis or treatment, and hence each link in the  chain falls under sufficient assurances. Or, further to illustrate, a  dying declaration may incorporate a declaration against interest by  another declarant. See McCormick §290, p. 611. Committee Notes on Rules—2011 Amendment The  language of Rule 805 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 606. Juror’s Competency as a Witness(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.
(b) During an Inquiry into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.
Notes
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1934; Pub. L. 94–149, §1(10), Dec. 12, 1975, 89 Stat. 805; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 26, 2011, eff. Dec. 1, 2011.)
Notes of Advisory Committee on Proposed Rules
Subdivision (a). The considerations which bear upon the permissibility of testimony by a juror in the trial in which he is sitting as juror bear an obvious similarity to those evoked when the judge is called as a witness. See Advisory Committee's Note to Rule 605. The judge is not, however in this instance so involved as to call for departure from usual principles requiring objection to be made; hence the only provision on objection is that opportunity be afforded for its making out of the presence of the jury. Compare Rules 605.
Subdivision (b). Whether testimony, affidavits, or statements of jurors should be received for the purpose of invalidating or supporting a verdict or indictment, and if so, under what circumstances, has given rise to substantial differences of opinion. The familiar rubric that a juror may not impeach his own verdict, dating from Lord Mansfield's time, is a gross oversimplification. The values sought to be promoted by excluding the evidence include freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 785, 59 L.Ed. 1300 (1915). On the other hand, simply putting verdicts beyond effective reach can only promote irregularity and injustice. The rule offers an accommodation between these competing considerations.
The mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and invite tampering and harassment. See Grenz v. Werre, 129 N.W.2d 681 (N.D. 1964). The authorities are in virtually complete accord in excluding the evidence. Fryer, Note on Disqualification of Witnesses, Selected Writings on Evidence and Trial 345, 347 (Fryer ed. 1957); Maguire, Weinstein, et al., Cases on Evidence 887 (5th ed. 1965); 8 Wigmore §2340 (McNaughton Rev. 1961). As to matters other than mental operations and emotional reactions of jurors, substantial authority refuses to allow a juror to disclose irregularities which occur in the jury room, but allows his testimony as to irregularities occurring outside and allows outsiders to testify as to occurrences both inside and out. 8 Wigmore §2354 (McNaughton Rev. 1961). However, the door of the jury room is not necessarily a satisfactory dividing point, and the Supreme Court has refused to accept it for every situation. Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892).
Under the federal decisions the central focus has been upon insulation of the manner in which the jury reached its verdict, and this protection extends to each of the components of deliberation, including arguments, statements, discussions, mental and emotional reactions, votes, and any other feature of the process. Thus testimony or affidavits of jurors have been held incompetent to show a compromise verdict, Hyde v. United States, 225 U.S. 347, 382 (1912); a quotient verdict, McDonald v. Pless, 238 U.S. 264 (1915); speculation as to insurance coverage, Holden v. Porter, 495 F.2d 878 (10th Cir.1969), Farmers Coop. Elev. Ass'n v. Strand, 382 F.2d 224, 230 (8th Cir. 1967), cert. denied 389 U.S. 1014; misinterpretations of instructions, Farmers Coop. Elev. Ass'n v. Strand, supra; mistake in returning verdict, United States v. Chereton, 309 F.2d 197 (6th Cir. 1962); interpretation of guilty plea by one defendant as implicating others, United States v. Crosby, 294 F.2d 928, 949 (2d Cir. 1961). The policy does not, however, foreclose testimony by jurors as to prejudicial extraneous information or influences injected into or brought to bear upon the deliberative process. Thus a juror is recognized as competent to testify to statements by the bailiff or the introduction of a prejudicial newspaper account into the jury room, Mattox v. United States, 146 U.S. 140 (1892). See also Parker v. Gladden, 385 U.S. 363 (1966).
This rule does not purport to specify the substantive grounds for setting aside verdicts for irregularity; it deals only with the competency of jurors to testify concerning those grounds. Allowing them to testify as to matters other than their own inner reactions involves no particular hazard to the values sought to be protected. The rules is based upon this conclusion. It makes no attempt to specify the substantive grounds for setting aside verdicts for irregularity.
See also Rule 6(e) of the Federal Rules of Criminal Procedure and 18 U.S.C. §3500, governing the secrecy of grand jury proceedings. The present rules does not relate to secrecy and disclosure but to the competency of certain witnesses and evidence.
