Rule 1007. Testimony or Statement of a Party to Prove ContentThe proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1947; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules While the parent case, Slatterie v. Pooley, 6 M. & W. 664, 151 Eng. Rep. 579  (Exch. 1840), allows proof of contents by evidence of an oral admission  by the party against whom offered, without accounting for nonproduction  of the original, the risk of inaccuracy is substantial and the decision  is at odds with the purpose of the rule giving preference to the  original. See 4 Wigmore §1255. The instant rule follows Professor  McCormick's suggestion of limiting this use of admissions to those made  in the course of giving testimony or in writing. McCormick §208, p. 424.  The limitation, of course, does not call for excluding evidence of an  oral admission when nonproduction of the original has been accounted for  and secondary evidence generally has become admissible. Rule 1004, supra. A similar provision is contained in New Jersey Evidence Rule 70(1)(h). 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 1007 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 102. PurposeThese rules should be construed so as to  administer every proceeding fairly, eliminate unjustifiable expense and  delay, and promote the development of evidence law, to the end of  ascertaining the truth and securing a just determination. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1929; Apr. 26, 2011, eff. Dec. 1, 2011. ) Notes of Advisory Committee on Proposed Rules For similar provisions see Rule 2 of the Federal Rules of Criminal Procedure, Rule 1 of the Federal Rules of Civil Procedure, California Evidence Code §2, and New Jersey Evidence Rule 5. Committee Notes on Rules—2000 Amendment The  language of Rule 102 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 1004. Admissibility of Other Evidence of ContentAn original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: (a) all the originals are lost or destroyed, and not by the proponent acting in bad faith; (b) an original cannot be obtained by any available judicial process; (c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or (d) the writing, recording, or photograph is not closely related to a controlling issue. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1946; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules Basically the rule requiring the production of the  original as proof of contents has developed as a rule of preference: if  failure to produce the original is satisfactory explained, secondary  evidence is admissible. The instant rule specifies the circumstances  under which production of the original is excused. The rule recognizes no “degrees” of secondary  evidence. While strict logic might call for extending the principle of  preference beyond simply preferring the original, the formulation of a  hierarchy of preferences and a procedure for making it effective is  believed to involve unwarranted complexities. Most, if not all, that  would be accomplished by an extended scheme of preferences will, in any  event, be achieved through the normal motivation of a party to present  the most convincing evidence possible and the arguments and procedures  available to his opponent if he does not. Compare McCormick §207. Paragraph (1). Loss or destruction of the original, unless due  to bad faith of the proponent, is a satisfactory explanation of  nonproduction. McCormick §201. Paragraph (2). When the original is in the possession of a  third person, inability to procure it from him by resort to process or  other judicial procedure is sufficient explanation of nonproduction.  Judicial procedure includes subpoena duces tecum as an incident to the  taking of a deposition in another jurisdiction. No further showing is  required. See McCormick §202. Paragraph (3). A party who has an original in his control has  no need for the protection of the rule if put on notice that proof of  contents will be made. He can ward off secondary evidence by offering  the original. The notice procedure here provided is not to be confused  with orders to produce or other discovery procedures, as the purpose of  the procedure under this rule is to afford the opposite party an  opportunity to produce the original, not to compel him to do so.  McCormick §203. Paragraph (4). While difficult to define with precision,  situations arise in which no good purpose is served by production of the  original. Examples are the newspaper in an action for the price of  publishing defendant's advertisement, Foster-Holcomb Investment Co. v. Little Rock Publishing Co., 151 Ark. 449, 236 S.W. 597 (1922), and the streetcar transfer of plaintiff claiming status as a passenger, Chicago City Ry. Co. v. Carroll, 206 Ill. 318, 68 N.E. 1087 (1903). Numerous cases are collected in McCormick §200, p. 412, n. 1. Notes of Committee on the Judiciary, House Report No. 93–650 The Committee approved Rule 1004(1) in the form  submitted to Congress. However, the Committee intends that loss or  destruction of an original by another person at the instigation of the  proponent should be considered as tantamount to loss or destruction in  bad faith by the proponent himself. 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 1004 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 706. Court-Appointed Expert Witnesses(a) Appointment Process. On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act. (b) Expert’s Role. The court must inform the expert of the expert’s duties. The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. The expert: (1) must advise the parties of any findings the expert makes; (2) may be deposed by any party; (3) may be called to testify by the court or any party; and (4) may be cross-examined by any party, including the party that called the expert. (c) Compensation. The expert is entitled to a reasonable compensation, as set by the court. The compensation is payable as follows: (1) in a criminal case or in a civil case involving just compensation under the Fifth Amendment, from any funds that are provided by law; and (2) in any other civil case, by the parties in the proportion and at the time that the court directs — and the compensation is then charged like other costs. (d) Disclosing the Appointment to the Jury. The court may authorize disclosure to the jury that the court appointed the expert. (e) Parties’ Choice of Their Own Experts. This rule does not limit a party in calling its own experts. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1938; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules The practice of shopping for experts, the venality  of some experts, and the reluctance of many reputable experts to involve  themselves in litigation, have been matters of deep concern. Though the  contention is made that court appointed experts acquire an aura of  infallibility to which they are not entitled. Levy, Impartial Medical  Testimony—Revisited, 34 Temple L.Q. 416 (1961), the trend is  increasingly to provide for their use. While experience indicates that  actual appointment is a relatively infrequent occurrence, the assumption  may be made that the availability of the procedure in itself decreases  the need for resorting to it. The ever-present possibility that the  judge may appoint an expert in a given case must inevitably exert a  sobering effect on the expert witness of a party and upon the person  utilizing his services. The inherent power of a trial judge to appoint an expert of his own choosing is virtually unquestioned. Scott v. Spanjer Bros., Inc., 298 F.2d 928 (2d Cir. 1962); Danville Tobacco Assn. v. Bryant-Buckner Associates, Inc., 333 F.2d 202 (4th Cir. 1964); Sink, The Unused Power of a Federal Judge to Call His  Own Expert Witnesses, 29 S.Cal.L.Rev. 195 (1956); 2 Wigmore §563, 9 Id. §2484; Annot., 95 A.L.R.2d 383. Hence the problem becomes largely one of detail. The New York plan is well known and is described in  Report by Special Committee of the Association of the Bar of the City  of New York: Impartial Medical Testimony (1956). On recommendation of  the Section of Judicial Administration, local adoption of an impartial  medical plan was endorsed by the American Bar Association. 82 A.B.A.Rep.  184–185 (1957). Descriptions and analyses of plans in effect in various  parts of the country are found in Van Dusen, A United States District  Judge's View of the Impartial Medical Expert System, 322 F.R.D. 498  (1963); Wick and Kightlinger, Impartial Medical Testimony Under the  Federal Civil Rules: A Tale of Three Doctors, 34 Ins. Counsel J. 115  (1967); and numerous articles collected in Klein, Judicial  Administration and the Legal Profession 393 (1963). Statutes and rules  include California Evidence Code §§730–733; Illinois Supreme Court Rule  215(d), Ill.Rev.Stat.1969, c. 110A, §215(d); Burns Indiana Stats. 1956,  §9–1702; Wisconsin Stats.Annot.1958, §957.27. In the federal practice, a comprehensive scheme for court appointed experts was initiated with the adoption of Rule 28 of the Federal Rules of Criminal Procedure in 1946. The Judicial Conference of the United States in 1953  considered court appointed experts in civil cases, but only with respect  to whether they should be compensated from public funds, a proposal  which was rejected. Report of the Judicial Conference of the United  States 23 (1953). The present rule expands the practice to include civil  cases. Subdivision (a) is based on Rule 28 of the Federal Rules of  Criminal Procedure, with a few changes, mainly in the interest of  clarity. Language has been added to provide specifically for the  appointment either on motion of a party or on the judge's own motion. A  provision subjecting the court appointed expert to deposition procedures  has been incorporated. The rule has been revised to make definite the  right of any party, including the party calling him, to cross-examine. Subdivision (b) combines the present provision for compensation  in criminal cases with what seems to be a fair and feasible handling of  civil cases, originally found in the Model Act and carried from there  into Uniform Rule 60. See also California Evidence Code §§730–731. The  special provision for Fifth Amendment compensation cases is designed to  guard against reducing constitutionally guaranteed just compensation by  requiring the recipient to pay costs. See Rule 71A(l) of the Rules of Civil Procedure. Subdivision (c) seems to be essential if the use of court appointed experts is to be fully effective. Uniform Rule 61 so provides. Subdivision (d) is in essence the last sentence of Rule 28(a) of the Federal Rules of Criminal Procedure. 