Rule 501. Privilege in GeneralThe common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:  the United States Constitution; a federal statute; or rules prescribed by the Supreme Court.  But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1933; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Committee on the Judiciary, House Report No. 93–650 Article V as submitted to Congress contained  thirteen Rules. Nine of those Rules defined specific non-constitutional  privileges which the federal courts must recognize (i.e. required  reports, lawyer-client, psychotherapist-patient, husband-wife,  communications to clergymen, political vote, trade secrets, secrets of  state and other official information, and identity of informer). Another  Rule provided that only those privileges set forth in Article V or in  some other Act of Congress could be recognized by the federal courts.  The three remaining Rules addressed collateral problems as to waiver of  privilege by voluntary disclosure, privileged matter disclosed under  compulsion or without opportunity to claim privilege, comment upon or  inference from a claim of privilege, and jury instruction with regard  thereto. The Committee amended Article V to eliminate all of  the Court's specific Rules on privileges. Instead, the Committee,  through a single Rule, 501, left the law of privileges in its present  state and further provided that privileges shall continue to be  developed by the courts of the United States under a uniform standard  applicable both in civil and criminal cases. That standard, derived from  Rule 26 of the Federal Rules of Criminal Procedure, mandates the  application of the principles of the common law as interpreted by the  Courts of the United States in the light of reason and experience. The  words “person, government, State, or political subdivision thereof” were  added by the Committee to the lone term “witness” used in Rule 26 to  make clear that, as under present law, not only witnesses may have  privileges. The Committee also included in its amendment a proviso  modeled after Rule 302 and similar to language added by the Committee to  Rule 601 relating to the competency of witnesses. The proviso is  designed to require the application of State privilege law in civil  actions and proceedings governed by Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), a result in accord with current federal court decisions. See Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551,  555–556 n.2 (2nd Cir. 1967). The Committee deemed the proviso to be  necessary in the light of the Advisory Committee's view (see its note to  Court [proposed] Rule 501) that this result is not mandated under Erie. The rationale underlying the proviso is that  federal law should not supersede that of the States in substantive areas  such as privilege absent a compelling reason. The Committee believes  that in civil cases in the federal courts where an element of a claim or  defense is not grounded upon a federal question, there is no federal  interest strong enough to justify departure from State policy. In  addition, the Committee considered that the Court's proposed Article V  would have promoted forum shopping in some civil actions, depending upon  differences in the privilege law applied as among the State and federal  courts. The Committee's proviso, on the other hand, under which the  federal courts are bound to apply the State's privilege law in actions  founded upon a State-created right or defense removes the incentive to  “shop”. Notes of Committee on the Judiciary, Senate Report No. 93–1277 Article V as submitted to Congress contained 13  rules. Nine of those rules defined specific nonconstitutional privileges  which the Federal courts must recognize (i.e., required reports,  lawyer-client, psychotherapist-patient, husband-wife, communications to  clergymen, political vote, trade secrets, secrets of state and other  official information, and identity of informer). Many of these rules  contained controversial modifications or restrictions upon common law  privileges. As noted supra, the House amended article V to eliminate all  of the Court's specific rules on privileges. Through a single rule,  501, the House provided that privileges shall be governed by the  principles of the common law as interpreted by the courts of the United  States in the light of reason and experience (a standard derived from  rule 26 of the Federal Rules of Criminal Procedure) except in the case  of an element of a civil claim or defense as to which State law supplies  the rule of decision, in which event state privilege law was to govern. The committee agrees with the main thrust of the  House amendment: that a federally developed common law based on modern  reason and experience shall apply except where the State nature of the  issues renders deference to State privilege law the wiser course, as in  the usual diversity case. The committee understands that thrust of the  House amendment to require that State privilege law be applied in  “diversity” cases (actions on questions of State law between citizens of  different States arising under 28 U.S.C. §1332).  The language of the House amendment, however, goes beyond this in some  respects, and falls short of it in others: State privilege law applies  even in nondiversity. Federal question civil cases, where an issue  governed by State substantive law is the object of the evidence (such  issues do sometimes arise in such cases); and, in all instances where  State privilege law is to be applied, e.g., on proof of a State issue in  a diversity case, a close reading reveals that State privilege law is  not to be applied unless the matter to be proved is an element of that  state claim or defense, as distinguished from a step along the way in  the proof of it. The committee is concerned that the language used  in the House amendment could be difficult to apply. It provides that “in  civil actions * * * with respect to an element of a claim or  defense as to which State law supplies the rule of decision,” State law  on privilege applies. The question of what is an element of a claim or  defense is likely to engender considerable litigation. If the matter in  question constitutes an element of a claim, State law supplies the  privilege rule; whereas if it is a mere item of proof with respect to a  claim, then, even though State law might supply the rule of decision,  Federal law on the privilege would apply. Further, disputes will arise  as to how the rule should be applied in an antitrust action or in a tax  case where the Federal statute is silent as to a particular aspect of  the substantive law in question, but Federal cases had incorporated  State law by reference to State law. [For a discussion of reference to  State substantive law, see note on Federal Incorporation by Reference of  State Law, Hart & Wechsler, The Federal Courts and the Federal  System, pp. 491–494 (2d ed. 1973).] Is a claim (or defense) based on  such a reference a claim or defense as to which federal or State law  supplies the rule of decision? Another problem not entirely avoidable is the  complexity or difficulty the rule introduces into the trial of a Federal  case containing a combination of Federal and State claims and defenses,  e.g. an action involving Federal antitrust and State unfair competition  claims. Two different bodies of privilege law would need to be  consulted. It may even develop that the same witness-testimony might be  relevant on both counts and privileged as to one but not the other. [The  problems with the House formulation are discussed in Rothstein, The  Proposed Amendments to the Federal Rules of Evidence, 62 Georgetown University Law Journal 125 (1973) at notes 25, 26 and 70–74 and accompanying text.] The formulation adopted by the House is pregnant  with litigious mischief. The committee has, therefore, adopted what we  believe will be a clearer and more practical guideline for determining  when courts should respect State rules of privilege. Basically, it  provides that in criminal and Federal question civil cases, federally  evolved rules on privilege should apply since it is Federal policy which  is being enforced. [It is also intended that the Federal law of  privileges should be applied with respect to pendant State law claims  when they arise in a Federal question case.] Conversely, in diversity  cases where the litigation in question turns on a substantive question  of State law, and is brought in the Federal courts because the parties  reside in different States, the committee believes it is clear that  State rules of privilege should apply unless the proof is directed at a  claim or defense for which Federal law supplies the rule of decision (a  situation which would not commonly arise.) [While such a situation might  require use of two bodies of privilege law, federal and state, in the  same case, nevertheless the occasions on which this would be required  are considerably reduced as compared with the House version, and  confined to situations where the Federal and State interests are such as  to justify application of neither privilege law to the case as a whole.  If the rule proposed here results in two conflicting bodies of  privilege law applying to the same piece of evidence in the same case,  it is contemplated that the rule favoring reception of the evidence  should be applied. This policy is based on the present rule 43(a) of the Federal Rules of Civil Procedure which provides: In any case, the statute or rule which favors  the reception of the evidence governs and the evidence shall be  presented according to the most convenient method prescribed in any of  the statutes or rules to which reference is herein made.] It is intended  that the State rules of privilege should apply equally in original  diversity actions and diversity actions removed under 28 U.S.C. §1441(b). Two other comments on the privilege rule should be  made. The committee has received a considerable volume of correspondence  from psychiatric organizations and psychiatrists concerning the  deletion of rule 504 of the rule submitted by the Supreme Court. It  should be clearly understood that, in approving this general rule as to  privileges, the action of Congress should not be understood as  disapproving any recognition of a psychiatrist-patient, or husband-wife,  or any other of the enumerated privileges contained in the Supreme  Court rules. Rather, our action should be understood as reflecting the  view that the recognition of a privilege based on a confidential  relationship and other privileges should be determined on a case-by-case  basis. Further, we would understand that the prohibition  against spouses testifying against each other is considered a rule of  privilege and covered by this rule and not by rule 601 of the competency  of witnesses. Notes of Conference Committee, House Report No. 93–1597 Rule 501 deals with the privilege of a witness not  to testify. Both the House and Senate bills provide that federal  privilege law applies in criminal cases. In civil actions and  proceedings, the House bill provides that state privilege law applies  “to an element of a claim or defense as to which State law supplies the  rule of decision.” The Senate bill provides that “in civil actions and  proceedings arising under 28 U.S.C. §1332 or 28 U.S.C. §1335, or between citizens of different States and removed under 28 U.S.C. §1441(b) the privilege of a witness, person, government, State or political  subdivision thereof is determined in accordance with State law, unless  with respect to the particular claim or defense, Federal law supplies  the rule of decision.” The wording of the House and Senate bills differs  in the treatment of civil actions and proceedings. The rule in the House  bill applies to evidence that relates to “an element of a claim or  defense.” If an item of proof tends to support or defeat a claim or  defense, or an element of a claim or defense, and if state law supplies  the rule of decision for that claim or defense, then state privilege law  applies to that item of proof. Under the provision in the House bill, therefore,  state privilege law will usually apply in diversity cases. There may be  diversity cases, however, where a claim or defense is based upon federal  law. In such instances, Federal privilege law will apply to evidence  relevant to the federal claim or defense. See Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173 (1942). In nondiversity jurisdiction civil cases, federal  privilege law will generally apply. In those situations where a federal  court adopts or incorporates state law to fill interstices or gaps in  federal statutory phrases, the court generally will apply federal  privilege law. As Justice Jackson has said: A federal court sitting in a non-diversity case  such as this does not sit as a local tribunal. In some cases it may see  fit for special reasons to give the law of a particular state highly  persuasive or even controlling effect, but in the last analysis its  decision turns upon the law of the United States, not that of any state. D'Oench, Duhme & Co. v. Federal Deposit Insurance Corp., 315 U.S. 447, 471 (1942) (Jackson, J., concurring). When a federal court chooses to absorb state  law, it is applying the state law as a matter of federal common law.  