Notes of Committee on the Judiciary, House Report No. 93–650
As proposed by the Court, Rule 606(b) limited testimony by a juror in the course of an inquiry into the validity of a verdict or indictment. He could testify as to the influence of extraneous prejudicial information brought to the jury's attention (e.g. a radio newscast or a newspaper account) or an outside influence which improperly had been brought to bear upon a juror (e.g. a threat to the safety of a member of his family), but he could not testify as to other irregularities which occurred in the jury room. Under this formulation a quotient verdict could not be attacked through the testimony of a juror, nor could a juror testify to the drunken condition of a fellow juror which so disabled him that he could not participate in the jury's deliberations.
The 1969 and 1971 Advisory Committee drafts would have permitted a member of the jury to testify concerning these kinds of irregularities in the jury room. The Advisory Committee note in the 1971 draft stated that “* * * the door of the jury room is not a satisfactory dividing point, and the Supreme Court has refused to accept it.” The Advisory Committee further commented that—
The trend has been to draw the dividing line between testimony as to mental processes, on the one hand, and as to the existence of conditions or occurrences of events calculated improperly to influence the verdict, on the other hand, without regard to whether the happening is within or without the jury room. * * * The jurors are the persons who know what really happened. Allowing them to testify as to matters other than their own reactions involves no particular hazard to the values sought to be protected. The rule is based upon this conclusion. It makes no attempt to specify the substantive grounds for setting aside verdicts for irregularity.
Objective jury misconduct may be testified to in California, Florida, Iowa, Kansas, Nebraska, New Jersey, North Dakota, Ohio, Oregon, Tennessee, Texas, and Washington.
Persuaded that the better practice is that provided for in the earlier drafts, the Committee amended subdivision (b) to read in the text of those drafts.
Notes of Committee on the Judiciary, Senate Report No. 93–1277
As adopted by the House, this rule would permit the impeachment of verdicts by inquiry into, not the mental processes of the jurors, but what happened in terms of conduct in the jury room. This extension of the ability to impeach a verdict is felt to be unwarranted and ill-advised.
The rule passed by the House embodies a suggestion by the Advisory Committee of the Judicial Conference that is considerably broader than the final version adopted by the Supreme Court, which embodies long-accepted Federal law. Although forbidding the impeachment of verdicts by inquiry into the jurors’ mental processes, it deletes from the Supreme Court version the proscription against testimony “as to any matter or statement occurring during the course of the jury's deliberations.” This deletion would have the effect of opening verdicts up to challenge on the basis of what happened during the jury's internal deliberations, for example, where a juror alleged that the jury refused to follow the trial judge's instructions or that some of the jurors did not take part in deliberations.
Permitting an individual to attack a jury verdict based upon the jury's internal deliberations has long been recognized as unwise by the Supreme Court. In McDonald v. Pless, the Court stated:
* * * * *
[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation—to the destruction of all frankness and freedom of discussion and conference [ 238 U.S. 264, at 267 (1914)].
* * * * *
As it stands then, the rule would permit the harassment of former jurors by losing parties as well as the possible exploitation of disgruntled or otherwise badly-motivated ex-jurors.
Public policy requires a finality to litigation. And common fairness requires that absolute privacy be preserved for jurors to engage in the full and free debate necessary to the attainment of just verdicts. Jurors will not be able to function effectively if their deliberations are to be scrutinized in post-trial litigation. In the interest of protecting the jury system and the citizens who make it work, rule 606 should not permit any inquiry into the internal deliberations of the jurors.
Notes of Conference Committee, House Report No. 93–1597
Rule 606(b) deals with juror testimony in an inquiry into the validity of a verdict or indictment. The House bill provides that a juror cannot testify about his mental processes or about the effect of anything upon his or another juror's mind as influencing him to assent to or dissent from a verdict or indictment. Thus, the House bill allows a juror to testify about objective matters occurring during the jury's deliberation, such as the misconduct of another juror or the reaching of a quotient verdict. The Senate bill does not permit juror testimony about any matter or statement occurring during the course of the jury's deliberations. The Senate bill does provide, however, that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention and on the question whether any outside influence was improperly brought to bear on any juror.
The Conference adopts the Senate amendment. The Conferees believe that jurors should be encouraged to be conscientious in promptly reporting to the court misconduct that occurs during jury deliberations.