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 706 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 705. Disclosing the Facts or Data Underlying an ExpertUnless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1938; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules The hypothetical question has been the target of a  great deal of criticism as encouraging partisan bias, affording an  opportunity for summing up in the middle of the case, and as complex and  time consuming. Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 426–427  (1952). While the rule allows counsel to make disclosure of the  underlying facts or data as a preliminary to the giving of an expert  opinion, if he chooses, the instances in which he is required to do so  are reduced. This is true whether the expert bases his opinion on data  furnished him at secondhand or observed by him at firsthand. The elimination of the requirement of preliminary  disclosure at the trial of underlying facts or data has a long  background of support. In 1937 the Commissioners on Uniform State Laws  incorporated a provision to this effect in the Model Expert Testimony  Act, which furnished the basis for Uniform Rules 57 and 58. Rule 4515, N.Y. CPLR (McKinney 1963), provides: “Unless the court orders otherwise, questions  calling for the opinion of an expert witness need not be hypothetical in  form, and the witness may state his opinion and reasons without first  specifying the data upon which it is based. Upon cross-examination, he  may be required to specify the data * * *,” See also California Evidence Code §802; Kansas Code of Civil Procedure §§60–456, 60–457; New Jersey Evidence Rules 57, 58. If the objection is made that leaving it to the  cross-examiner to bring out the supporting data is essentially unfair,  the answer is that he is under no compulsion to bring out any facts or  data except those unfavorable to the opinion. The answer assumes that  the cross-examiner has the advance knowledge which is essential for  effective cross-examination. This advance knowledge has been afforded,  though imperfectly, by the traditional foundation requirement. Rule  26(b)(4) of the Rules of Civil Procedure, as revised, provides for  substantial discovery in this area, obviating in large measure the  obstacles which have been raised in some instances to discovery of  findings, underlying data, and even the identity of the experts.  Friedenthal, Discovery and Use of an Adverse Party's Expert Information,  14 Stan.L.Rev. 455 (1962). These safeguards are reinforced by the discretionary power of the judge to require preliminary disclosure in any event. Notes of Advisory Committee on Rules—1987 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules—1993 Amendment This rule, which relates to the manner of  presenting testimony at trial, is revised to avoid an arguable conflict  with revised Rules 26(a)(2)(B) and 26(e)(1) of the Federal Rules of Civil Procedure or with revised Rule 16 of the Federal Rules of Criminal Procedure,  which require disclosure in advance of trial of the basis and reasons  for an expert's opinions. If a serious question is raised under Rule 702 or  703 as to the admissibility of expert testimony, disclosure of the  underlying facts or data on which opinions are based may, of course, be  needed by the court before deciding whether, and to what extent, the  person should be allowed to testify. This rule does not preclude such an  inquiry. Committee Notes on Rules—2011 Amendment The  language of Rule 705 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 406. Habit; Routine PracticeEvidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. 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 An oft-quoted paragraph, McCormick, §162, p. 340, describes habit in terms effectively contrasting it with character: “Character and habit are close akin. Character is a  generalized description of one's disposition, or of one's disposition  in respect to a general trait, such as honesty, temperance, or  peacefulness. ‘Habit,’ in modern usage, both lay and psychological, is  more specific. It describes one's regular response to a repeated  specific situation. If we speak of character for care, we think of the  person's tendency to act prudently in all the varying situations of  life, in business, family life, in handling automobiles and in walking  across the street. A habit, on the other hand, is the person's regular  practice of meeting a particular kind of situation with a specific type  of conduct, such as the habit of going down a particular stairway two  stairs at a time, or of giving the hand-signal for a left turn, or of  alighting from railway cars while they are moving. The doing of the  habitual acts may become semi-automatic.” Equivalent behavior on the  part of a group is designated “routine practice of an organization” in  the rule. Agreement is general that habit evidence is highly  persuasive as proof of conduct on a particular occasion. Again quoting  McCormick §162, p. 341: “Character may be thought of as the sum of one's  habits though doubtless it is more than this. But unquestionably the  uniformity of one's response to habit is far greater than the  consistency with which one's conduct conforms to character or  disposition. Even though character comes in only exceptionally as  evidence of an act, surely any sensible man in investigating whether X  did a particular act would be greatly helped in his inquiry by evidence  as to whether he was in the habit of doing it.” When disagreement has appeared, its focus has been  upon the question what constitutes habit, and the reason for this is  readily apparent. The extent to which instances must be multiplied and  consistency of behavior maintained in order to rise to the status of  habit inevitably gives rise to differences of opinion. Lewan, Rationale  of Habit Evidence, 16 Syracuse L.Rev. 39, 49 (1964). While adequacy of  sampling and uniformity of response are key factors, precise standards  for measuring their sufficiency for evidence purposes cannot be  formulated. The rule is consistent with prevailing views. Much  evidence is excluded simply because of failure to achieve the status of  habit. Thus, evidence of intemperate “habits” is generally excluded when  offered as proof of drunkenness in accident cases, Annot., 46 A.L.R.2d  103, and evidence of other assaults is inadmissible to prove the instant  one in a civil assault action, Annot., 66 A.L.R.2d 806. In Levin v. United States, 119 U.S.App.D.C. 156, 338 F.2d 265 (1964), testimony as to the religious “habits” of the accused, offered  as tending to prove that he was at home observing the Sabbath rather  than out obtaining money through larceny by trick, was held properly  excluded; “It seems apparent to us that an individual's  religious practices would not be the type of activities which would lend  themselves to the characterization of ‘invariable regularity.’ [1  Wigmore 520.] Certainly the very volitional basis of the activity raises  serious questions as to its invariable nature, and hence its probative  value.” Id. at 272. These rulings are not inconsistent with the  trend towards admitting evidence of business transactions between one of  the parties and a third person as tending to prove that he made the  same bargain or proposal in the litigated situation. Slough, Relevancy  Unraveled, 6 Kan.L.Rev. 38–41 (1957). Nor are they inconsistent with  such cases as Whittemore v. Lockheed Aircraft Corp., 65 Cal.App.2d 737, 151 P.2d 670 (1944), upholding the admission of evidence that plaintiff's intestate  had on four other occasions flown planes from defendant's factory for  delivery to his employer airline, offered to prove that he was piloting  rather than a guest on a plane which crashed and killed all on board  while en route for delivery. A considerable body of authority has required that  evidence of the routine practice of an organization be corroborated as a  condition precedent to its admission in evidence. Slough, Relevancy  Unraveled, 5 Kan.L.Rev. 404, 449 (1957). This requirement is  specifically rejected by the rule on the ground that it relates to the  sufficiency of the evidence rather than admissibility. A similar  position is taken in New Jersey Rule 49. The rule also rejects the  requirement of the absence of eyewitnesses, sometimes encountered with  respect to admitting habit evidence to prove freedom from contributory  negligence in wrongful death cases. For comment critical of the  requirements see Frank, J., in Cereste v. New York, N.H. & H.R. Co., 231 F.2d 50 (2d Cir. 1956), cert. denied 351 U.S. 951, 76 S.Ct. 848, 100 L.Ed 1475, 10 Vand.L.Rev. 447 (1957); McCormick §162, p.  342. The omission of the requirement from the California Evidence Code  is said to have effected its elimination. Comment, Cal.Ev.Code §1105. Committee Notes on Rules—2011 Amendment The language of Rule 406 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 704. Opinion on an Ultimate Issue(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue. (b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1937; Pub. L. 98–473, title II, §406, Oct. 12, 1984, 98 Stat. 2067; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules The basic approach to opinions, lay and expert, in  these rules is to admit them when helpful to the trier of fact. In order  to render this approach fully effective and to allay any doubt on the  subject, the so-called “ultimate issue” rule is specifically abolished  by the instant rule. The older cases often contained strictures against  allowing witnesses to express opinions upon ultimate issues, as a  particular aspect of the rule against opinions. The rule was unduly  restrictive, difficult of application, and generally served only to  deprive the trier of fact of useful information. 7 Wigmore §§1920, 1921;  McCormick §12. The basis usually assigned for the rule, to prevent the  witness from “usurping the province of the jury,” is aptly characterized  as “empty rhetoric.” 