Thus, state law does not supply the rule of decision (even though the  federal court may apply a rule derived from state decisions), and state  privilege law would not apply. See C. A. Wright, Federal Courts 251–252  (2d ed. 1970); Holmberg v. Armbrecht, 327 U.S. 392 (1946); DeSylva v. Ballentine, 351 U.S. 570, 581 (1956); 9 Wright & Miller, Federal Rules and Procedure §2408. In civil actions and proceedings, where the rule of  decision as to a claim or defense or as to an element of a claim or  defense is supplied by state law, the House provision requires that  state privilege law apply. The Conference adopts the House provision. Committee Notes on Rules—2011 Amendment The language of Rule 501 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 301. Presumptions in Civil Cases GenerallyIn a civil case, unless a federal statute or  these rules provide otherwise, the party against whom a presumption is  directed has the burden of producing evidence to rebut the  presumption. But this rule does not shift the burden of persuasion,  which remains on the party who had it originally. 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 This  rule governs presumptions generally. See Rule 302 for presumptions  controlled by state law and Rule 303 [deleted] for those against an  accused in a criminal case. Presumptions  governed by this rule are given the effect of placing upon the opposing  party the burden of establishing the nonexistence of the presumed fact,  once the party invoking the presumption establishes the basic facts  giving rise to it. The same considerations of fairness, policy, and  probability which dictate the allocation of the burden of the various  elements of a case as between the prima facie case of a plaintiff and  affirmative defenses also underlie the creation of presumptions. These  considerations are not satisfied by giving a lesser effect to  presumptions. Morgan and Maguire, Looking Backward and Forward at  Evidence, 50 Harv.L.Rev. 909, 913 (1937); Morgan, Instructing the Jury  upon Presumptions and Burdon of Proof, 47 Harv.L.Rev. 59, 82 1933);  Cleary, Presuming and Pleading: An Essay on Juristic Immaturity, 12  Stan.L.Rev. 5 (1959). The so-called “bursting  bubble” theory, under which a presumption vanishes upon the introduction  of evidence which would support a finding of the nonexistence of the  presumed fact, even though not believed, is rejected as according  presumptions too “slight and evanescent” an effect. Morgan and Maguire, supra, at p. 913. In the opinion of the Advisory Committee, no constitutional infirmity attends this view of presumptions. In Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78 (1910), the Court upheld a Mississippi statute  which provided that in actions against railroads proof of injury  inflicted by the running of trains should be prima facie evidence of  negligence by the railroad. The injury in the case had resulted from a  derailment. The opinion made the points (1) that the only effect of the  statute was to impose on the railroad the duty of producing some  evidence to the contrary, (2) that an inference may be supplied by law  if there is a rational connection between the fact proved and the fact  presumed, as long as the opposite party is not precluded from presenting  his evidence to the contrary, and (3) that considerations of public  policy arising from the character of the business justified the  application in question. Nineteen years later, in Western & Atlantic R. Co. v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884 (1929), the Court overturned a Georgia statute  making railroads liable for damages done by trains, unless the railroad  made it appear that reasonable care had been used, the presumption being  against the railroad. The declaration alleged the death of plaintiff's  husband from a grade crossing collision, due to specified acts of  negligence by defendant. The jury were instructed that proof of the  injury raised a presumption of negligence; the burden shifted to the  railroad to prove ordinary care; and unless it did so, they should find  for plaintiff. The instruction was held erroneous in an opinion stating  (1) that there was no rational connection between the mere fact of  collision and negligence on the part of anyone, and (2) that the statute  was different from that in Turnipseed in imposing a burden  upon the railroad. The reader is left in a state of some confusion. Is  the difference between a derailment and a grade crossing collision of no  significance? Would the Turnipseed presumption have been bad  if it had imposed a burden of persuasion on defendant, although that  would in nowise have impaired its “rational connection”? If Henderson forbids imposing a burden of persuasion on defendants, what happens to affirmative defenses? Two factors serve to explain Henderson.  The first was that it was common ground that negligence was  indispensable to liability. Plaintiff thought so, drafted her complaint  accordingly, and relied upon the presumption. But how in logic could the  same presumption establish her alternative grounds of negligence that  the engineer was so blind he could not see decedent's truck and that he  failed to stop after he saw it? Second, take away the basic assumption  of no liability without fault, as Turnipseed intimated might  be done (“considerations of public policy arising out of the character  of the business”), and the structure of the decision in Henderson fails. No question of logic would have arisen if the statute had simply  said: a prima facie case of liability is made by proof of injury by a  train; lack of negligence is an affirmative defense, to be pleaded and  proved as other affirmative defenses. The problem would be one of  economic due process only. While it seems likely that the Supreme Court  of 1929 would have voted that due process was denied, that result today  would be unlikely. See, for example, the shift in the direction of  absolute liability in the consumer cases. Prosser, The Assault upon the  Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960). Any  doubt as to the constitutional permissibility of a presumption imposing  a burden of persuasion of the non-existence of the presumed fact in  civil cases is laid at rest by Dick v. New York Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959). The Court unhesitatingly applied the  North Dakota rule that the presumption against suicide imposed on  defendant the burden of proving that the death of insured, under an  accidental death clause, was due to suicide. “Proof  of coverage and of death by gunshot wound shifts the burden to the  insurer to establish that the death of the insured was due to his  suicide.” 359 U.S. at 443, 79 S.Ct. at 925. “In  a case like this one, North Dakota presumes that death was accidental  and places on the insurer the burden of proving that death resulted from  suicide.” Id. at 446, 79 S.Ct. at 927. The rational connection requirement survives in criminal cases, Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), because the Court has been unwilling  to extend into that area the greater-includes-the-lesser theory of Ferry v. Ramsey, 277 U.S. 88, 48 S.Ct. 443, 72 L.Ed. 796 (1928). In that case the Court sustained a  Kansas statute under which bank directors were personally liable for  deposits made with their assent and with knowledge of insolvency, and  the fact of insolvency was prima facie evidence of assent and knowledge  of insolvency. Mr. Justice Holmes pointed out that the state legislature  could have made the directors personally liable to depositors in every  case. Since the statute imposed a less stringent liability, “the thing  to be considered is the result reached, not the possibly inartificial or  clumsy way of reaching it.” Id. at 94, 48 S.Ct. at 444. Mr.  Justice Sutherland dissented: though the state could have created an  absolute liability, it did not purport to do so; a rational connection  was necessary, but lacking, between the liability created and the prima  facie evidence of it; the result might be different if the basis of the  presumption were being open for business. The  Sutherland view has prevailed in criminal cases by virtue of the higher  standard of notice there required. The fiction that everyone is  presumed to know the law is applied to the substantive law of crimes as  an alternative to complete unenforceability. But the need does not  extend to criminal evidence and procedure, and the fiction does not  encompass them. “Rational connection” is not fictional or artificial,  and so it is reasonable to suppose that Gainey should have known that  his presence at the site of an illicit still could convict him of being  connected with (carrying on) the business, United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965), but not that Romano should have known  that his presence at a still could convict him of possessing it, United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965). In his dissent in Gainey, Mr. Justice Black put it more artistically: “It  might be argued, although the Court does not so argue or hold, that  Congress if it wished could make presence at a still a crime in itself,  and so Congress should be free to create crimes which are called  ‘possession’ and ‘carrying on an illegal distillery business’ but which  are defined in such a way that unexplained presence is sufficient and  indisputable evidence in all cases to support conviction for those  offenses. See Ferry v. Ramsey, 277 U.S. 88, 48 S.Ct. 443, 72 L.Ed. 796. Assuming for the sake of argument that  Congress could make unexplained presence a criminal act, and ignoring  also the refusal of this Court in other cases to uphold a statutory  presumption on such a theory, see Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772, there is no indication here that Congress  intended to adopt such a misleading method of draftsmanship, nor in my  judgement could the statutory provisions if so construed escape  condemnation for vagueness, under the principles applied in Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888, and many other cases.” 