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Committee Notes on Rules—2006 Amendment
Rule 606(b) has been amended to provide that juror testimony may be used to prove that the verdict reported was the result of a mistake in entering the verdict on the verdict form. The amendment responds to a divergence between the text of the Rule and the case law that has established an exception for proof of clerical errors. See, e.g., Plummer v. Springfield Term. Ry., 5 F.3d 1, 3 (1st Cir. 1993) (“A number of circuits hold, and we agree, that juror testimony regarding an alleged clerical error, such as announcing a verdict different than that agreed upon, does not challenge the validity of the verdict or the deliberation of mental processes, and therefore is not subject to Rule 606(b).”); Teevee Toons, Inc., v. MP3.Com, Inc., 148 F.Supp.2d 276, 278 (S.D.N.Y. 2001) (noting that Rule 606(b) has been silent regarding inquiries designed to confirm the accuracy of a verdict).
In adopting the exception for proof of mistakes in entering the verdict on the verdict form, the amendment specifically rejects the broader exception, adopted by some courts, permitting the use of juror testimony to prove that the jurors were operating under a misunderstanding about the consequences of the result that they agreed upon. See, e.g., Attridge v. Cencorp Div. of Dover Techs. Int'l, Inc., 836 F.2d 113, 116 (2d Cir. 1987); Eastridge Development Co., v. Halpert Associates, Inc., 853 F.2d 772 (10th Cir. 1988). The broader exception is rejected because an inquiry into whether the jury misunderstood or misapplied an instruction goes to the jurors’ mental processes underlying the verdict, rather than the verdict's accuracy in capturing what the jurors had agreed upon. See, e.g., Karl v. Burlington Northern R.R., 880 F.2d 68, 74 (8th Cir. 1989) (error to receive juror testimony on whether verdict was the result of jurors’ misunderstanding of instructions: “The jurors did not state that the figure written by the foreman was different from that which they agreed upon, but indicated that the figure the foreman wrote down was intended to be a net figure, not a gross figure. Receiving such statements violates Rule 606(b) because the testimony relates to how the jury interpreted the court's instructions, and concerns the jurors’ ‘mental processes,’ which is forbidden by the rule.”); Robles v. Exxon Corp., 862 F.2d 1201, 1208 (5th Cir. 1989) (“the alleged error here goes to the substance of what the jury was asked to decide, necessarily implicating the jury's mental processes insofar as it questions the jury's understanding of the court's instructions and application of those instructions to the facts of the case”). Thus, the exception established by the amendment is limited to cases such as “where the jury foreperson wrote down, in response to an interrogatory, a number different from that agreed upon by the jury, or mistakenly stated that the defendant was ‘guilty’ when the jury had actually agreed that the defendant was not guilty.” Id.
It should be noted that the possibility of errors in the verdict form will be reduced substantially by polling the jury. Rule 606(b) does not, of course, prevent this precaution. See 8 C. Wigmore, Evidence, §2350 at 691 (McNaughten ed. 1961) (noting that the reasons for the rule barring juror testimony, “namely, the dangers of uncertainty and of tampering with the jurors to procure testimony, disappear in large part if such investigation as may be desired is made by the judge and takes place before the jurors’ discharge and separation”) (emphasis in original). Errors that come to light after polling the jury “may be corrected on the spot, or the jury may be sent out to continue deliberations, or, if necessary, a new trial may be ordered.” C. Mueller & L. Kirkpatrick, Evidence Under the Rules at 671 (2d ed. 1999) (citing Sincox v. United States, 571 F.2d 876, 878–79 (5th Cir. 1978)).
Changes Made After Publication and Comments. Based on public comment, the exception established in the amendment was changed from one permitting proof of a “clerical mistake” to one permitting proof that the verdict resulted from a mistake in entering the verdict onto the verdict form. The Committee Note was modified to accord with the change in the text.
Amendment by Public Law
1975 —Subd. (b). Pub. L. 94–149 substituted “which” for “what” in last sentence.