7 Wigmore §1920, p. 17. Efforts to meet the felt  needs of particular situations led to odd verbal circumlocutions which  were said not to violate the rule. Thus a witness could express his  estimate of the criminal responsibility of an accused in terms of sanity  or insanity, but not in terms of ability to tell right from wrong or  other more modern standard. And in cases of medical causation, witnesses  were sometimes required to couch their opinions in cautious phrases of  “might or could,” rather than “did,” though the result was to deprive  many opinions of the positiveness to which they were entitled,  accompanied by the hazard of a ruling of insufficiency to support a  verdict. In other instances the rule was simply disregarded, and, as  concessions to need, opinions were allowed upon such matters as  intoxication, speed, handwriting, and value, although more precise  coincidence with an ultimate issue would scarcely be possible. Many modern decisions illustrate the trend to abandon the rule completely. People v. Wilson, 25 Cal.2d 341, 153 P.2d 720 (1944), whether abortion necessary to save life of patient; Clifford-Jacobs Forging Co. v. Industrial Comm., 19 Ill.2d 236, 166 N.E.2d 582 (1960), medical causation; Dowling v. L. H. Shattuck, Inc., 91 N.H. 234, 17 A.2d 529 (1941), proper method of shoring ditch; Schweiger v. Solbeck, 191 Or. 454, 230 P.2d 195 (1951), cause of landslide. In each instance the opinion was allowed. The abolition of the ultimate issue rule does not  lower the bars so as to admit all opinions. Under Rules 701 and 702,  opinions must be helpful to the trier of fact, and Rule 403 provides for  exclusion of evidence which wastes time. These provisions afford ample  assurances against the admission of opinions which would merely tell the  jury what result to reach, somewhat in the manner of the oath-helpers  of an earlier day. They also stand ready to exclude opinions phrased in  terms of inadequately explored legal criteria. Thus the question, “Did T  have capacity to make a will?” would be excluded, while the question,  “Did T have sufficient mental capacity to know the nature and extent of  his property and the natural objects of his bounty and to formulate a  rational scheme of distribution?” would be allowed. McCormick §12. For similar provisions see Uniform Rule 56(4);  California Evidence Code §805; Kansas Code of Civil Procedures  §60–456(d); New Jersey Evidence Rule 56(3). Amendment by Public Law 1984 —Pub. L. 98–473 designated existing provisions as subd. (a),  inserted “Except as provided in subdivision (b)”, and added subd. (b). Committee Notes on Rules—2011 Amendment The  language of Rule 704 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 901. Authenticating or Identifying Evidence(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. (b) Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement: (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be. (2) Nonexpert Opinion About Handwriting.   A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation. (3) Comparison by an Expert Witness or the Trier of Fact.   A comparison with an authenticated specimen by an expert witness or the trier of fact. (4) Distinctive Characteristics and the Like.   The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances. (5) Opinion About a Voice. An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker. (6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to: (A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone. (7) Evidence About Public Records. Evidence that: (A) a document was recorded or filed in a public office as authorized by law; or (B) a purported public record or statement is from the office where items of this kind are kept. (8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it: (A) is in a condition that creates no suspicion about its authenticity; (B) was in a place where, if authentic, it would likely be; and (C) is at least 20 years old when offered. (9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result. (10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court. 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 Subdivision (a). Authentication and identification represent a  special aspect of relevancy. Michael and Adler, Real Proof, 5  Vand.L.Rev. 344, 362 (1952); McCormick §§179, 185; Morgan, Basic  Problems of Evidence 378. (1962). Thus a telephone conversation may be  irrelevant because on an unrelated topic or because the speaker is not  identified. The latter aspect is the one here involved. Wigmore  describes the need for authentication as “an inherent logical  necessity.” 7 Wigmore §2129, p. 564. This requirement of showing authenticity or  identity fails in the category of relevancy dependent upon fulfillment  of a condition of fact and is governed by the procedure set forth in  Rule 104(b). The common law approach to authentication of  documents has been criticized as an “attitude of agnosticism,”  McCormick, Cases on Evidence 388, n. 4 (3rd ed. 1956), as one which  “departs sharply from men's customs in ordinary affairs,” and as  presenting only a slight obstacle to the introduction of forgeries in  comparison to the time and expense devoted to proving genuine writings  which correctly show their origin on their face, McCormick §185, pp.  395, 396. Today, such available procedures as requests to admit and  pretrial conference afford the means of eliminating much of the need for  authentication or identification. Also, significant inroads upon the  traditional insistence on authentication and identification have been  made by accepting as at least prima facie genuine items of the kind  treated in Rule 902, infra. However, the need for suitable methods of proof still  remains, since criminal cases pose their own obstacles to the use of  preliminary procedures, unforeseen contingencies may arise, and cases of  genuine controversy will still occur. Subdivision (b). The treatment of authentication and  identification draws largely upon the experience embodied in the common  law and in statutes to furnish illustrative applications of the general  principle set forth in subdivision (a). The examples are not intended as  an exclusive enumeration of allowable methods but are meant to guide  and suggest, leaving room for growth and development in this area of the  law. The examples relate for the most part to documents,  with some attention given to voice communications and computer  print-outs. As Wigmore noted, no special rules have been developed for  authenticating chattels. Wigmore, Code of Evidence §2086 (3rd ed. 1942). It should be observed that compliance with  requirements of authentication or identification by no means assures  admission of an item into evidence, as other bars, hearsay for example,  may remain. Example (1). Example (1) contemplates a broad spectrum ranging  from testimony of a witness who was present at the signing of a document  to testimony establishing narcotics as taken from an accused and  accounting for custody through the period until trial, including  laboratory analysis. See California Evidence Code §1413, eyewitness to  signing. Example (2). Example (2) states conventional doctrine as to lay  identification of handwriting, which recognizes that a sufficient  familiarity with the handwriting of another person may be acquired by  seeing him write, by exchanging correspondence, or by other means, to  afford a basis for identifying it on subsequent occasions. McCormick  §189. See also California Evidence Code §1416. Testimony based upon  familiarity acquired for purposes of the litigation is reserved to the  expert under the example which follows. Example (3). The history of common law restrictions upon the  technique of proving or disproving the genuineness of a disputed  specimen of handwriting through comparison with a genuine specimen, by  either the testimony of expert witnesses or direct viewing by the triers  themselves, is detailed in 7 Wigmore §§1991–1994. In breaking away, the  English Common Law Procedure Act of 1854, 17 and 18 Viet., c. 125, §27,  cautiously allowed expert or trier to use exemplars “proved to the  satisfaction of the judge to be genuine” for purposes of comparison. The  language found its way into numerous statutes in this country, e.g.,  California Evidence Code §§1417, 1418. While explainable as a measure of  prudence in the process of breaking with precedent in the handwriting  situation, the reservation to the judge of the question of the  genuineness of exemplars and the imposition of an unusually high  standard of persuasion are at variance with the general treatment of  relevancy which depends upon fulfillment of a condition of fact. Rule  104(b). No similar attitude is found in other comparison situations,  e.g., ballistics comparison by jury, as in Evans v. Commonwealth, 230 Ky. 411, 19 S.W.2d 1091 (1929), or by experts, Annot. 26 A.L.R.2d 892, and no reason appears  for its continued existence in handwriting cases. Consequently Example  (3) sets no higher standard for handwriting specimens and treats all  comparison situations alike, to be governed by Rule 104(b). This  approach is consistent with 28 U.S.C. §1731:  “The admitted or proved handwriting of any person shall be admissible,  for purposes of comparison, to determine genuineness of other  handwriting attributed to such person.” Precedent supports the acceptance of visual  comparison as sufficiently satisfying preliminary authentication  requirements for admission in evidence. Brandon v. Collins, 267 F.2d 731 (2d Cir. 1959); Wausau Sulphate Fibre Co. v. Commissioner of Internal Revenue, 61 F.2d 879 (7th Cir. 1932); Desimone v. United States, 227 F.2d 864 (9th Cir. 1955). Example (4). The characteristics of the offered item itself,  considered in the light of circumstances, afford authentication  techniques in great variety. Thus a document or telephone conversation  may be shown to have emanated from a particular person by virtue of its  disclosing knowledge of facts known peculiarly to him; Globe Automatic Sprinkler Co. v. Braniff, 89 Okl. 105, 214 P. 127 (1923); California Evidence Code §1421; similarly, a letter may be  authenticated by content and circumstances indicating it was in reply to  a duly authenticated one. McCormick §192; California Evidence Code  §1420. Language patterns may indicate authenticity or its opposite. Magnuson v. State, 187 Wis. 122, 203 N.W. 749 (1925); Arens and Meadow, Psycholinguistics and the Confession Dilemma, 56 Colum.L.Rev. 19 (1956). Example (5). Since aural voice identification is not a subject  of expert testimony, the requisite familiarity may be acquired either  before or after the particular speaking which is the subject of the  identification, in this respect resembling visual identification of a  person rather than identification of handwriting. Cf. Example (2), supra, People v. Nichols, 378 Ill. 487, 38 N.E.2d 766 (1942); McGuire v. State, 200 Md. 601, 92 A.2d 582 (1952); State v. McGee, 336 Mo. 1082, 83 S.W.2d 98 (1935). Example (6). The cases are in agreement that a mere assertion  of his identity by a person talking on the telephone is not sufficient  evidence of the authenticity of the conversation and that additional  evidence of his identity is required. The additional evidence need not  fall in any set pattern. Thus the content of his statements or the reply  technique, under Example (4), supra, or voice identification under Example (5), may furnish  the necessary foundation. Outgoing calls made by the witness involve  additional factors bearing upon authenticity. The calling of a number  assigned by the telephone company reasonably supports the assumption  that the listing is correct and that the number is the one reached. If  the number is that of a place of business, the mass of authority allows  an ensuing conversation if it relates to business reasonably transacted  over the telephone, on the theory that the maintenance of the telephone  connection is an invitation to do business without further  identification. Matton v. Hoover Co., 350 Mo. 506, 166 S.W.2d 557 (1942); City of Pawhuska v. Crutchfield, 147 Okl. 4. 