380 U.S. at 84, n. 12, 85 S.Ct. at 766. And the majority opinion in Romano agreed with him: “It  may be, of course, that Congress has the power to make presence at an  illegal still a punishable crime, but we find no clear indication that  it intended to so exercise this power. The crime remains possession, not  presence, and with all due deference to the judgement of Congress, the  former may not constitutionally be inferred from the latter.” 382 U.S.  at 144, 86 S.Ct. at 284. The rule does not  spell out the procedural aspects of its application. Questions as to  when the evidence warrants submission of a presumption and what  instructions are proper under varying states of fact are believed to  present no particular difficulties. Notes of Committee on the Judiciary, House Report No. 93–650 Rule  301 as submitted by the Supreme Court provided that in all cases a  presumption imposes on the party against whom it is directed the burden  of proving that the nonexistence of the presumed fact is more probable  than its existence. The Committee limited the scope of Rule 301 to  “civil actions and proceedings” to effectuate its decision not to deal  with the question of presumptions in criminal cases. (See note on  [proposed] Rule 303 in discussion of Rules deleted). With respect to the  weight to be given a presumption in a civil case, the Committee agreed  with the judgement implicit in the Court's version that the socalled  “bursting bubble” theory of presumptions, whereby a presumption vanished  upon the appearance of any contradicting evidence by the other party,  gives to presumptions too slight an effect. On the other hand, the  Committee believed that the Rule proposed by the Court, whereby a  presumption permanently alters the burden of persuasion, no matter how  much contradicting evidence is introduced—a view shared by only a few  courts—lends too great a force to presumptions. Accordingly, the  Committee amended the Rule to adopt an intermediate position under which  a presumption does not vanish upon the introduction of contradicting  evidence, and does not change the burden of persuasion; instead it is  merely deemed sufficient evidence of the fact presumed, to be considered  by the jury or other finder of fact. Notes of Committee on the Judiciary, Senate Report No. 93–1277 The rule governs presumptions in civil cases generally. Rule 302 provides for presumptions in cases controlled by State law. As  submitted by the Supreme Court, presumptions governed by this rule were  given the effect of placing upon the opposing party the burden of  establishing the non-existence of the presumed fact, once the party  invoking the presumption established the basic facts giving rise to it. Instead  of imposing a burden of persuasion on the party against whom the  presumption is directed, the House adopted a provision which shifted the  burden of going forward with the evidence. They further provided that  “even though met with contradicting evidence, a presumption is  sufficient evidence of the fact presumed, to be considered by the trier  of fact.” The effect of the amendment is that presumptions are to be  treated as evidence. The committee feels the  House amendment is ill-advised. As the joint committees (the Standing  Committee on Practice and Procedure of the Judicial Conference and the  Advisory Committee on the Rules of Evidence) stated: “Presumptions are  not evidence, but ways of dealing with evidence.” This treatment  requires juries to perform the task of considering “as evidence” facts  upon which they have no direct evidence and which may confuse them in  performance of their duties. California had a rule much like that  contained in the House amendment. It was sharply criticized by Justice  Traynor in Speck v. Sarver [ 20 Cal. 2d 585, 128 P. 2d 16, 21 (1942)] and was repealed after 93 troublesome years [Cal. Ev. Code 1965 §600]. Professor McCormick gives a concise and compelling critique of the presumption as evidence rule: * * * * * Another  solution, formerly more popular than now, is to instruct the jury that  the presumption is “evidence”, to be weighed and considered with the  testimony in the case. This avoids the danger that the jury may infer  that the presumption is conclusive, but it probably means little to the  jury, and certainly runs counter to accepted theories of the nature of  evidence. [McCormick, Evidence, 669 (1954); Id. 825 (2d ed. 1972)]. For  these reasons the committee has deleted that provision of the  House-passed rule that treats presumptions as evidence. The effect of  the rule as adopted by the committee is to make clear that while  evidence of facts giving rise to a presumption shifts the burden of  coming forward with evidence to rebut or meet the presumption, it does  not shift the burden of persuasion on the existence of the presumed  facts. The burden or persuasion remains on the party to whom it is  allocated under the rules governing the allocation in the first  instance. The court may instruct the jury that  they may infer the existence of the presumed fact from proof of the  basic facts giving rise to the presumption. However, it would be  inappropriate under this rule to instruct the jury that the inference  they are to draw is conclusive. Notes of Conference Committee, House Report No. 93–1597 The  House bill provides that a presumption in civil actions and proceedings  shifts to the party against whom it is directed the burden of going  forward with evidence to meet or rebut it. Even though evidence  contradicting the presumption is offered, a presumption is considered  sufficient evidence of the presumed fact to be considered by the jury.  The Senate amendment provides that a presumption shifts to the party  against whom it is directed the burden of going forward with evidence to  meet or rebut the presumption, but it does not shift to that party the  burden of persuasion on the existence of the presumed fact. Under  the Senate amendment, a presumption is sufficient to get a party past  an adverse party's motion to dismiss made at the end of his  case-in-chief. If the adverse party offers no evidence contradicting the  presumed fact, the court will instruct the jury that if it finds the  basic facts, it may presume the existence of the presumed fact. If the  adverse party does offer evidence contradicting the presumed fact, the  court cannot instruct the jury that it may presume the  existence of the presumed fact from proof of the basic facts. The court  may, however, instruct the jury that it may infer the existence of the  presumed fact from proof of the basic facts. The Conference adopts the Senate amendment. Committee Notes on Rules—2011 Amendment The  language of Rule 301 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 402. General Admissibility of Relevant EvidenceRelevant evidence is admissible unless any of the following provides otherwise:

the United States Constitution;
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.
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
The provisions that all relevant evidence is admissible, with certain exceptions, and that evidence which is not relevant is not admissible are “a presupposition involved in the very conception of a rational system of evidence.” Thayer, Preliminary Treatise on Evidence 264 (1898). They constitute the foundation upon which the structure of admission and exclusion rests. For similar provisions see California Evidence Code §§350, 351. Provisions that all relevant evidence is admissible are found in Uniform Rule 7(f); Kansas Code of Civil Procedure §60–407(f); and New Jersey Evidence Rule 7(f); but the exclusion of evidence which is not relevant is left to implication.
Not all relevant evidence is admissible. The exclusion of relevant evidence occurs in a variety of situations and may be called for by these rules, by the Rules of Civil and Criminal Procedure, by Bankruptcy Rules, by Act of Congress, or by constitutional considerations.
Succeeding rules in the present article, in response to the demands of particular policies, require the exclusion of evidence despite its relevancy. In addition, Article V recognizes a number of privileges; Article VI imposes limitations upon witnesses and the manner of dealing with them; Article VII specifies requirements with respect to opinions and expert testimony; Article VIII excludes hearsay not falling within an exception; Article IX spells out the handling of authentication and identification; and Article X restricts the manner of proving the contents of writings and recordings.
The Rules of Civil and Criminal Procedure in some instances require the exclusion of relevant evidence. For example, Rules 30(b) and 32(a)(3) of the Rules of Civil Procedure, by imposing requirements of notice and unavailability of the deponent, place limits on the use of relevant depositions. Similarly, Rule 15 of the Rules of Criminal Procedure restricts the use of depositions in criminal cases, even though relevant. And the effective enforcement of the command, originally statutory and now found in Rule 5(a) of the Rules of Criminal Procedure, that an arrested person be taken without unnecessary delay before a commissioner of other similar officer is held to require the exclusion of statements elicited during detention in violation thereof. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); 18 U.S.C. §3501(c).
While congressional enactments in the field of evidence have generally tended to expand admissibility beyond the scope of the common law rules, in some particular situations they have restricted the admissibility of relevant evidence. Most of this legislation has consisted of the formulation of a privilege or of a prohibition against disclosure. 8 U.S.C. §1202(f), records of refusal of visas or permits to enter United States confidential, subject to discretion of Secretary of State to make available to court upon certification of need; 10 U.S.C. §3693, replacement certificate of honorable discharge from Army not admissible in evidence; 10 U.S.C. §8693, same as to Air Force; 11 U.S.C. §25(a) (10), testimony given by bankrupt on his examination not admissible in criminal proceedings against him, except that given in hearing upon objection to discharge; 11 U.S.C. §205(a), railroad reorganization petition, if dismissed, not admissible in evidence; 11 U.S.C. §403(a), list of creditors filed with municipal composition plan not an admission; 13 U.S.C. §9(a), census information confidential, retained copies of reports privileged; 47 U.S.C. §605, interception and divulgence of wire or radio communications prohibited unless authorized by sender. These statutory provisions would remain undisturbed by the rules.
The rule recognizes but makes no attempt to spell out the constitutional considerations which impose basic limitations upon the admissibility of relevant evidence. Examples are evidence obtained by unlawful search and seizure, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); incriminating statement elicited from an accused in violation of right to counsel, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
Notes of Committee on the Judiciary, House Report No. 93–650
Rule 402 as submitted to the Congress contained the phrase “or by other rules adopted by the Supreme Court”. To accommodate the view that the Congress should not appear to acquiesce in the Court's judgment that it has authority under the existing Rules Enabling Acts to promulgate Rules of Evidence, the Committee amended the above phrase to read “or by other rules prescribed by the Supreme Court pursuant to statutory authority” in this and other Rules where the reference appears.