Committee Notes on Rules—2011 Amendment
The language of Rule 606 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 703. Bases of an ExpertAn expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1937; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules Facts or data upon which expert opinions are based  may, under the rule, be derived from three possible sources. The first  is the firsthand observation of the witness, with opinions based thereon  traditionally allowed. A treating physician affords an example.  Rheingold, The Basis of Medical Testimony, 15 Vand.L.Rev. 473, 489  (1962). Whether he must first relate his observations is treated in Rule  705. The second source, presentation at the trial, also reflects  existing practice. The technique may be the familiar hypothetical  question or having the expert attend the trial and hear the testimony  establishing the facts. Problems of determining what testimony the  expert relied upon, when the latter technique is employed and the  testimony is in conflict, may be resolved by resort to Rule 705. The  third source contemplated by the rule consists of presentation of data  to the expert outside of court and other than by his own perception. In  this respect the rule is designed to broaden the basis for expert  opinions beyond that current in many jurisdictions and to bring the  judicial practice into line with the practice of the experts themselves  when not in court. Thus a physician in his own practice bases his  diagnosis on information from numerous sources and of considerable  variety, including statements by patients and relatives, reports and  opinions from nurses, technicians and other doctors, hospital records,  and X rays. Most of them are admissible in evidence, but only with the  expenditure of substantial time in producing and examining various  authenticating witnesses. The physician makes life-and-death decisions  in reliance upon them. His validation, expertly performed and subject to  cross-examination, ought to suffice for judicial purposes. Rheingold, supra, at 531; McCormick §15. A similar provision is California Evidence Code §801(b). The rule also offers a more satisfactory basis for  ruling upon the admissibility of public opinion poll evidence. Attention  is directed to the validity of the techniques employed rather than to  relatively fruitless inquiries whether hearsay is involved. See Judge  Feinberg's careful analysis in Zippo Mfg. Co. v. Rogers Imports, Inc., 216 F.Supp. 670 (S.D.N.Y. 1963) See also Blum et al, The Art of Opinion Research: A  Lawyer's Appraisal of an Emerging Service, 24 U.Chi.L.Rev. 1 (1956);  Bonynge, Trademark Surveys and Techniques and Their Use in Litigation,  48 A.B.A.J. 329 (1962); Zeisel, The Uniqueness of Survey Evidence, 45  Cornell L.Q. 322 (1960); Annot., 76 A.L.R.2d 919. If it be feared that enlargement of permissible  data may tend to break down the rules of exclusion unduly, notice should  be taken that the rule requires that the facts or data “be of a type  reasonably relied upon by experts in the particular field.” The language  would not warrant admitting in evidence the opinion of an  “accidentologist” as to the point of impact in an automobile collision  based on statements of bystanders, since this requirement is not  satisfied. See Comment, Cal.Law Rev.Comm'n, Recommendation Proposing an  Evidence Code 148–150 (1965). Notes of Advisory Committee on Rules—1987 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules—2000 Amendment Rule 703 has been amended to emphasize that when an  expert reasonably relies on inadmissible information to form an opinion  or inference, the underlying information is not admissible simply  because the opinion or inference is admitted. Courts have reached  different results on how to treat inadmissible information when it is  reasonably relied upon by an expert in forming an opinion or drawing an  inference. Compare United States v. Rollins, 862 F.2d 1282 (7th Cir. 1988) (admitting, as part of the basis of an FBI agent's  expert opinion on the meaning of code language, the hearsay statements  of an informant), with United States v. 0.59 Acres of Land, 109 F.3d 1493 (9th Cir. 1997) (error to admit hearsay offered as the basis of an  expert opinion, without a limiting instruction). Commentators have also  taken differing views. See, e.g., Ronald Carlson, Policing the Bases of Modern Expert Testimony, 39 Vand.L.Rev.  577 (1986) (advocating limits on the jury's consideration of otherwise  inadmissible evidence used as the basis for an expert opinion); Paul  Rice, Inadmissible Evidence as a Basis for Expert Testimony: A Response to Professor Carlson, 40 Vand.L.Rev. 583 (1987) (advocating unrestricted use of information reasonably relied upon by an expert). When information is reasonably relied upon by an  expert and yet is admissible only for the purpose of assisting the jury  in evaluating an expert's opinion, a trial court applying this Rule must  consider the information's probative value in assisting the jury to  weigh the expert's opinion on the one hand, and the risk of prejudice  resulting from the jury's potential misuse of the information for  substantive purposes on the other. The information may be disclosed to  the jury, upon objection, only if the trial court finds that the  probative value of the information in assisting the jury to evaluate the  expert's opinion substantially outweighs its prejudicial effect. If the  otherwise inadmissible information is admitted under this balancing  test, the trial judge must give a limiting instruction upon request,  informing the jury that the underlying information must not be used for  substantive purposes. See Rule 105. In determining the appropriate course, the trial  court should consider the probable effectiveness or lack of  effectiveness of a limiting instruction under the particular  circumstances. The amendment governs only the disclosure to the  jury of information that is reasonably relied on by an expert, when that  information is not admissible for substantive purposes. It is not  intended to affect the admissibility of an expert's testimony. Nor does  the amendment prevent an expert from relying on information that is  inadmissible for substantive purposes. Nothing in this Rule restricts the presentation of underlying expert facts or data when offered by an adverse party. See Rule 705. Of