293 P. 1095 (1930); Zurich General Acc. & Liability Ins. Co. v. Baum, 159 Va. 404, 165 S.E. 518 (1932). Otherwise, some additional circumstance of identification of  the speaker is required. The authorities divide on the question whether  the self-identifying statement of the person answering suffices. Example  (6) answers in the affirmative on the assumption that usual conduct  respecting telephone calls furnish adequate assurances of regularity,  bearing in mind that the entire matter is open to exploration before the  trier of fact. In general, see McCormick §193; 7 Wigmore §2155; Annot.,  71 A.L.R. 5, 105 id. 326. Example (7). Public records are regularly authenticated by  proof of custody, without more. McCormick §191; 7 Wigmore §§2158, 2159.  The example extends the principle to include data stored in computers  and similar methods, of which increasing use in the public records area  may be expected. See California Evidence Code §§1532, 1600. Example (8). The familiar ancient document rule of the common  law is extended to include data stored electronically or by other  similar means. Since the importance of appearance diminishes in this  situation, the importance of custody or place where found increases  correspondingly. This expansion is necessary in view of the widespread  use of methods of storing data in forms other than conventional written  records. Any time period selected is bound to be arbitrary.  The common law period of 30 years is here reduced to 20 years, with some  shift of emphasis from the probable unavailability of witnesses to the  unlikeliness of a still viable fraud after the lapse of time. The  shorter period is specified in the English Evidence Act of 1938, 1 &  2 Geo. 6, c. 28, and in Oregon R.S. 1963, §41.360(34). See also the  numerous statutes prescribing periods of less than 30 years in the case  of recorded documents. 7 Wigmore §2143. The application of Example (8) is not subject to  any limitation to title documents or to any requirement that possession,  in the case of a title document, has been consistent with the document.  See McCormick §190. Example (9). Example (9) is designed for situations in which  the accuracy of a result is dependent upon a process or system which  produces it. X-rays afford a familiar instance. Among more recent  developments is the computer, as to which see Transport Indemnity Co. v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965); State v. Veres, 7 Ariz.App. 117, 436 P.2d 629 (1968); Merrick v. United States Rubber Co., 7 Ariz.App. 433, 440 P.2d 314 (1968); Freed, Computer Print-Outs as Evidence, 16 Am.Jur. Proof of  Facts 273; Symposium, Law and Computers in the Mid-Sixties, ALI-ABA  (1966); 37 Albany L.Rev. 61 (1967). Example (9) does not, of course,  foreclose taking judicial notice of the accuracy of the process or  system. Example (10). The example makes clear that methods of  authentication provided by Act of Congress and by the Rules of Civil and  Criminal Procedure or by Bankruptcy Rules are not intended to be  superseded. Illustrative are the provisions for authentication of  official records in Civil Procedure Rule 44 and Criminal Procedure Rule  27, for authentication of records of proceedings by court reporters in 28 U.S.C. §753(b) and Civil Procedure Rule 80(c), and for authentication of depositions in Civil Procedure Rule 30(f). Committee Notes on Rules—2011 Amendment The  language of Rule 901 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 412. Sex-Offense Cases: The Victim(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim’s sexual predisposition. (b) Exceptions. (1) Criminal Cases. The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant’s constitutional rights. (2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy. (c) Procedure to Determine Admissibility. (1) Motion. If a party intends to offer evidence under Rule 412(b), the party must: (A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered; (B) do so at least 14 days before trial unless the court, for good cause, sets a different time; (C) serve the motion on all parties; and (D) notify the victim or, when appropriate, the victim’s guardian or representative. (2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed. (d) Definition of “Victim.” In this rule, “victim” includes an alleged victim. Notes (Added Pub. L. 95–540, §2(a), Oct. 28, 1978, 92  Stat. 2046; amended Pub. L. 100–690, title VII, §7046(a), Nov. 18,  1988, 102 Stat. 4400; Apr. 29, 1994, eff. Dec. 1, 1994; Pub. L. 103–322,  title IV, §40141(b), Sept. 13, 1994, 108 Stat. 1919Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Rules—1994 Amendment Rule 412 has been revised to diminish some of the  confusion engendered by the original rule and to expand the protection  afforded alleged victims of sexual misconduct. Rule 412 applies to both  civil and criminal proceedings. The rule aims to safeguard the alleged  victim against the invasion of privacy, potential embarrassment and  sexual stereotyping that is associated with public disclosure of  intimate sexual details and the infusion of sexual innuendo into the  factfinding process. By affording victims protection in most instances,  the rule also encourages victims of sexual misconduct to institute and  to participate in legal proceedings against alleged offenders. Rule 412 seeks to achieve these objectives by  barring evidence relating to the alleged victim's sexual behavior or  alleged sexual predisposition, whether offered as substantive evidence  or for impeachment, except in designated circumstances in which the  probative value of the evidence significantly outweighs possible harm to  the victim. The revised rule applies in all cases involving  sexual misconduct without regard to whether the alleged victim or person  accused is a party to the litigation. Rule 412 extends to “pattern”  witnesses in both criminal and civil cases whose testimony about other  instances of sexual misconduct by the person accused is otherwise  admissible. When the case does not involve alleged sexual misconduct,  evidence relating to a third-party witness’ alleged sexual activities is  not within the ambit of Rule 412. The witness will, however, be  protected by other rules such as Rules 404 and 608, as well as Rule 403. The terminology “alleged victim” is used because  there will frequently be a factual dispute as to whether sexual  misconduct occurred. It does not connote any requirement that the  misconduct be alleged in the pleadings. Rule 412 does not, however,  apply unless the person against whom the evidence is offered can  reasonably be characterized as a “victim of alleged sexual misconduct.”  When this is not the case, as for instance in a defamation action  involving statements concerning sexual misconduct in which the evidence  is offered to show that the alleged defamatory statements were true or  did not damage the plaintiff's reputation, neither Rule 404 nor this  rule will operate to bar the evidence; Rule 401 and 403 will continue to  control. Rule 412 will, however, apply in a Title VII action in which  the plaintiff has alleged sexual harassment. The reference to a person “accused” is also used in  a non-technical sense. There is no requirement that there be a criminal  charge pending against the person or even that the misconduct would  constitute a criminal offense. Evidence offered to prove allegedly false  prior claims by the victim is not barred by Rule 412. However, this  evidence is subject to the requirements of Rule 404. Subdivision (a). As amended, Rule 412 bars evidence offered to  prove the victim's sexual behavior and alleged sexual predisposition.  