Committee Notes on Rules—2011 Amendment
The language of Rule 402 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 407. Subsequent Remedial MeasuresWhen measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

negligence;
culpable conduct;
a defect in a product or its design; or
a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.
Notes
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1932; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 26, 2011, eff. Dec. 1, 2011.)
Notes of Advisory Committee on Proposed Rules
The rule incorporates conventional doctrine which excludes evidence of subsequent remedial measures as proof of an admission of fault. The rule rests on two grounds. (1) The conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence. Or, as Baron Bramwell put it, the rule rejects the notion that “because the world gets wiser as it gets older, therefore it was foolish before.” Hart v. Lancashire & Yorkshire Ry. Co., 21 L.T.R. N.S. 261, 263 (1869). Under a liberal theory of relevancy this ground alone would not support exclusion as the inference is still a possible one. (2) The other, and more impressive, ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety. The courts have applied this principle to exclude evidence of subsequent repairs, installation of safety devices, changes in company rules, and discharge of employees, and the language of the present rules is broad enough to encompass all of them. See Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L.Rev. 574, 590 (1956).
The second sentence of the rule directs attention to the limitations of the rule. Exclusion is called for only when the evidence of subsequent remedial measures is offered as proof of negligence or culpable conduct. In effect it rejects the suggested inference that fault is admitted. Other purposes are, however, allowable, including ownership or control, existence of duty, and feasibility of precautionary measures, if controverted, and impeachment. 2 Wigmore §283; Annot., 64 A.L.R.2d 1296. Two recent federal cases are illustrative. Boeing Airplane Co. v. Brown, 291 F.2d 310 (9th Cir. 1961), an action against an airplane manufacturer for using an allegedly defectively designed alternator shaft which caused a plane crash, upheld the admission of evidence of subsequent design modification for the purpose of showing that design changes and safeguards were feasible. And Powers v. J. B. Michael & Co., 329 F.2d 674 (6th Cir. 1964), an action against a road contractor for negligent failure to put out warning signs, sustained the admission of evidence that defendant subsequently put out signs to show that the portion of the road in question was under defendant's control. The requirement that the other purpose be controverted calls for automatic exclusion unless a genuine issue be present and allows the opposing party to lay the groundwork for exclusion by making an admission. Otherwise the factors of undue prejudice, confusion of issues, misleading the jury, and waste of time remain for consideration under Rule 403.
For comparable rules, see Uniform Rule 51; California Evidence Code §1151; Kansas Code of Civil Procedure §60–451; New Jersey Evidence Rule 51.
Notes of Advisory Committee on Rules—1997 Amendment
The amendment to Rule 407 makes two changes in the rule. First, the words “an injury or harm allegedly caused by” were added to clarify that the rule applies only to changes made after the occurrence that produced the damages giving rise to the action. Evidence of measures taken by the defendant prior to the “event” causing “injury or harm” do not fall within the exclusionary scope of Rule 407 even if they occurred after the manufacture or design of the product. See Chase v. General Motors Corp., 856 F.2d 17, 21–22 (4th Cir. 1988).
Second, Rule 407 has been amended to provide that evidence of subsequent remedial measures may not be used to prove “a defect in a product or its design, or that a warning or instruction should have accompanied a product.” This amendment adopts the view of a majority of the circuits that have interpreted Rule 407 to apply to products liability actions. See Raymond v. Raymond Corp., 938 F.2d 1518, 1522 (1st Cir. 1991); In re Joint Eastern District and Southern District Asbestos Litigation v. Armstrong World Industries, Inc., 995 F.2d 343 (2d Cir. 1993); Cann v. Ford Motor Co., 658 F.2d 54, 60 (2d Cir. 1981), cert. denied, 456 U.S. 960 (1982); Kelly v. Crown Equipment Co., 970 F.2d 1273, 1275 (3d Cir. 1992); Werner v. Upjohn, Inc., 628 F.2d 848 (4th Cir. 1980), cert. denied, 449 U.S. 1080 (1981); Grenada Steel Industries, Inc. v. Alabama Oxygen Co., Inc., 695 F.2d 883 (5th Cir. 1983); Bauman v. Volkswagenwerk Aktiengesellschaft, 621 F.2d 230, 232 (6th Cir. 1980); Flaminio v. Honda Motor Company, Ltd., 733 F.2d 463, 469 (7th Cir. 1984); Gauthier v. AMF, Inc., 788 F.2d 634, 636–37 (9th Cir. 1986).
Although this amendment adopts a uniform federal rule, it should be noted that evidence of subsequent remedial measures may be admissible pursuant to the second sentence of Rule 407. Evidence of subsequent measures that is not barred by Rule 407 may still be subject to exclusion on Rule 403 grounds when the dangers of prejudice or confusion substantially outweigh the probative value of the evidence.
GAP Report on Rule 407. The words “injury or harm” were substituted for the word “event” in line 3. The stylization changes in the second sentence of the rule were eliminated. The words “causing ‘injury or harm’ ” were added to the Committee Note.
Committee Notes on Rules—2011 Amendment
The language of Rule 407 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
Rule 407 previously provided that evidence was not excluded if offered for a purpose not explicitly prohibited by the Rule. To improve the language of the Rule, it now provides that the court may admit evidence if offered for a permissible purpose. There is no intent to change the process for admitting evidence covered by the Rule. It remains the case that if offered for an impermissible purpose, it must be excluded, and if offered for a purpose not barred by the Rule, its admissibility remains governed by the general principles of Rules 402, 403, 801, etc.


Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation(a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414. (b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses’ statements or a summary of the expected testimony. The party 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. Notes (Added Pub. L. 103–322, title XXXII, §320935(a), Sept. 13, 1994, 108 Stat. 2137; Apr. 26, 2011, eff. Dec. 1, 2011.) Effective Date Rule effective July 9, 1995, see section 320935(b)–(e) of Pub. L. 103–322, set out as a note under rule 413 of these rules. Committee Notes on Rules—2011 Amendment The language of Rule 415 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 1008. Functions of the Court and JuryOrdinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines — in accordance with Rule 104(b) — any issue about whether: (a) an asserted writing, recording, or photograph ever existed; (b) another one produced at the trial or hearing is the original; or (c) other evidence of content accurately reflects the content. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1947; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules Most preliminary questions of fact in connection  with applying the rule preferring the original as evidence of contents  are for the judge, under the general principles announced in Rule 104, supra. Thus, the question whether the loss of the originals has  been established, or of the fulfillment of other conditions specified  in Rule 1004, supra, is for the judge. However, questions may arise which go  beyond the mere administration of the rule preferring the original and  into the merits of the controversy. For example, plaintiff offers  secondary evidence of the contents of an alleged contract, after first  introducing evidence of loss of the original, and defendant counters  with evidence that no such contract was ever executed. If the judge  decides that the contract was never executed and excludes the secondary  evidence, the case is at an end without ever going to the jury on a  central issue. Levin, Authentication and Content of Writings, 10 Rutgers  L.Rev. 632, 644 (1956). The latter portion of the instant rule is  designed to insure treatment of these situations as raising jury  questions. The decision is not one for uncontrolled discretion of the  jury but is subject to the control exercised generally by the judge over  jury determinations. See Rule 104(b), supra. For similar provisions, see Uniform Rule 70(2); Kansas Code of Civil Procedure §60–467(b); New Jersey Evidence Rule 70(2), (3). Committee Notes on Rules—2011 Amendment The  language of Rule 1008 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 404. Character Evidence; Other Crimes, Wrongs, or Acts(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:
(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.
Notes
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1932; Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 26, 2011, eff. Dec. 1, 2011.)
Notes of Advisory Committee on Proposed Rules
Subdivision (a). This subdivision deals with the basic question whether character evidence should be admitted. Once the admissibility of character evidence in some form is established under this rule, reference must then be made to Rule 405, which follows, in order to determine the appropriate method of proof. If the character is that of a witness, see Rules 608 and 610 for methods of proof.
Character questions arise in two fundamentally different ways. (1) Character may itself be an element of a crime, claim, or defense. A situation of this kind is commonly referred to as “character in issue.” Illustrations are: the chastity of the victim under a statute specifying her chastity as an element of the crime of seduction, or the competency of the driver in an action for negligently entrusting a motor vehicle to an incompetent driver. No problem of the general relevancy of character evidence is involved, and the present rule therefore has no provision on the subject. The only question relates to allowable methods of proof, as to which see Rule 405, immediately following. (2) Character evidence is susceptible of being used for the purpose of suggesting an inference that the person acted on the occasion in question consistently with his character. This use of character is often described as “circumstantial.” Illustrations are: evidence of a violent disposition to prove that the person was the aggressor in an affray, or evidence of honesty in disproof of a charge of theft. This circumstantial use of character evidence raises questions of relevancy as well as questions of allowable methods of proof.