course, an adversary's attack on an expert's  basis will often open the door to a proponent's rebuttal with  information that was reasonably relied upon by the expert, even if that  information would not have been discloseable initially under the  balancing test provided by this amendment. Moreover, in some  circumstances the proponent might wish to disclose information that is  relied upon by the expert in order to “remove the sting” from the  opponent's anticipated attack, and thereby prevent the jury from drawing  an unfair negative inference. The trial court should take this  consideration into account in applying the balancing test provided by  this amendment. This amendment covers facts or data that cannot be  admitted for any purpose other than to assist the jury to evaluate the  expert's opinion. The balancing test provided in this amendment is not  applicable to facts or data that are admissible for any other purpose  but have not yet been offered for such a purpose at the time the expert  testifies. The amendment provides a presumption against  disclosure to the jury of information used as the basis of an expert's  opinion and not admissible for any substantive purpose, when that  information is offered by the proponent of the expert. In a multi-party  case, where one party proffers an expert whose testimony is also  beneficial to other parties, each such party should be deemed a  “proponent” within the meaning of the amendment. GAP Report—Proposed Amendment to Rule 703. The Committee made the following changes to the published draft of the proposed amendment to Evidence Rule 703: 1. A minor stylistic change was made in the text,  in accordance with the suggestion of the Style Subcommittee of the  Standing Committee on Rules of Practice and Procedure. 2. The words “in assisting the jury to evaluate the  expert's opinion” were added to the text, to specify the proper purpose  for offering the otherwise inadmissible information relied on by an  expert. The Committee Note was revised to accord with this change in the  text. 3. Stylistic changes were made to the Committee Note. 4. The Committee Note was revised to emphasize that  the balancing test set forth in the proposal should be used to  determine whether an expert's basis may be disclosed to the jury either  (1) in rebuttal or (2) on direct examination to “remove the sting” of an  opponent's anticipated attack on an expert's basis. Committee Notes on Rules—2011 Amendment The  language of Rule 703 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. The  Committee deleted all reference to an “inference” on the grounds that the  deletion made the Rule flow better and easier to read, and because any  “inference” is covered by the broader term “opinion.” Courts have not made  substantive decisions on the basis of any distinction between an opinion and an  inference. No change in current practice is intended.


Rule 104. Preliminary Questions(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
(1) the hearing involves the admissibility of a confession;
(2) a defendant in a criminal case is a witness and so requests; or
(3) justice so requires.
(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.
(e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
Notes
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1930; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.)
Notes of the Advisory Committee on Proposed Rules
Subdivision (a). The applicability of a particular rule of evidence often depends upon the existence of a condition. Is the alleged expert a qualified physician? Is a witness whose former testimony is offered unavailable? Was a stranger present during a conversation between attorney and client? In each instance the admissibility of evidence will turn upon the answer to the question of the existence of the condition. Accepted practice, incorporated in the rule, places on the judge the responsibility for these determinations. McCormick §53; Morgan, Basic Problems of Evidence 45–50 (1962).
To the extent that these inquiries are factual, the judge acts as a trier of fact. Often, however, rulings on evidence call for an evaluation in terms of a legally set standard. Thus when a hearsay statement is offered as a declaration against interest, a decision must be made whether it possesses the required against-interest characteristics. These decisions, too, are made by the judge.
In view of these considerations, this subdivision refers to preliminary requirements generally by the broad term “questions,” without attempt at specification.
This subdivision is of general application. It must, however, be read as subject to the special provisions for “conditional relevancy” in subdivision (b) and those for confessions in subdivision (d).
If the question is factual in nature, the judge will of necessity receive evidence pro and con on the issue. The rule provides that the rules of evidence in general do not apply to this process. McCormick §53, p. 123, n. 8, points out that the authorities are “scattered and inconclusive,” and observes:
“Should the exclusionary law of evidence, ‘the child of the jury system’ in Thayer's phrase, be applied to this hearing before the judge? Sound sense backs the view that it should not, and that the judge should be empowered to hear any relevant evidence, such as affidavits or other reliable hearsay.”
This view is reinforced by practical necessity in certain situations. An item, offered and objected to, may itself be considered in ruling on admissibility, though not yet admitted in evidence. Thus the content of an asserted declaration against interest must be considered in ruling whether it is against interest. Again, common practice calls for considering the testimony of a witness, particularly a child, in determining competency. Another example is the requirement of Rule 602 dealing with personal knowledge. In the case of hearsay, it is enough, if the declarant “so far as appears [has] had an opportunity to observe the fact declared.” McCormick, §10, p. 19.
If concern is felt over the use of affidavits by the judge in preliminary hearings on admissibility, attention is directed to the many important judicial determinations made on the basis of affidavits. Rule 47 of the Federal Rules of Criminal Procedure provides:
“An application to the court for an order shall be by motion * * * It may be supported by affidavit.”