Evidence, which might otherwise be admissible under Rules 402, 404(b),  405, 607, 608, 609, or some other evidence rule, must be excluded if  Rule 412 so requires. The word “other” is used to suggest some  flexibility in admitting evidence “intrinsic” to the alleged sexual  misconduct. Cf. Committee Note to 1991 amendment to Rule 404(b). Past sexual behavior connotes all activities that  involve actual physical conduct, i.e. sexual intercourse and sexual  contact, or that imply sexual intercourse or sexual contact. See, e.g., United States v. Galloway, 937 F.2d 542 (10th Cir. 1991), cert. denied, 113 S.Ct. 418 (1992) (use of contraceptives inadmissible since use implies sexual activity); United States v. One Feather, 702 F.2d 736 (8th Cir. 1983) (birth of an illegitimate child inadmissible); State v. Carmichael, 727 P.2d 918, 925 (Kan. 1986) (evidence of venereal disease inadmissible). In  addition, the word “behavior” should be construed to include activities  of the mind, such as fantasies or dreams. See 23 C. Wright & K. Graham, Jr., Federal Practice and Procedure, §5384 at p. 548 (1980) (“While  there may be some doubt under statutes that require ‘conduct,’ it would  seem that the language of Rule 412 is broad enough to encompass the  behavior of the mind.”). The rule has been amended to also exclude all other  evidence relating to an alleged victim of sexual misconduct that is  offered to prove a sexual predisposition. This amendment is designed to  exclude evidence that does not directly refer to sexual activities or  thoughts but that the proponent believes may have a sexual connotation  for the factfinder. Admission of such evidence would contravene Rule  412's objectives of shielding the alleged victim from potential  embarrassment and safeguarding the victim against stereotypical  thinking. Consequently, unless the (b)(2) exception is satisfied,  evidence such as that relating to the alleged victim's mode of dress,  speech, or life-style will not be admissible. The introductory phrase in subdivision (a) was  deleted because it lacked clarity and contained no explicit reference to  the other provisions of law that were intended to be overridden. The  conditional clause, “except as provided in subdivisions (b) and (c)” is  intended to make clear that evidence of the types described in  subdivision (a) is admissible only under the strictures of those  sections. The reason for extending the rule to all criminal  cases is obvious. The strong social policy of protecting a victim's  privacy and encouraging victims to come forward to report criminal acts  is not confined to cases that involve a charge of sexual assault. The  need to protect the victim is equally great when a defendant is charged  with kidnapping, and evidence is offered, either to prove motive or as  background, that the defendant sexually assaulted the victim. The reason for extending Rule 412 to civil cases is  equally obvious. The need to protect alleged victims against invasions  of privacy, potential embarrassment, and unwarranted sexual  stereotyping, and the wish to encourage victims to come forward when  they have been sexually molested do not disappear because the context  has shifted from a criminal prosecution to a claim for damages or  injunctive relief. There is a strong social policy in not only punishing  those who engage in sexual misconduct, but in also providing relief to  the victim. Thus, Rule 412 applies in any civil case in which a person  claims to be the victim of sexual misconduct, such as actions for sexual  battery or sexual harassment. Subdivision (b). Subdivision (b) spells out the specific  circumstances in which some evidence may be admissible that would  otherwise be barred by the general rule expressed in subdivision (a). As  amended, Rule 412 will be virtually unchanged in criminal cases, but  will provide protection to any person alleged to be a victim of sexual  misconduct regardless of the charge actually brought against an accused.  A new exception has been added for civil cases. In a criminal case, evidence may be admitted under  subdivision (b)(1) pursuant to three possible exceptions, provided the  evidence also satisfies other requirements for admissibility specified  in the Federal Rules of Evidence,  including Rule 403. Subdivisions (b)(1)(A) and (b)(1)(B) require proof  in the form of specific instances of sexual behavior in recognition of  the limited probative value and dubious reliability of evidence of  reputation or evidence in the form of an opinion. Under subdivision (b)(1)(A), evidence of specific  instances of sexual behavior with persons other than the person whose  sexual misconduct is alleged may be admissible if it is offered to prove  that another person was the source of semen, injury or other physical  evidence. Where the prosecution has directly or indirectly asserted that  the physical evidence originated with the accused, the defendant must  be afforded an opportunity to prove that another person was responsible. See United States v. Begay, 937 F.2d 515,  523 n. 10 (10th Cir. 1991). Evidence offered for the specific purpose  identified in this subdivision may still be excluded if it does not  satisfy Rules 401 or 403. See, e.g., United States v. Azure, 845 F.2d 1503,  1505–06 (8th Cir. 1988) (10 year old victim's injuries indicated recent  use of force; court excluded evidence of consensual sexual activities  with witness who testified at in camera hearing that he had never hurt  victim and failed to establish recent activities). Under the exception in subdivision (b)(1)(B),  evidence of specific instances of sexual behavior with respect to the  person whose sexual misconduct is alleged is admissible if offered to  prove consent, or offered by the prosecution. Admissible pursuant to  this exception might be evidence of prior instances of sexual activities  between the alleged victim and the accused, as well as statements in  which the alleged victim expressed an intent to engage in sexual  intercourse with the accused, or voiced sexual fantasies involving the  specific accused. In a prosection [sic] for child sexual abuse, for  example, evidence of uncharged sexual activity between the accused and  the alleged victim offered by the prosecution may be admissible pursuant  to Rule 404(b) to show a pattern of behavior. Evidence relating to the  victim's alleged sexual predisposition is not admissible pursuant to  this exception. Under subdivision (b)(1)(C), evidence of specific  instances of conduct may not be excluded if the result would be to deny a  criminal defendant the protections afforded by the Constitution. For  example, statements in which the victim has expressed an intent to have  sex with the first person encountered on a particular occasion might not  be excluded without violating the due process right of a rape defendant  seeking to prove consent. Recognition of this basic principle was  expressed in subdivision (b)(1) of the original rule. The United States  Supreme Court has recognized that in various circumstances a defendant  may have a right to introduce evidence otherwise precluded by an  evidence rule under the Confrontation Clause. See, e.g., Olden v. Kentucky, 488 U.S. 227 (1988) (defendant in rape cases had right to inquire into alleged victim's cohabitation with another man to show bias). Subdivision (b)(2) governs the admissibility of  otherwise proscribed evidence in civil cases. It employs a balancing  test rather than the specific exceptions stated in subdivision (b)(1) in  recognition of the difficulty of foreseeing future developments in the  law. Greater flexibility is needed to accommodate evolving causes of  action such as claims for sexual harassment. The balancing test requires the proponent of the  evidence, whether plaintiff or defendant, to convince the court that the  probative value of the proffered evidence “substantially outweighs the  danger of harm to any victim and of unfair prejudice of any party.” This  test for admitting evidence offered to prove sexual behavior or sexual  propensity in civil cases differs in three respects from the general  rule governing admissibility set forth in Rule 403. First, it reverses  the usual procedure spelled out in Rule 403 by shifting the burden to  the proponent to demonstrate admissibility rather than making the  opponent justify exclusion of the evidence. Second, the standard  expressed in subdivision (b)(2) is more stringent than in the original  rule; it raises the threshold for admission by requiring that the  probative value of the evidence substantially outweigh the specified dangers. Finally, the Rule  412 test puts “harm to the victim” on the scale in addition to  prejudice to the parties. Evidence of reputation may be received in a civil  case only if the alleged victim has put his or her reputation into  controversy. The victim may do so without making a specific allegation  in a pleading. Cf. Fed.R.Civ.P. 35 (a). Subdivision (c). Amended subdivision (c) is more concise and  understandable than the subdivision it replaces. The requirement of a  motion before trial is continued in the amended rule, as is the  provision that a late motion may be permitted for good cause shown. In  deciding whether to permit late filing, the court may take into account  the conditions previously included in the rule: namely whether the  evidence is newly discovered and could not have been obtained earlier  through the existence of due diligence, and whether the issue to which  such evidence relates has newly arisen in the case. The rule recognizes  that in some instances the circumstances that justify an application to  introduce evidence otherwise barred by Rule 412 will not become apparent  until trial. The amended rule provides that before admitting  evidence that falls within the prohibition of Rule 412(a), the court  must hold a hearing in camera at which the alleged victim and any party  must be afforded the right to be present and an opportunity to be heard.  All papers connected with the motion and any record of a hearing on the  motion must be kept and remain under seal during the course of trial  and appellate proceedings unless otherwise ordered. This is to assure  that the privacy of the alleged victim is preserved in all cases in  which the court rules that proffered evidence is not admissible, and in  which the hearing refers to matters that are not received, or are  received in another form. The procedures set forth in subdivision (c) do not  apply to discovery of a victim's past sexual conduct or predisposition  in civil cases, which will be continued to be governed by Fed.R.Civ.P. 26. In order not to undermine the rationale of Rule 412, however, courts should enter appropriate orders pursuant to Fed.R.Civ.P. 26 (c)  to protect the victim against unwarranted inquiries and to ensure  confidentiality. Courts should presumptively issue protective orders  barring discovery unless the party seeking discovery makes a showing  that the evidence sought to be discovered would be relevant under the  facts and theories of the particular case, and cannot be obtained except  through discovery. In an action for sexual harassment, for instance,  while some evidence of the alleged victim's sexual behavior and/or  predisposition in the workplace may perhaps be relevant, non-work place  conduct will usually be irrelevant. Cf. Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959,  962–63 (8th Cir. 1993) (posing for a nude magazine outside work hours  is irrelevant to issue of unwelcomeness of sexual advances at work).  