In most jurisdictions today, the circumstantial use of character is rejected but with important exceptions: (1) an accused may introduce pertinent evidence of good character (often misleadingly described as “putting his character in issue”), in which event the prosecution may rebut with evidence of bad character; (2) an accused may introduce pertinent evidence of the character of the victim, as in support of a claim of self-defense to a charge of homicide or consent in a case of rape, and the prosecution may introduce similar evidence in rebuttal of the character evidence, or, in a homicide case, to rebut a claim that deceased was the first aggressor, however proved; and (3) the character of a witness may be gone into as bearing on his credibility. McCormick §§155–161. This pattern is incorporated in the rule. While its basis lies more in history and experience than in logic as underlying justification can fairly be found in terms of the relative presence and absence of prejudice in the various situations. Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutger, L.Rev. 574, 584 (1956); McCormick §157. In any event, the criminal rule is so deeply imbedded in our jurisprudence as to assume almost constitutional proportions and to override doubts of the basic relevancy of the evidence.
The limitation to pertinent traits of character, rather than character generally, in paragraphs (1) and (2) is in accordance with the prevailing view. McCormick §158, p. 334. A similar provision in Rule 608, to which reference is made in paragraph (3), limits character evidence respecting witnesses to the trait of truthfulness or untruthfulness.
The argument is made that circumstantial use of character ought to be allowed in civil cases to the same extent as in criminal cases, i.e. evidence of good (nonprejudicial) character would be admissible in the first instance, subject to rebuttal by evidence of bad character. Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L.Rev. 574, 581–583 (1956); Tentative Recommendation and a Study Relating to the Uniform Rules of Evidence (Art. VI. Extrinsic Policies Affecting Admissibility), Cal. Law Revision Comm'n, Rep., Rec. & Studies, 657–658 (1964). Uniform Rule 47 goes farther, in that it assumes that character evidence in general satisfies the conditions of relevancy, except as provided in Uniform Rule 48. The difficulty with expanding the use of character evidence in civil cases is set forth by the California Law Revision Commission in its ultimate rejection of Uniform Rule 47, Id., 615:
“Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened.”
Much of the force of the position of those favoring greater use of character evidence in civil cases is dissipated by their support of Uniform Rule 48 which excludes the evidence in negligence cases, where it could be expected to achieve its maximum usefulness. Moreover, expanding concepts of “character,” which seem of necessity to extend into such areas as psychiatric evaluation and psychological testing, coupled with expanded admissibility, would open up such vistas of mental examinations as caused the Court concern in Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). It is believed that those espousing change have not met the burden of persuasion.
Subdivision (b) deals with a specialized but important application of the general rule excluding circumstantial use of character evidence. Consistently with that rule, evidence of other crimes, wrongs, or acts is not admissible to prove character as a basis for suggesting the inference that conduct on a particular occasion was in conformity with it. However, the evidence may be offered for another purpose, such as proof of motive, opportunity, and so on, which does not fall within the prohibition. In this situation the rule does not require that the evidence be excluded. No mechanical solution is offered. The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403. Slough and Knightly, Other Vices, Other Crimes, 41 Iowa L.Rev. 325 (1956).
Notes of Committee on the Judiciary, House Report No. 93–650
The second sentence of Rule 404(b) as submitted to the Congress began with the words “This subdivision does not exclude the evidence when offered”. The Committee amended this language to read “It may, however, be admissible”, the words used in the 1971 Advisory Committee draft, on the ground that this formulation properly placed greater emphasis on admissibility than did the final Court version.
Notes of Committee on the Judiciary, Senate Report No. 93–1277
This rule provides that evidence of other crimes, wrongs, or acts is not admissible to prove character but may be admissible for other specified purposes such as proof of motive.
Although your committee sees no necessity in amending the rule itself, it anticipates that the use of the discretionary word “may” with respect to the admissibility of evidence of crimes, wrongs, or acts is not intended to confer any arbitrary discretion on the trial judge. Rather, it is anticipated that with respect to permissible uses for such evidence, the trial judge may exclude it only on the basis of those considerations set forth in Rule 403, i.e. prejudice, confusion or waste of time.
Notes of Advisory Committee on Rules—1987 Amendment
The amendments are technical. No substantive change is intended.
Notes of Advisory Committee on Rules—1991 Amendment
Rule 404(b) has emerged as one of the most cited Rules in the Rules of Evidence. And in many criminal cases evidence of an accused's extrinsic acts is viewed as an important asset in the prosecution's case against an accused. Although there are a few reported decisions on use of such evidence by the defense, see, e.g., United States v. McClure, 546 F.2nd 670 (5th Cir. 1990) (acts of informant offered in entrapment defense), the overwhelming number of cases involve introduction of that evidence by the prosecution.
The amendment to Rule 404(b) adds a pretrial notice requirement in criminal cases and is intended to reduce surprise and promote early resolution on the issue of admissibility. The notice requirement thus places Rule 404(b) in the mainstream with notice and disclosure provisions in other rules of evidence. See, e.g., Rule 412 (written motion of intent to offer evidence under rule), Rule 609 (written notice of intent to offer conviction older than 10 years), Rule 803(24) and 804(b)(5) (notice of intent to use residual hearsay exceptions).
The Rule expects that counsel for both the defense and the prosecution will submit the necessary request and information in a reasonable and timely fashion. Other than requiring pretrial notice, no specific time limits are stated in recognition that what constitutes a reasonable request or disclosure will depend largely on the circumstances of each case. Compare Fla. Stat. Ann §90.404 (2)(b) (notice must be given at least 10 days before trial) with Tex.R.Evid. 404(b) (no time limit).
Likewise, no specific form of notice is required. The Committee considered and rejected a requirement that the notice satisfy the particularity requirements normally required of language used in a charging instrument. Cf. Fla. Stat. Ann §90.404 (2)(b) (written disclosure must describe uncharged misconduct with particularity required of an indictment or information). Instead, the Committee opted for a generalized notice provision which requires the prosecution to apprise the defense of the general nature of the evidence of extrinsic acts. The Committee does not intend that the amendment will supercede other rules of admissibility or disclosure, such as the Jencks Act, 18 U.S.C. §3500, et seq. nor require the prosecution to disclose directly or indirectly the names and addresses of its witnesses, something it is currently not required to do under Federal Rule of Criminal Procedure 16.
The amendment requires the prosecution to provide notice, regardless of how it intends to use the extrinsic act evidence at trial, i.e., during its case-in-chief, for impeachment, or for possible rebuttal. The court in its discretion may, under the facts, decide that the particular request or notice was not reasonable, either because of the lack of timeliness or completeness. Because the notice requirement serves as condition precedent to admissibility of 404(b) evidence, the offered evidence is inadmissible if the court decides that the notice requirement has not been met.
Nothing in the amendment precludes the court from requiring the government to provide it with an opportunity to rule in limine on 404(b) evidence before it is offered or even mentioned during trial. When ruling in limine, the court may require the government to disclose to it the specifics of such evidence which the court must consider in determining admissibility.
The amendment does not extend to evidence of acts which are “intrinsic” to the charged offense, see United States v. Williams, 900 F.2d 823 (5th Cir. 1990) (noting distinction between 404(b) evidence and intrinsic offense evidence). Nor is the amendment intended to redefine what evidence would otherwise be admissible under Rule 404(b). Finally, the Committee does not intend through the amendment to affect the role of the court and the jury in considering such evidence. See United States v. Huddleston, 485 U.S. 681, 108 S.Ct 1496 (1988).
Committee Notes on Rules—2000 Amendment
Rule 404(a)(1) has been amended to provide that when the accused attacks the character of an alleged victim under subdivision (a)(2) of this Rule, the door is opened to an attack on the same character trait of the accused. Current law does not allow the government to introduce negative character evidence as to the accused unless the accused introduces evidence of good character. See, e.g., United States v. Fountain, 768 F.2d 790 (7th Cir. 1985) (when the accused offers proof of self-defense, this permits proof of the alleged victim's character trait for peacefulness, but it does not permit proof of the accused's character trait for violence).
The amendment makes clear that the accused cannot attack the alleged victim's character and yet remain shielded from the disclosure of equally relevant evidence concerning the same character trait of the accused. For example, in a murder case with a claim of self-defense, the accused, to bolster this defense, might offer evidence of the alleged victim's violent disposition. If the government has evidence that the accused has a violent character, but is not allowed to offer this evidence as part of its rebuttal, the jury has only part of the information it needs for an informed assessment of the probabilities as to who was the initial aggressor. This may be the case even if evidence of the accused's prior violent acts is admitted under Rule 404(b), because such evidence can be admitted only for limited purposes and not to show action in conformity with the accused's character on a specific occasion. Thus, the amendment is designed to permit a more balanced presentation of character evidence when an accused chooses to attack the character of the alleged victim.
The amendment does not affect the admissibility of evidence of specific acts of uncharged misconduct offered for a purpose other than proving character under Rule 404(b). Nor does it affect the standards for proof of character by evidence of other sexual behavior or sexual offenses under Rules 412–415. By its placement in Rule 404(a)(1), the amendment covers only proof of character by way of reputation or opinion.