The Rules of Civil Procedure are more detailed. Rule 43(e), dealing with motions generally, provides:
“When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.”
Rule 4(g) provides for proof of service by affidavit. Rule 56 provides in detail for the entry of summary judgment based on affidavits. Affidavits may supply the foundation for temporary restraining orders under Rule 65(b).
The study made for the California Law Revision Commission recommended an amendment to Uniform Rule 2 as follows:
“In the determination of the issue aforesaid [preliminary determination], exclusionary rules shall not apply, subject, however, to Rule 45 and any valid claim of privilege.” Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Article VIII, Hearsay), Cal. Law Revision Comm'n, Rep., Rec. & Studies, 470 (1962). The proposal was not adopted in the California Evidence Code. The Uniform Rules are likewise silent on the subject. However, New Jersey Evidence Rule 8(1), dealing with preliminary inquiry by the judge, provides:
“In his determination the rules of evidence shall not apply except for Rule 4 [exclusion on grounds of confusion, etc.] or a valid claim of privilege.”
Subdivision (b). In some situations, the relevancy of an item of evidence, in the large sense, depends upon the existence of a particular preliminary fact. Thus when a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it. Or if a letter purporting to be from Y is relied upon to establish an admission by him, it has no probative value unless Y wrote or authorized it. Relevance in this sense has been labelled “conditional relevancy.” Morgan, Basic Problems of Evidence 45–46 (1962). Problems arising in connection with it are to be distinguished from problems of logical relevancy, e.g. evidence in a murder case that accused on the day before purchased a weapon of the kind used in the killing, treated in Rule 401.
If preliminary questions of conditional relevancy were determined solely by the judge, as provided in subdivision (a), the functioning of the jury as a trier of fact would be greatly restricted and in some cases virtually destroyed. These are appropriate questions for juries. Accepted treatment, as provided in the rule, is consistent with that given fact questions generally. The judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted. If after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not established, the issue is for them. If the evidence is not such as to allow a finding, the judge withdraws the matter from their consideration. Morgan, supra; California Evidence Code §403; New Jersey Rule 8(2). See also Uniform Rules 19 and 67.
The order of proof here, as generally, is subject to the control of the judge.
Subdivision (c). Preliminary hearings on the admissibility of confessions must be conducted outside the hearing of the jury. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Otherwise, detailed treatment of when preliminary matters should be heard outside the hearing of the jury is not feasible. The procedure is time consuming. Not infrequently the same evidence which is relevant to the issue of establishment of fulfillment of a condition precedent to admissibility is also relevant to weight or credibility, and time is saved by taking foundation proof in the presence of the jury. Much evidence on preliminary questions, though not relevant to jury issues, may be heard by the jury with no adverse effect. A great deal must be left to the discretion of the judge who will act as the interests of justice require.
Subdivision (d). The limitation upon cross-examination is designed to encourage participation by the accused in the determination of preliminary matters. He may testify concerning them without exposing himself to cross-examination generally. The provision is necessary because of the breadth of cross-examination under Rule 611(b).
The rule does not address itself to questions of the subsequent use of testimony given by an accused at a hearing on a preliminary matter. See Walder v. United States, 347 U.S. 62 (1954): Simmons v. United States, 390 U.S. 377 (1968): Harris v. New York, 401 U.S. 222 (1971)
Subdivision (e). For similar provisions see Uniform Rule 8; California Evidence Code §406; Kansas Code of Civil Procedure §60–408; New Jersey Evidence Rule 8(1).
Notes of Committee on the Judiciary, House Report No. 93–650
Rule 104(c) as submitted to the Congress provided that hearings on the admissibility of confessions shall be conducted outside the presence of the jury and hearings on all other preliminary matters should be so conducted when the interests of justice require. The Committee amended the Rule to provide that where an accused is a witness as to a preliminary matter, he has the right, upon his request, to be heard outside the jury's presence. Although recognizing that in some cases duplication of evidence would occur and that the procedure could be subject to abuse, the Committee believed that a proper regard for the right of an accused not to testify generally in the case dictates that he be given an option to testify out of the presence of the jury on preliminary matters.
The Committee construes the second sentence of subdivision (c) as applying to civil actions and proceedings as well as to criminal cases, and on this assumption has left the sentence unamended.