Confidentiality orders should be presumptively granted as well. One substantive change made in subdivision (c) is  the elimination of the following sentence: “Notwithstanding subdivision  (b) of Rule 104, if the relevancy of the evidence which the accused  seeks to offer in the trial depends upon the fulfillment of a condition  of fact, the court, at the hearing in chambers or at a subsequent  hearing in chambers scheduled for such purpose, shall accept evidence on  the issue of whether such condition of fact is fulfilled and shall  determine such issue.” On its face, this language would appear to  authorize a trial judge to exclude evidence of past sexual conduct  between an alleged victim and an accused or a defendant in a civil case  based upon the judge's belief that such past acts did not occur. Such an  authorization raises questions of invasion of the right to a jury trial  under the Sixth and Seventh Amendments. See 1 S. Saltzburg & M. Martin, Federal Rules Of Evidence Manual, 396–97 (5th ed. 1990). The Advisory Committee concluded that the amended  rule provided adequate protection for all persons claiming to be the  victims of sexual misconduct, and that it was inadvisable to continue to  include a provision in the rule that has been confusing and that raises  substantial constitutional issues. [The Supreme Court withheld that portion of the  proposed amendment to Rule 412 transmitted to the Court by the Judicial  Conference of the United States which would apply that Rule to civil  cases. This Note was not revised to account for the Court's action,  because the Note is the commentary of the advisory committee. The  proposed amendment to Rule 412 was subsequently amended by section  40141(b) of Pub. L. 103–322. See below.] Congressional Modification of Proposed 1994 Amendment Section 40141(a) of Pub. L. 103–322 [set out as a  note under section 2074 of this title] provided that the amendment  proposed by the Supreme Court in its order of Apr. 29, 1994, affecting  Rule 412 of the Federal Rules of Evidence would take effect on Dec. 1, 1994, as otherwise provided by law, and as  amended by section 40141(b) of Pub. L. 103–322. See 1994 Amendment note  below. Committee Notes on Rules—2011 Amendment The  language of Rule 412 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. Amendment by Public Law 1994 —Pub. L. 103–322 amended rule generally. Prior to amendment,  rule contained provisions relating to the relevance and admissibility of  a victim's past sexual behavior in criminal sex offense cases under  chapter 109A of Title 18, Crimes and Criminal Procedure. 1988 —Pub. L. 100–690, §7046(a)(1), substituted “Sex Offense” for “Rape” in catchline. Subd. (a). Pub. L. 100–690, §7046(a)(2), (3),  substituted “an offense under chapter 109A of title 18, United States  Code” for “rape or of assault with intent to commit rate” and “such  offense” for “such rape or assault”. Subd. (b). Pub. L. 100–690, §7046(a)(2), (5),  substituted “an offense under chapter 109A of title 18, United States  Code” for “rape or of assault with intent to commit rape” in  introductory provisions and “such offense” for “rape or assault” in  subd. (b)(2)(B). Subds. (c)(1), (d). Pub. L. 100–690, §7046(a)(4),  substituted “an offense under chapter 109A of title 18, United States  Code” for “rape or assault with intent to commit rape”. Effective Date Section 3 of Pub. L. 95–540 provided that: “The  amendments made by this Act [enacting this rule] shall apply to trials  which begin more than thirty days after the date of the enactment of  this Act [Oct. 28, 1978].”


Rule 602. Need for Personal KnowledgeA witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules “* * * [T]he rule requiring that a  witness who testifies to a fact which can be perceived by the senses  must have had an opportunity to observe, and must have actually observed  the fact” is a “most pervasive manifestation” of the common law  insistence upon “the most reliable sources of information.” McCormick  §10, p. 19. These foundation requirements may, of course, be furnished  by the testimony of the witness himself; hence personal knowledge is not  an absolute but may consist of what the witness thinks he knows from  personal perception. 2 Wigmore §650. It will be observed that the rule  is in fact a specialized application of the provisions of Rule 104(b) on  conditional relevancy. This rule does not govern the situation of a  witness who testifies to a hearsay statement as such, if he has personal  knowledge of the making of the statement. Rules 801 and 805 would be  applicable. This rule would, however, prevent him from testifying to the  subject matter of the hearsay statement, as he has no personal  knowledge of it. The reference to Rule 703 is designed to avoid any  question of conflict between the present rule and the provisions of that  rule allowing an expert to express opinions based on facts of which he  does not have personal knowledge. Notes of Advisory Committee on Rules—1987 Amendment The amendments are technical. No substantive change is intended. Notes of Advisory Committee on Rules—1988 Amendment The amendment is technical. No substantive change is intended. Committee Notes on Rules—2011 Amendment The language of Rule 602 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 903. Subscribing WitnessA subscribing witness’s testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1945; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules The common law required that attesting witnesses be  produced or accounted for. Today the requirement has generally been  abolished except with respect to documents which must be attested to be  valid, e.g. wills in some states. McCormick §188. Uniform Rule 71;  California Evidence Code §1411; Kansas Code of Civil Procedure §60–468;  New Jersey Evidence Rule 71; New York CPLR Rule 4537. Committee Notes on Rules—2011 Amendment The  language of Rule 903 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 701. Opinion Testimony by Lay WitnessesIf a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. 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 The rule retains the traditional objective of putting the trier of fact in possession of an accurate reproduction of the event. Limitation (a) is the familiar requirement of first-hand knowledge or observation. Limitation (b) is phrased in terms of requiring  testimony to be helpful in resolving issues. Witnesses often find  difficulty in expressing themselves in language which is not that of an  opinion or conclusion. While the courts have made concessions in certain  recurring situations, necessity as a standard for permitting opinions  and conclusions has proved too elusive and too unadaptable to particular  situations for purposes of satisfactory judicial administration.  McCormick §11. Moreover, the practical impossibility of determinating by  rule what is a “fact,” demonstrated by a century of litigation of the  question of what is a fact for purposes of pleading under the Field  Code, extends into evidence also. 7 Wigmore §1919. The rule assumes that  the natural characteristics of the adversary system will generally lead  to an acceptable result, since the detailed account carries more  conviction than the broad assertion, and a lawyer can be expected to  display his witness to the best advantage. If he fails to do so,  cross-examination and argument will point up the weakness. See Ladd,  Expert Testimony, 5 Vand.L.Rev. 414, 415–417 (1952). If, despite these  considerations, attempts are made to introduce meaningless assertions  which amount to little more than choosing up sides, exclusion for lack  of helpfulness is called for by the rule. The language of the rule is substantially that of  Uniform. Rule 56(1). Similar provisions are California Evidence Code  §800; Kansas Code of Civil Procedure §60–456(a); New Jersey Evidence  Rule 56(1). Notes of Advisory Committee on Rules—1987 Amendment The amendments are technical. No substantive change is intended. Committee Notes on Rules—2000 Amendment Rule 701 has been amended to eliminate the risk  that the reliability requirements set forth in Rule 702 will be evaded  through the simple expedient of proffering an expert in lay witness  clothing. Under the amendment, a witness’ testimony must be scrutinized  under the rules regulating expert opinion to the extent that the witness  is providing testimony based on scientific, technical, or other  specialized knowledge within the scope of Rule 702. See generally Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190 (3d Cir. 1995). By channeling testimony that is actually expert  testimony to Rule 702, the amendment also ensures that a party will not  evade the expert witness disclosure requirements set forth in Fed.R.Civ.P. 26 and Fed.R.Crim.P. 16 by simply calling an expert witness in the guise of a layperson. See Joseph, Emerging Expert Issues Under the 1993 Disclosure Amendments to the Federal Rules of Civil Procedure ,  164 F.R.D. 97, 108 (1996) (noting that “there is no good reason to  allow what is essentially surprise expert testimony,” and that “the  Court should be vigilant to preclude manipulative conduct designed to  thwart the expert disclosure and discovery process”). See also United States v. Figueroa-Lopez, 125 F.3d 1241,  1246 (9th Cir. 1997) (law enforcement agents testifying that the  defendant's conduct was consistent with that of a drug trafficker could  not testify as lay witnesses; to permit such testimony under Rule 701  “subverts the requirements of Federal Rule of Criminal Procedure 16 (a)(1)(E)”). The amendment does not distinguish between expert and lay witnesses, but rather between expert and lay testimony. Certainly it is possible for the same witness to provide both lay and expert testimony in a single case. See, e.g., United States v. Figueroa-Lopez, 125 F.3d 1241,  1246 (9th Cir. 1997) (law enforcement agents could testify that the  defendant was acting suspiciously, without being qualified as experts;  however, the rules on experts were applicable where the agents testified  on the basis of extensive experience that the defendant was using code  words to refer to drug quantities and prices). The amendment makes clear  that any part of a witness’ testimony that is based upon scientific,  technical, or other specialized knowledge within the scope of Rule 702  is governed by the standards of Rule 702 and the corresponding  disclosure requirements of the Civil and Criminal Rules. The amendment is not intended to affect the  “prototypical example[s] of the type of evidence contemplated by the  adoption of Rule 701 relat[ing] to the appearance of persons or things,  identity, the manner of conduct, competency of a person, degrees of  light or darkness, sound, size, weight, distance, and an endless number  of items that cannot be described factually in words apart from  inferences.” Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190, 1196 (3d Cir. 1995). For example, most courts have permitted the owner  or officer of a business to testify to the value or projected profits of  the business, without the necessity of qualifying the witness as an  accountant, appraiser, or similar expert. See, e.g., Lightning Lube, Inc. v. Witco Corp. 4 F.3d 1153 (3d Cir. 1993) (no abuse of discretion in permitting the plaintiff's  owner to give lay opinion testimony as to damages, as it was based on  his knowledge and participation in the day-to-day affairs of the  business). Such opinion testimony is admitted not because of experience,  training or specialized knowledge within the realm of an expert, but  because of the particularized knowledge that the witness has by virtue  of his or her position in the business. The amendment does not purport  to change this analysis. Similarly, courts have permitted lay witnesses  to testify that a substance appeared to be a narcotic, so long as a  foundation of familiarity with the substance is established. See, e.g., United States v. Westbrook, 896 F.2d 330 (8th Cir. 1990) (two lay witnesses who were heavy amphetamine users  were properly permitted to testify that a substance was amphetamine; but  it was error to permit another witness to make such an identification  where she had no experience with amphetamines). Such testimony is not  based on specialized knowledge within the scope of Rule 702, but rather  is based upon a layperson's personal knowledge. If, however, that  witness were to describe how a narcotic was manufactured, or to describe  the intricate workings of a narcotic distribution network, then the  witness would have to qualify as an expert under Rule 702. United States v. Figueroa-Lopez, supra. The amendment incorporates the distinctions set forth in State v. Brown, 836 S.W.2d 530, 549 (1992), a case involving former Tennessee Rule of Evidence 701, a  rule that precluded lay witness testimony based on “special knowledge.”  In Brown, the court declared that the distinction between lay and  expert witness testimony is that lay testimony “results from a process  of reasoning familiar in everyday life,” while expert testimony “results  from a process of reasoning which can be mastered only by specialists  in the field.” The court in Brown noted that a lay witness with experience could testify  that a substance appeared to be blood, but that a witness would have to  qualify as an expert before he could testify that bruising around the  eyes is indicative of skull trauma. That is the kind of distinction made  by the amendment to this Rule. GAP Report—Proposed Amendment to Rule 701. The Committee made the following changes to the published draft of the proposed amendment to Evidence Rule 701: 1. The words “within the scope of Rule 702” were  added at the end of the proposed amendment, to emphasize that the Rule  does not require witnesses to qualify as experts unless their testimony  is of the type traditionally considered within the purview of Rule 702.  The Committee Note was amended to accord with this textual change. 2. The Committee Note was revised to provide  further examples of the kind of testimony that could and could not be  proffered under the limitation imposed by the proposed amendment. Committee Notes on Rules—2011 Amendment The language of Rule 701 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 610. Religious Beliefs or OpinionsEvidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility. 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 While the rule forecloses inquiry into the  religious beliefs or opinions of a witness for the purpose of showing  that his character for truthfulness is affected by their nature, an  inquiry for the purpose of showing interest or bias because of them is  not within the prohibition. Thus disclosure of affiliation with a church  which is a party to the litigation would be allowable under the rule.  Cf. Tucker v. Reil, 51 Ariz. 357, 77 P.2d 203 (1938). To the same effect, though less specifically worded, is California Evidence Code §789. See 3 Wigmore §936. 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 610 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 1001. Definitions That Apply to This ArticleIn this article: (a) A “writing” consists of letters, words, numbers, or their equivalent set down in any form. (b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner. (c) A “photograph” means a photographic image or its equivalent stored in any form. (d) An “original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout — or other output readable by sight — if it accurately reflects the information. An “original” of a photograph includes the negative or a print from it. (e) A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1945; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules In an earlier day, when discovery and other related  procedures were strictly limited, the misleading named “best evidence  rule” afforded substantial guarantees against inaccuracies and fraud by  its insistence upon production of original documents. The great  enlargement of the scope of discovery and related procedures in recent  times has measurably reduced the need for the rule. Nevertheless  important areas of usefulness persist: discovery of documents outside  the jurisdiction may require substantial outlay of time and money; the  unanticipated document may not practically be discoverable; criminal  cases have built-in limitations on discovery. Cleary and Strong, The  Best Evidence Rule: An Evaluation in Context, 51 Iowa L.Rev. 825 (1966). Paragraph (1). Traditionally the rule requiring the original  centered upon accumulations of data and expressions affecting legal  relations set forth in words and figures. This meant that the rule was  one essentially related to writings. Present day techniques have  expanded methods of storing data, yet the essential form which the  information ultimately assumes for usable purposes is words and figures.  Hence the considerations underlying the rule dictate its expansion to  include computers, photographic systems, and other modern developments. Paragraph (3). In most instances, what is an original will be  self-evident and further refinement will be unnecessary. However, in  some instances particularized definition is required. A carbon copy of a  contract executed in duplicate becomes an original, as does a sales  ticket carbon copy given to a customer. While strictly speaking the  original of a photograph might be thought to be only the negative,  practicality and common usage require that any print from the negative  be regarded as an original. Similarly, practicality and usage confer the  status of original upon any computer printout. Transport Indemnity Co. v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965). Paragraph (4). The definition describes “copies” produced by  methods possessing an accuracy which virtually eliminates the  possibility of error. Copies thus produced are given the status of  originals in large measure by Rule 1003, infra. Copies subsequently produced manually, whether  handwritten or typed, are not within the definition. It should be noted  that what is an original for some purposes may be a duplicate for  others. Thus a bank's microfilm record of checks cleared is the original  as a record. However, a print offered as a copy of a check whose  contents are in controversy is a duplicate. This result is substantially  consistent with 28 U.S.C. §1732(b). Compare 26 U.S.C. §7513(c),  giving full status as originals to photographic reproductions of tax  returns and other documents, made by authority of the Secretary of the  Treasury, and 44 U.S.C. §399(a), giving original status to photographic copies in the National Archives. Notes of Committee on the Judiciary, House Report No. 93–650 The Committee amended this Rule expressly to include “video tapes” in the definition of “photographs.” Committee Notes on Rules—2011 Amendment The  language of Rule 1001 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 413. Similar Crimes in Sexual-Assault Cases(a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant. (b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause. (c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule. (d) Definition of “Sexual Assault.” In this rule and Rule 415, “sexual assault” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving: (1) any conduct prohibited by 18 U.S.C. chapter 109A; (2) contact, without consent, between any part of the defendant’s body — or an object — and another person’s genitals or anus; (3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s body; (4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4). Notes (Added Pub. L. 103–322, title XXXII, §320935(a), Sept. 13, 1994, 108 Stat. 2135; Apr. 26, 2011, eff. Dec. 1, 2011.) Effective Date Section 320935(b)–(e) of Pub. L. 103–322, as  amended by Pub. L. 104–208, div. A, title I, §101(a), [title I, §120],  Sept. 30, 1996, 110 Stat. 3009, 3009–25, provided that: “(b) Implementation.—The amendments made by  subsection (a) [enacting this rule and rules 414 and 415 of these rules]  shall become effective pursuant to subsection (d). “(c) Recommendations by Judicial Conference.—Not  later than 150 days after the date of enactment of this Act [Sept. 13,  1994], the Judicial Conference of the United States shall transmit to  Congress a report containing recommendations for amending the Federal Rules of Evidence as they affect the admission of evidence of a defendant's prior sexual  assault or child molestation crimes in cases involving sexual assault  and child molestation. The Rules Enabling Act [ 28 U.S.C. 2072 ] shall not apply to the recommendations made by the Judicial Conference pursuant to this section. “(d) Congressional Action.— “(1) If the recommendations described in  subsection (c) are the same as the amendment made by subsection (a),  then the amendments made by subsection (a) shall become effective 30  days after the transmittal of the recommendations. “(2) If the recommendations described in  subsection (c) are different than the amendments made by subsection (a),  the amendments made by subsection (a) shall become effective 150 days  after the transmittal of the recommendations unless otherwise provided  by law. “(3) If the Judicial Conference fails to comply  with subsection (c), the amendments made by subsection (a) shall become  effective 150 days after the date the recommendations were due under  subsection (c) unless otherwise provided by law. “(e) Application.