The amendment does not permit proof of the accused's character if the accused merely uses character evidence for a purpose other than to prove the alleged victim's propensity to act in a certain way. See United States v. Burks, 470 F.2d 432, 434–5 (D.C.Cir. 1972) (evidence of the alleged victim's violent character, when known by the accused, was admissible “on the issue of whether or not the defendant reasonably feared he was in danger of imminent great bodily harm”). Finally, the amendment does not permit proof of the accused's character when the accused attacks the alleged victim's character as a witness under Rule 608 or 609.
The term “alleged” is inserted before each reference to “victim” in the Rule, in order to provide consistency with Evidence Rule 412.
GAP Report—Proposed Amendment to Rule 404(a). The Committee made the following changes to the published draft of the proposed amendment to Evidence Rule 404(a):
1. The term “a pertinent trait of character” was changed to “the same trait of character,” in order to limit the scope of the government's rebuttal. The Committee Note was revised to accord with this change in the text.
2. The word “alleged” was added before each reference in the Rule to a “victim” in order to provide consistency with Evidence Rule 412. The Committee Note was amended to accord with this change in the text.
3. The Committee Note was amended to clarify that rebuttal is not permitted under this Rule if the accused proffers evidence of the alleged victim's character for a purpose other than to prove the alleged victim's propensity to act in a certain manner.
Committee Notes on Rules—2006 Amendment
The Rule has been amended to clarify that in a civil case evidence of a person's character is never admissible to prove that the person acted in conformity with the character trait. The amendment resolves the dispute in the case law over whether the exceptions in subdivisions (a)(1) and (2) permit the circumstantial use of character evidence in civil cases. Compare Carson v. Polley, 689 F.2d 562, 576 (5th Cir. 1982) (“when a central issue in a case is close to one of a criminal nature, the exceptions to the Rule 404(a) ban on character evidence may be invoked”), with SEC v. Towers Financial Corp., 966 F.Supp. 203 (S.D.N.Y. 1997) (relying on the terms “accused” and “prosecution” in Rule 404(a) to conclude that the exceptions in subdivisions (a)(1) and (2) are inapplicable in civil cases). The amendment is consistent with the original intent of the Rule, which was to prohibit the circumstantial use of character evidence in civil cases, even where closely related to criminal charges. See Ginter v. Northwestern Mut. Life Ins. Co., 576 F.Supp. 627, 629–30 (D. Ky.1984) (“It seems beyond peradventure of doubt that the drafters of F.R.Evi. 404(a) explicitly intended that all character evidence, except where ‘character is at issue’ was to be excluded” in civil cases).
The circumstantial use of character evidence is generally discouraged because it carries serious risks of prejudice, confusion and delay. See Michelson v. United States, 335 U.S. 469, 476 (1948) (“The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.”). In criminal cases, the so-called “mercy rule” permits a criminal defendant to introduce evidence of pertinent character traits of the defendant and the victim. But that is because the accused, whose liberty is at stake, may need “a counterweight against the strong investigative and prosecutorial resources of the government.” C. Mueller & L. Kirkpatrick, Evidence: Practice Under the Rules, pp. 264–5 (2d ed. 1999). See also Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U.Pa.L.Rev. 845, 855 (1982) (the rule prohibiting circumstantial use of character evidence “was relaxed to allow the criminal defendant with so much at stake and so little available in the way of conventional proof to have special dispensation to tell the factfinder just what sort of person he really is”). Those concerns do not apply to parties in civil cases.
The amendment also clarifies that evidence otherwise admissible under Rule 404(a)(2) may nonetheless be excluded in a criminal case involving sexual misconduct. In such a case, the admissibility of evidence of the victim's sexual behavior and predisposition is governed by the more stringent provisions of Rule 412.
Nothing in the amendment is intended to affect the scope of Rule 404(b). While Rule 404(b) refers to the “accused,” the “prosecution,” and a “criminal case,” it does so only in the context of a notice requirement. The admissibility standards of Rule 404(b) remain fully applicable to both civil and criminal cases.
Changes Made After Publication and Comments. No changes were made to the text of the proposed amendment as released for public comment. A paragraph was added to the Committee Note to state that the amendment does not affect the use of Rule 404(b) in civil cases.
Committee Notes on Rules—2011 Amendment
The language of Rule 404 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
Committee Notes on Rules—2020 Amendment
Rule 404(b) has been amended principally to impose additional notice requirements on the prosecution in a criminal case. In addition, clarifications have been made to the text and headings.
The notice provision has been changed in a number of respects:

The prosecution must not only identify the evidence that it intends to offer pursuant to the rule but also articulate a non-propensity purpose for which the evidence is offered and the basis for concluding that the evidence is relevant in light of this purpose. The earlier requirement that the prosecution provide notice of only the “general nature” of the evidence was understood by some courts to permit the government to satisfy the notice obligation without describing the specific act that the evidence would tend to prove, and without explaining the relevance of the evidence for a non-propensity purpose. This amendment makes clear what notice is required.

The pretrial notice must be in writing—which requirement is satisfied by notice in electronic form. See Rule 101(b)(6). Requiring the notice to be in writing provides certainty and reduces arguments about whether notice was actually provided.

Notice must be provided before trial in such time as to allow the defendant a fair opportunity to meet the evidence, unless the court excuses that requirement upon a showing of good cause. See Rules 609(b), 807, and 902(11). Advance notice of Rule 404(b) evidence is important so that the parties and the court have adequate opportunity to assess the evidence, the purpose for which it is offered, and whether the requirements of Rule 403 have been satisfied—even in cases in which a final determination as to the admissibility of the evidence must await trial. When notice is provided during trial after a finding of good cause, the court may need to consider protective measures to assure that the opponent is not prejudiced. See, e.g., United States v. Lopez-Gutierrez, 83 F.3d 1235 (10th Cir. 1996) (notice given at trial due to good cause; the trial court properly made the witness available to the defendant before the bad act evidence was introduced); United States v. Perez-Tosta, 36 F.3d 1552 (11th Cir. 1994) (defendant was granted five days to prepare after notice was given, upon good cause, just before voir dire).

The good cause exception applies not only to the timing of the notice as a whole but also to the timing of the obligations to articulate a non-propensity purpose and the reasoning supporting that purpose. A good cause exception for the timing of the articulation requirements is necessary because in some cases an additional permissible purpose for the evidence may not become clear until just before, or even during, trial.

Finally, the amendment eliminates the requirement that the defendant must make a request before notice is provided. That requirement is not found in any other notice provision in the Federal Rules of Evidence. It has resulted mostly in boilerplate demands on the one hand, and a trap for the unwary on the other. Moreover, many local rules require the government to provide notice of Rule 404(b) material without regard to whether it has been requested. And in many cases, notice is provided when the government moves in limine for an advance ruling on the admissibility of Rule 404(b) evidence. The request requirement has thus outlived any usefulness it may once have had.

As to the textual clarifications, the word “other” is restored to the location it held before restyling in 2011, to confirm that Rule 404(b) applies to crimes, wrongs, and acts “other” than those at issue in the case; and the headings are changed accordingly. No substantive change is intended.