Notes of Committee on the Judiciary, Senate Report No. 93–1277
Under rule 104(c) the hearing on a preliminary matter may at times be conducted in front of the jury. Should an accused testify in such a hearing, waiving his privilege against self-incrimination as to the preliminary issue, rule 104(d) provides that he will not generally be subject to cross-examination as to any other issue. This rule is not, however, intended to immunize the accused from cross-examination where, in testifying about a preliminary issue, he injects other issues into the hearing. If he could not be cross-examined about any issues gratuitously raised by him beyond the scope of the preliminary matters, injustice result. Accordingly, in order to prevent any such unjust result, the committee intends the rule to be construed to provide that the accused may subject himself to cross-examination as to issues raised by his own testimony upon a preliminary matter before a jury.
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Committee Notes on Rules—2011 Amendment
The language of Rule 104 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 601. Competency to Testify in GeneralEvery person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1934; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules This general ground-clearing eliminates all grounds  of incompetency not specifically recognized in the succeeding rules of  this Article. Included among the grounds thus abolished are religious  belief, conviction of crime, and connection with the litigation as a  party or interested person or spouse of a party or interested person.  With the exception of the so-called Dead Man's Acts, American  jurisdictions generally have ceased to recognize these grounds. The Dead Man's Acts are surviving traces of the  common law disqualification of parties and interested persons. They  exist in variety too great to convey conviction of their wisdom and  effectiveness. These rules contain no provision of this kind. For the  reasoning underlying the decision not to give effect to state statutes  in diversity cases, see the Advisory Committee's Note to Rule 501. No mental or moral qualifications for testifying as  a witness are specified. Standards of mental capacity have proved  elusive in actual application. A leading commentator observes that few  witnesses are disqualified on that ground. Weihofen, Testimonial  Competence and Credibility, 34 Geo. Wash.L.Rev. 53 (1965). Discretion is  regularly exercised in favor of allowing the testimony. A witness  wholly without capacity is difficult to imagine. The question is one  particularly suited to the jury as one of weight and credibility,  subject to judicial authority to review the sufficiency of the evidence.  2 Wigmore §§501, 509. Standards of moral qualification in practice  consist essentially of evaluating a person's truthfulness in terms of  his own answers about it. Their principal utility is in affording an  opportunity on voir dire examination to impress upon the witness his  moral duty. This result may, however, be accomplished more directly, and  without haggling in terms of legal standards, by the manner of  administering the oath or affirmation under Rule 603. Admissibility of religious belief as a ground of  impeachment is treated in Rule 610. Conviction of crime as a ground of  impeachment is the subject of Rule 609. Marital relationship is the  basis for privilege under Rule 505. Interest in the outcome of  litigation and mental capacity are, of course, highly relevant to  credibility and require no special treatment to render them admissible  along with other matters bearing upon the perception, memory, and  narration of witnesses. Notes of Committee on the Judiciary, House Report No. 93–650 Rule 601 as submitted to the Congress provided that  “Every person is competent to be a witness except as otherwise provided  in these rules.” One effect of the Rule as proposed would have been to  abolish age, mental capacity, and other grounds recognized in some State  jurisdictions as making a person incompetent as a witness. The greatest  controversy centered around the Rule's rendering inapplicable in the  federal courts the so-called Dead Man's Statutes which exist in some  States. Acknowledging that there is substantial disagreement as to the  merit of Dead Man's Statutes, the Committee nevertheless believed that  where such statutes have been enacted they represent State policy which  should not be overturned in the absence of a compelling federal  interest. The Committee therefore amended the Rule to make competency in  civil actions determinable in accordance with State law with respect to  elements of claims or defenses as to which State law supplies the rule  of decision. Cf. Courtland v. Walston & Co., Inc., 340 F.Supp. 1076, 1087–1092 (S.D.N.Y. 1972). Notes of Committee on the Judiciary, Senate Report No. 93–1277 The amendment to rule 601 parallels the treatment accorded rule 501 discussed immediately above. Notes of Conference Committee, House Report No. 93–1597 Rule 601 deals with competency of witnesses. Both  the House and Senate bills provide that federal competency law applies  in criminal cases. In civil actions and proceedings, the House bill  provides that state competency law applies “to an element of a claim or  defense as to which State law supplies the rule of decision.” The Senate  bill provides that “in civil actions and proceedings arising under 28 U.S.C. §1332 or 28 U.S.C. §1335, or between citizens of different States and removed under 28 U.S.C. §1441(b) the competency of a witness, person, government, State or political  subdivision thereof is determined in accordance with State law, unless  with respect to the particular claim or