—The amendments made by subsection  (a) shall apply to proceedings commenced on or after the effective date  of such amendments [July 9, 1995], including all trials commenced on or  after the effective date of such amendments.” [The Judicial Conference transmitted to Congress on  Feb. 9, 1995, a report containing recommendations described in subsec.  (c) that were different than the amendments made by subsec. (a). The  amendments made by subsec. (a) became effective July 9, 1995.] Committee Notes on Rules—2011 Amendment The language of Rule 413 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 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other PurposesIf the court admits evidence that is  admissible against a party or for a purpose — but not against another  party or for another purpose — the court, on timely request, must  restrict the evidence to its proper scope and instruct the jury  accordingly. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1930; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules A  close relationship exists between this rule and Rule 403 which requires  exclusion when “probative value is substantially outweighed by the  danger of unfair prejudice, confusion of the issues, or misleading the  jury.” The present rule recognizes the practice of admitting evidence  for a limited purpose and instructing the jury accordingly. The  availability and effectiveness of this practice must be taken into  consideration in reaching a decision whether to exclude for unfair  prejudice under Rule 403. In Bruton v. United States, 389 U.S. 818, 88 S.Ct. 126, 19 L.Ed.2d 70 (1968), the Court ruled that a limiting  instruction did not effectively protect the accused against the  prejudicial effect of admitting in evidence the confession of a  codefendant which implicated him. The decision does not, however, bar  the use of limited admissibility with an instruction where the risk of  prejudice is less serious. Similar provisions  are found in Uniform Rule 6; California Evidence Code §355; Kansas Code  of Civil Procedure §60–406; New Jersey Evidence Rule 6. The wording of  the present rule differs, however, in repelling any implication that  limiting or curative instructions are sufficient in all situations. Notes of Committee on the Judiciary, House Report No. 93–650 Rule  106 as submitted by the Supreme Court (now Rule 105 in the bill) dealt  with the subject of evidence which is admissible as to one party or for  one purpose but is not admissible against another party or for another  purpose. The Committee adopted this Rule without change on the  understanding that it does not affect the authority of a court to order a  severance in a multi-defendant case. Committee Notes on Rules—2011 Amendment The  language of Rule 105 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 1103. TitleThese rules may be cited as the Federal Rules of Evidence. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1948; Apr. 26, 2011, eff. Dec. 1, 2011.) Short Title of 1978 Amendment Pub. L. 95–540, §1, Oct. 28, 1978, 92 Stat. 2046,  provided: “That this Act [enacting rule 412 of these rules and a  provision set out as a note under rule 412 of these rules] may be cited  as the ‘Privacy Protection for Rape Victims Act of 1978’.” Committee Notes on Rules—2011 Amendment The  language of Rule 1103 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 1005. Copies of Public Records to Prove ContentThe proponent may use a copy to prove the content of an official record — or of a document that was recorded or filed in a public office as authorized by law — if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content. 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 Public records call for somewhat different  treatment. Removing them from their usual place of keeping would be  attended by serious inconvenience to the public and to the custodian. As  a consequence judicial decisions and statutes commonly hold that no  explanation need be given for failure to produce the original of a  public record. McCormick §204; 4 Wigmore §§1215–1228. This blanket  dispensation from producing or accounting for the original would open  the door to the introduction of every kind of secondary evidence of  contents of public records were it not for the preference given  certified or compared copies. Recognition of degrees of secondary  evidence in this situation is an appropriate quid pro quo for not applying the requirement of producing the original. The provisions of 28 U.S.C. §1733(b) apply only to departments or agencies of the United States. The rule,  however, applies to public records generally and is comparable in scope  in this respect to Rule 44(a) of the Rules of Civil Procedure. Committee Notes on Rules—2011 Amendment The  language of Rule 1005 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 401. Test for Relevant EvidenceEvidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1931; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules Problems  of relevancy call for an answer to the question whether an item of  evidence, when tested by the processes of legal reasoning, possesses  sufficient probative value to justify receiving it in evidence. Thus,  assessment of the probative value of evidence that a person purchased a  revolver shortly prior to a fatal shooting with which he is charged is a  matter of analysis and reasoning. The variety  of relevancy problems is coextensive with the ingenuity of counsel in  using circumstantial evidence as a means of proof. An enormous number of  cases fall in no set pattern, and this rule is designed as a guide for  handling them. On the other hand, some situations recur with sufficient  frequency to create patterns susceptible of treatment by specific rules.  Rule 404 and those following it are of that variety; they also serve as  illustrations of the application of the present rule as limited by the  exclusionary principles of Rule 403. Passing  mention should be made of so-called “conditional” relevancy. Morgan,  Basic Problems of Evidence 45–46 (1962). In this situation, probative  value depends not only upon satisfying the basic requirement of  relevancy as described above but also upon the existence of some matter  of fact. For example, if evidence of a spoken statement is relied upon  to prove notice, probative value is lacking unless the person sought to  be charged heard the statement. The problem is one of fact, and the only  rules needed are for the purpose of determining the respective  functions of judge and jury. See Rules 104(b) and 901. The discussion  which follows in the present note is concerned with relevancy generally,  not with any particular problem of conditional relevancy. Relevancy  is not an inherent characteristic of any item of evidence but exists  only as a relation between an item of evidence and a matter properly  provable in the case. Does the item of evidence tend to prove the matter  sought to be proved? Whether the relationship exists depends upon  principles evolved by experience or science, applied logically to the  situation at hand. James, Relevancy, Probability and the Law, 29  Calif.L.Rev. 689, 696, n. 15 (1941), in Selected Writings on Evidence  and Trial 610, 615, n. 15 (Fryer ed. 1957). The rule summarizes this  relationship as a “tendency to make the existence” of the fact to be  proved “more probable or less probable.” Compare Uniform Rule 1(2) which  states the crux of relevancy as “a tendency in reason,” thus perhaps  emphasizing unduly the logical process and ignoring the need to draw  upon experience or science to validate the general principle upon which  relevancy in a particular situation depends. The  standard of probability under the rule is “more * * *  probable than it would be without the evidence.” Any more stringent  requirement is unworkable and unrealistic. As McCormick §152, p. 317,  says, “A brick is not a wall,” or, as Falknor, Extrinsic Policies  Affecting Admissibility, 10 Rutgers L.Rev. 574, 576 (1956), quotes  Professor McBaine, “* * * [I]t is not to be supposed that  every witness can make a home run.” Dealing with probability in the  language of the rule has the added virtue of avoiding confusion between  questions of admissibility and questions of the sufficiency of the  evidence. The rule uses the phrase “fact that  is of consequence to the determination of the action” to describe the  kind of fact to which proof may properly be directed. The language is  that of California Evidence Code §210; it has the advantage of avoiding  the loosely used and ambiguous word “material.” Tentative Recommendation  and a Study Relating to the Uniform Rules of Evidence (Art. I. General  Provisions), Cal. Law Revision Comm'n, Rep., Rec. & Studies, 10–11  (1964). The fact to be proved may be ultimate, intermediate, or  evidentiary; it matters not, so long as it is of consequence in the  determination of the action. Cf. Uniform Rule 1(2) which requires that  the evidence relate to a “material” fact. The  fact to which the evidence is directed need not be in dispute. While  situations will arise which call for the exclusion of evidence offered  to prove a point conceded by the opponent, the ruling should be made on  the basis of such considerations as waste of time and undue prejudice  (see Rule 403), rather than under any general requirement that evidence  is admissible only if directed to matters in dispute. Evidence which is  essentially background in nature can scarcely be said to involve  disputed matter, yet it is universally offered and admitted as an aid to  understanding. Charts, photographs, views of real estate, murder  weapons, and many other items of evidence fall in this category. A rule  limiting admissibility to evidence directed to a controversial point  would invite the exclusion of this helpful evidence, or at least the  raising of endless questions over its admission. Cf. California Evidence  Code §210, defining relevant evidence in terms of tendency to prove a  disputed fact. Committee Notes on Rules—2011 Amendment The  language of Rule 401 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.