Rule 103. Rulings on Evidence(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only  if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or (2) if  the ruling excludes evidence, a party informs the court of its  substance by an offer of proof, unless the substance was apparent from  the context. (b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at  trial — a party need not renew an objection or offer of proof to  preserve a claim of error for appeal. (c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the  evidence, the objection made, and the ruling. The court may direct that  an offer of proof be made in question-and-answer form. (d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so  that inadmissible evidence is not suggested to the jury by any means. (e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1930; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules Subdivision (a) states the law as generally accepted today. Rulings on evidence cannot  be assigned as error unless (1) a substantial right is affected, and (2)  the nature of the error was called to the attention of the judge, so as  to alert him to the proper course of action and enable opposing counsel  to take proper corrective measures. The objection and the offer of  proof are the techniques for accomplishing these objectives. For similar  provisions see Uniform Rules 4 and 5; California Evidence Code §§353  and 354; Kansas Code of Civil Procedure §§60–404 and 60–405. The rule  does not purport to change the law with respect to harmless error. See 28 U.S.C. §2111,  F.R.Civ.P. 61, F.R.Crim.P. 52, and decisions construing them. The  status of constitutional error as harmless or not is treated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), reh. denied id. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241. Subdivision (b). The first sentence is the third sentence of Rule 43(c) of the Federal Rules of Civil Procedure virtually verbatim. Its purpose is to reproduce for an appellate court,  insofar as possible, a true reflection of what occurred in the trial  court. The second sentence is in part derived from the final sentence of  Rule 43(c). It is designed to resolve doubts as to what testimony the  witness would have in fact given, and, in nonjury cases, to provide the  appellate court with material for a possible final disposition of the  case in the event of reversal of a ruling which excluded evidence. See 5  Moore's Federal Practice §43.11 (2d ed. 1968). Application is made  discretionary in view of the practical impossibility of formulating a  satisfactory rule in mandatory terms. Subdivision (c).  This subdivision proceeds on the supposition that a ruling which  excludes evidence in a jury case is likely to be a pointless procedure  if the excluded evidence nevertheless comes to the attention of the  jury. Bruton v. United States, 389 U.S. 818, 88 S.Ct. 126, L.Ed.2d 70 (1968). Rule 43(c) of the Federal Rules of Civil Procedure provides: “The court may require the offer to be made out of the hearing of the jury.” In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962), left some doubt whether questions on  which an offer is based must first be asked in the presence of the jury.  The subdivision answers in the negative. The judge can foreclose a  particular line of testimony and counsel can protect his record without a  series of questions before the jury, designed at best to waste time and  at worst “to waft into the jury box” the very matter sought to be  excluded. Subdivision (d). This  wording of the plain error principle is from Rule 52(b) of the Federal  Rules of Criminal Procedure. While judicial unwillingness to be  constructed by mechanical breakdowns of the adversary system has been  more pronounced in criminal cases, there is no scarcity of decisions to  the same effect in civil cases. In general, see Campbell, Extent to  Which Courts of Review Will Consider Questions Not Properly Raised and  Preserved, 7 Wis.L.Rev. 91, 160 (1932); Vestal, Sua Sponte Consideration  in Appellate Review, 27 Fordham L.Rev. 477 (1958–59); 64 Harv.L.Rev.  652 (1951). In the nature of things the application of the plain error  rule will be more likely with respect to the admission of evidence than  to exclusion, since failure to comply with normal requirements of offers  of proof is likely to produce a record which simply does not disclose  the error. Committee Notes on Rules—2000 Amendment The amendment applies to all rulings on evidence whether they occur at or before trial, including so-called “ in limine ” rulings. One of the most difficult questions arising from in limine and other evidentiary rulings is whether a losing party must renew an  objection or offer of proof when the evidence is or would be offered at  trial, in order to preserve a claim of error on appeal. Courts have  taken differing approaches to this question. Some courts have held that a  renewal at the time the evidence is to be offered at trial is always  required. See, e.g., Collins v. Wayne Corp., 621 F.2d 777 (5th Cir. 1980). Some courts have taken a more flexible approach,  holding that renewal is not required if the issue decided is one that  (1) was fairly presented to the trial court for an initial ruling, (2)  may be decided as a final matter before the evidence is actually  offered, and (3) was ruled on definitively by the trial judge. See, e.g., Rosenfeld v. Basquiat, 78 F.3d 84 (2d Cir. 1996) (admissibility of former testimony under the Dead Man's  Statute; renewal not required). Other courts have distinguished between  objections to evidence, which must be renewed when evidence is offered,  and offers of proof, which need not be renewed after a definitive  determination is made that the evidence is inadmissible. See, e.g., Fusco v. General Motors Corp., 11 F.3d 259 (1st Cir. 1993). Another court, aware of this Committee's proposed amendment, has adopted its approach. Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999) (en banc). Differing views on this question create  uncertainty for litigants and unnecessary work for the appellate courts. The  amendment provides that a claim of error with respect to a definitive  ruling is preserved for review when the party has otherwise satisfied  the objection or offer of proof requirements of Rule 103(a). When the  ruling is definitive, a renewed objection or offer of proof at the time  the evidence is to be offered is more a formalism than a necessity. See Fed.R.Civ.P. 46 (formal exceptions unnecessary); Fed.R.Cr.P.51 (same); United States v. Mejia-Alarcon, 995 F.2d 982,  986 (10th Cir. 1993) (“Requiring a party to review an objection when  the district court has issued a definitive ruling on a matter that can  be fairly decided before trial would be in the nature of a formal  exception and therefore unnecessary.”). On the other hand, when the  trial court appears to have reserved its ruling or to have indicated  that the ruling is provisional, it makes sense to require the party to  bring the issue to the court's attention subsequently. See, e.g., United States v. Vest, 116 F.3d 1179, 1188 (7th Cir. 1997) (where the trial court ruled in limine that testimony from defense witnesses could not be admitted, but  allowed the defendant to seek leave at trial to call the witnesses  should their testimony turn out to be relevant, the defendant's failure  to seek such leave at trial meant that it was “too late to reopen the  issue now on appeal”); United States v. Valenti, 60 F.3d 941 (2d Cir. 1995) (failure to proffer evidence at trial waives any claim  of error where the trial judge had stated that he would reserve judgment  on the in limine motion until he had heard the trial evidence). The amendment imposes the obligation on counsel to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point. See, e.g., Walden v. Georgia-Pacific Corp., 126 F.3d 506,  520 (3d Cir. 1997) (although “the district court told plaintiffs’  counsel not to reargue every ruling, it did not countermand its clear  opening statement that all of its rulings were tentative, and counsel  never requested clarification, as he might have done.”). Even  where the court's ruling is definitive, nothing in the amendment  prohibits the court from revisiting its decision when the evidence is to  be offered. If the court changes its initial ruling, or if the opposing  party violates the terms of the initial ruling, objection must be made  when the evidence is offered to preserve the claim of error for appeal.  The error, if any, in such a situation occurs only when the evidence is  offered and admitted. United States Aviation Underwriters, Inc. v. Olympia Wings, Inc., 896 F.2d 949, 956 (5th Cir. 1990) (“objection is required to preserve error when an opponent, or the court itself, violates a motion in limine that was granted”); United States v. Roenigk, 810 F.2d 809 (8th Cir. 1987) (claim of error was not preserved where the defendant  failed to object at trial to secure the benefit of a favorable advance  ruling). A definitive advance ruling is  reviewed in light of the facts and circumstances before the trial court  at the time of the ruling. If the relevant facts and circumstances  change materially after the advance ruling has been made, those facts  and circumstances cannot be relied upon on appeal unless they have been  brought to the attention of the trial court by way of a renewed, and  timely, objection, offer of proof, or motion to strike. See Old Chief v. United States, 519 U.S. 172, 182,  n.6 (1997) (“It is important that a reviewing court evaluate the trial  court's decision from its perspective when it had to rule and not  indulge in review by hindsight.”). Similarly, if the court decides in an  advance ruling that proffered evidence is admissible subject to the  eventual introduction by the proponent of a foundation for the evidence,  and that foundation is never provided, the opponent cannot claim error  based on the failure to establish the foundation unless the opponent  calls that failure to the court's attention by a timely motion to strike  or other suitable motion. See Huddleston v. United States, 485 U.S. 681, 690, n.7 (1988) (“It is, of course, not the responsibility of the judge sua sponte to ensure that the foundation evidence is offered; the objector must  move to strike the evidence if at the close of the trial the offeror has  failed to satisfy the condition.”). Nothing in the amendment is intended to affect the provisions of Fed.R.Civ.P. 72 (a) or 28 U.S.C. §636(b)(1) pertaining to nondispositive pretrial rulings by magistrate judges in  proceedings that are not before a magistrate judge by consent of the  parties. Fed.R.Civ.P. 72 (a)  provides that a party who fails to file a written objection to a  magistrate judge's nondispositive order within ten days of receiving a  copy “may not thereafter assign as error a defect” in the order. 