defense, Federal law supplies  the rule of decision.” The wording of the House and Senate bills differs  in the treatment of civil actions and proceedings. The rule in the House  bill applies to evidence that relates to “an element of a claim or  defense.” If an item of proof tends to support or defeat a claim or  defense, or an element of a claim or defense, and if state law supplies  the rule of decision for that claim or defense, then state competency  law applies to that item of proof. For reasons similar to those underlying its action on Rule 501, the Conference adopts the House provision. Committee Notes on Rules—2011 Amendment The language of Rule 601 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 1003. Admissibility of DuplicatesA duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1946; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules When the only concern is with getting the words or  other contents before the court with accuracy and precision, then a  counterpart serves equally as well as the original, if the counterpart  is the product of a method which insures accuracy and genuineness. By  definition in Rule 1001(4), supra, a “duplicate” possesses this character. Therefore, if no genuine issue exists as to  authenticity and no other reason exists for requiring the original, a  duplicate is admissible under the rule. This position finds support in  the decisions, Myrick v. United States, 332 F.2d 279 (5th Cir. 1964), no error in admitting photostatic copies of checks  instead of original microfilm in absence of suggestion to trial judge  that photostats were incorrect; Johns v. United States, 323 F.2d 421 (5th Cir. 1963), not error to admit concededly accurate tape recording made from original wire recording; Sauget v. Johnston, 315 F.2d 816 (9th Cir. 1963), not error to admit copy of agreement when opponent had  original and did not on appeal claim any discrepancy. Other reasons for  requiring the original may be present when only a part of the original  is reproduced and the remainder is needed for cross-examination or may  disclose matters qualifying the part offered or otherwise useful to the  opposing party. United States v. Alexander, 326 F.2d 736 (4th Cir. 1964). And see Toho Bussan Kaisha, Ltd. v. American President Lines, Ltd., 265 F.2d 418, 76 A.L.R.2d 1344 (2d Cir. 1959). Notes of Committee on the Judiciary, House Report No. 93–650 The Committee approved this Rule in the form  submitted by the Court, with the expectation that the courts would be  liberal in deciding that a “genuine question is raised as to the  authenticity of the original.” Committee Notes on Rules—2011 Amendment The  language of Rule 1003 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 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other ReasonsThe court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1932; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules The case law recognizes that certain circumstances  call for the exclusion of evidence which is of unquestioned relevance.  These circumstances entail risks which range all the way from inducing  decision on a purely emotional basis, at one extreme, to nothing more  harmful than merely wasting time, at the other extreme. Situations in  this area call for balancing the probative value of and need for the  evidence against the harm likely to result from its admission. Slough,  Relevancy Unraveled, 5 Kan. L. Rev. 1, 12–15 (1956); Trautman, Logical  or Legal Relevancy—A Conflict in Theory, 5 Van. L. Rev. 385, 392 (1952);  McCormick §152, pp. 319–321. The rules which follow in this Article are  concrete applications evolved for particular situations. However, they  reflect the policies underlying the present rule, which is designed as a  guide for the handling of situations for which no specific rules have  been formulated. Exclusion for risk of unfair prejudice, confusion  of issues, misleading the jury, or waste of time, all find ample support  in the authorities. “Unfair prejudice” within its context means an  undue tendency to suggest decision on an improper basis, commonly,  though not necessarily, an emotional one. The rule does not enumerate surprise as a ground  for exclusion, in this respect following Wigmore's view of the common  law. 6 Wigmore §1849. Cf. McCormick §152, p. 320, n. 29, listing unfair  surprise as a ground for exclusion but stating that it is usually  “coupled with the danger of prejudice and confusion of issues.” While  Uniform Rule 45 incorporates surprise as a ground and is followed in  Kansas Code of Civil Procedure §60–445, surprise is not included in  California Evidence Code §352 or New Jersey Rule 4, though both the  latter otherwise substantially embody Uniform Rule 45. While it can  scarcely be doubted that claims of unfair surprise may still be  justified despite procedural requirements of notice and  instrumentalities of discovery, the granting of a continuance is a more  appropriate remedy than exclusion of the evidence. Tentative  Recommendation and a Study Relating to the Uniform Rules of Evidence  (Art. VI. Extrinsic Policies Affecting Admissibility), Cal. Law Revision  Comm'n, Rep., Rec. & Studies, 612 (1964). Moreover, the impact of a  rule excluding evidence on the ground of surprise would be difficult to  estimate. In reaching a decision whether to exclude on  grounds of unfair prejudice, consideration should be given to the  probable effectiveness or lack of effectiveness of a limiting  instruction. See Rule 106 [now 105] and Advisory Committee's Note  thereunder. The availability of other means of proof may also be an  appropriate factor. Committee Notes on Rules—2011 Amendment The language of Rule 403 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.