28 U.S.C. §636(b)(1) provides that any party “may serve and file written objections to such  proposed findings and recommendations as provided by rules of court”  within ten days of receiving a copy of the order. Several courts have  held that a party must comply with this statutory provision in order to  preserve a claim of error. See, e.g., Wells v. Shriners Hospital, 109 F.3d 198,  200 (4th Cir. 1997) (“[i]n this circuit, as in others, a party ‘may’  file objections within ten days or he may not, as he chooses, but he  ‘shall’ do so if he wishes further consideration.”). When Fed.R.Civ.P. 72 (a) or 28 U.S.C. §636(b)(1) is operative, its requirement must be satisfied in order for a party to  preserve a claim of error on appeal, even where Evidence Rule 103(a)  would not require a subsequent objection or offer of proof. Nothing in the amendment is intended to affect the rule set forth in Luce v. United States, 469 U.S. 38 (1984),  and its progeny. The amendment provides that an objection or offer of  proof need not be renewed to preserve a claim of error with respect to a  definitive pretrial ruling. Luce answers affirmatively a  separate question: whether a criminal defendant must testify at trial in  order to preserve a claim of error predicated upon a trial court's  decision to admit the defendant's prior convictions for impeachment. The Luce principle has been extended by many lower courts to other situations. See United States v. DiMatteo, 759 F.2d 831 (11th Cir. 1985) (applying Luce where the defendant's witness would be impeached with evidence offered under Rule 608). See also United States v. Goldman, 41 F.3d 785, 788 (1st Cir. 1994) (“Although Luce involved impeachment by conviction under Rule 609, the reasons given by  the Supreme Court for requiring the defendant to testify apply with  full force to the kind of Rule 403 and 404 objections that are advanced  by Goldman in this case.”); Palmieri v. DeFaria, 88 F.3d 136 (2d Cir. 1996) (where the plaintiff decided to take an adverse judgment  rather than challenge an advance ruling by putting on evidence at  trial, the in limine ruling would not be reviewed on appeal); United States v. Ortiz, 857 F.2d 900 (2d Cir. 1988) (where uncharged misconduct is ruled admissible if the  defendant pursues a certain defense, the defendant must actually pursue  that defense at trial in order to preserve a claim of error on appeal); United States v. Bond, 87 F.3d 695 (5th Cir. 1996) (where the trial court rules in limine that the defendant would waive his fifth amendment privilege were he to  testify, the defendant must take the stand and testify in order to  challenge that ruling on appeal). The  amendment does not purport to answer whether a party who objects to  evidence that the court finds admissible in a definitive ruling, and who  then offers the evidence to “remove the sting” of its anticipated  prejudicial effect, thereby waives the right to appeal the trial court's  ruling. See, e.g., United States v. Fisher, 106 F.3d 622 (5th Cir. 1997) (where the trial judge ruled in limine that the government could use a prior conviction to impeach the  defendant if he testified, the defendant did not waive his right to  appeal by introducing the conviction on direct examination); Judd v. Rodman, 105 F.3d 1339 (11th Cir. 1997) (an objection made in limine is sufficient to preserve a claim of error when the movant, as a matter  of trial strategy, presents the objectionable evidence herself on  direct examination to minimize its prejudicial effect); Gill v. Thomas, 83 F.3d 537,  540 (1st Cir. 1996) (“by offering the misdemeanor evidence himself,  Gill waived his opportunity to object and thus did not preserve the  issue for appeal”); United States v. Williams, 939 F.2d 721 (9th Cir. 1991) (objection to impeachment evidence was waived where the defendant was impeached on direct examination). GAP Report—Proposed Amendment to Rule 103(a). The Committee made the following changes to the published draft of the proposed amendment to Evidence Rule 103(a): 1.  A minor stylistic change was made in the text, in accordance with the  suggestion of the Style Subcommittee of the Standing Committee on Rules  of Practice and Procedure. 2. The second  sentence of the amended portion of the published draft was deleted, and  the Committee Note was amended to reflect the fact that nothing in the  amendment is intended to affect the rule of Luce v. United States. 3. The Committee Note was updated to include cases decided after the proposed amendment was issued for public comment. 4.  The Committee Note was amended to include a reference to a Civil Rule  and a statute requiring objections to certain Magistrate Judge rulings  to be made to the District Court. 5. The  Committee Note was revised to clarify that an advance ruling does not  encompass subsequent developments at trial that might be the subject of  an appeal. Committee Notes on Rules—2011 Amendment The  language of Rule 103 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 101. Scope; Definitions(a) Scope. These  rules apply to proceedings in United States courts. The specific courts  and proceedings to which the rules apply, along with exceptions, are  set out in Rule 1101. (b) Definitions. In these rules: (1) “civil case” means a civil action or proceeding; (2) “criminal case” includes a criminal proceeding; (3) “public office” includes a public agency; (4) “record” includes a memorandum, report, or data compilation; (5) a “rule prescribed by the Supreme Court” means a rule adopted by the Supreme Court under statutory authority; and (6) a reference to any kind of written material or any other medium includes electronically stored information. Notes (Pub.  L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1929; Mar. 2, 1987, eff. Oct. 1,  1987; Apr. 25, 1988, eff. Nov. 1, 1988; Apr. 22, 1993, eff. Dec. 1,  1993; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules Rule  1101 specifies in detail the courts, proceedings, questions, and stages  of proceedings to which the rules apply in whole or in part. Notes of Advisory Committee on Rules—1987 Amendment United States bankruptcy judges are added to conform this rule with Rule 1101(b) and Bankruptcy Rule 9017. Notes of Advisory Committee on Rules—1988 Amendment The amendment is technical. No substantive change is intended. Notes of Advisory Committee on Rules—1993 Amendment This revision is made to conform the rule to changes made by the Judicial Improvements Act of 1990. Committee Notes on Rules—2000 Amendment The  language of Rule 101 has been amended, and definitions have been added,  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 Style Project The  Evidence Rules are the fourth set of national procedural rules to be  restyled. The restyled Rules of Appellate Procedure took effect in  1998. The restyled Rules of Criminal Procedure took effect in 2002. The  restyled Rules of Civil Procedure took effect in 2007. The restyled  Rules of Evidence apply the same general drafting guidelines and  principles used in restyling the Appellate, Criminal, and Civil Rules. 1.  General Guidelines Guidance in drafting, usage, and style was provided by Bryan Garner, Guidelines for Drafting and Editing Court Rules,  Administrative Office of the United States Courts (1969) and Bryan Garner, A Dictionary of Modern Legal Usage  (2d ed. 1995). See also  Joseph Kimble, Guiding Principles for  Restyling the Civil Rules,  in Preliminary Draft of Proposed Style Revision of the Federal Rules of Civil Procedure,  at page x (Feb. 2005) (available at http://www.uscourts.gov/rules/Prelim_draft_proposed_pt1.pdf); Joseph Kimble, Lessons in Drafting from the New Federal Rules of Civil Procedure , 12 Scribes J. Legal Writing __ (2008-2009). 2. Formatting Changes Many  of the changes in the restyled Evidence Rules result from using format  to achieve clearer presentations. The rules are broken down into  constituent parts, using progressively indented subparagraphs with  headings and substituting vertical for horizontal lists. “Hanging  indents” are used throughout. These formatting changes make the  structure of the rules graphic and make the restyled rules easier to  read and understand even when the words are not changed. Rules 103,  404(b), 606(b), and 612 illustrate the benefits of formatting changes.  3. Changes to Reduce Inconsistent, Ambiguous, Redundant, Repetitive, or Archaic Words The  restyled rules reduce the use of inconsistent terms that say the same  thing in different ways. Because different words are presumed to have  different meanings, such inconsistencies can result in confusion. The  restyled rules reduce inconsistencies by using the same words to express  the same meaning. For example, consistent expression is achieved by  not switching between “accused” and “defendant” or between “party  opponent” and “opposing party” or between the various formulations of  civil and criminal action/case/proceeding. The  restyled rules minimize the use of inherently ambiguous words. For  example, the word “shall” can mean “must,” “may,” or something else,  depending on context. The potential for confusion is exacerbated by the  fact the word “shall” is no longer generally used in spoken or clearly  written English. The restyled rules replace “shall” with “must,” “may,”  or “should,” depending on which one the context and established  interpretation make correct in each rule. The  restyled rules minimize the use of redundant “intensifiers.” These are  expressions that attempt to add emphasis, but instead state the obvious  and create negative implications for other rules. The absence of  intensifiers in the restyled rules does not change their substantive  meaning. See, e.g.,  Rule 104(c) (omitting “in all cases”); Rule  602 (omitting “but need not”); Rule 611(b) (omitting “in the exercise of  discretion”). The restyled rules also remove words and concepts that are outdated or redundant.  4. Rule Numbers The  restyled rules keep the same numbers to minimize the effect on  research. Subdivisions have been rearranged within some rules to  achieve greater clarity and simplicity.  5. No Substantive Change The  Committee made special efforts to reject any purported style  improvement that might result in a substantive change in the  application of a rule. The Committee considered a change to be  “substantive” if any of the following conditions were met: a.  Under  the existing practice in any circuit, the change could lead to a  different result on a question of admissibility (e.g., a change that  requires a court to provide either a less or more stringent standard  in evaluating the admissibility of particular evidence); b.  Under  the existing practice in any circuit, it could lead to a change in the  procedure by which an admissibility decision is made (e.g., a change in  the time in which an objection must be made, or a change in whether a  court must hold a hearing on an admissibility question); c.  It  alters the structure of a rule in a way that may alter the approach  that courts and litigants have used to think about, and argue about,  questions of admissibility (e.g., merging Rules 104(a) and 104(b) into a  single subdivision); or d.  It  changes a “sacred phrase” — phrases that have become so familiar in  practice that to alter them would be unduly disruptive. Examples in the  Evidence Rules include “unfair prejudice” and “truth of the matter  asserted.”


Rule 409. Offers to Pay Medical and Similar ExpensesEvidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. Notes (Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1933; Apr. 26, 2011, eff. Dec. 1, 2011.) Notes of Advisory Committee on Proposed Rules The considerations underlying this rule parallel  those underlying Rules 407 and 408, which deal respectively with  subsequent remedial measures and offers of compromise. As stated in  Annot., 20 A.L.R.2d 291, 293: “[G]enerally, evidence of payment of medical,  hospital, or similar expenses of an injured party by the opposing party,  is not admissible, the reason often given being that such payment or  offer is usually made from humane impulses and not from an admission of  liability, and that to hold otherwise would tend to discourage  assistance to the injured person.” Contrary to Rule 408, dealing with offers of  compromise, the present rule does not extend to conduct or statements  not a part of the act of furnishing or offering or promising to pay.  This difference in treatment arises from fundamental differences in  nature. Communication is essential if compromises are to be effected,  and consequently broad protection of statements is needed. This is not  so in cases of payments or offers or promises to pay medical expenses,  where factual statements may be expected to be incidental in nature. For rules on the same subject, but phrased in terms  of “humanitarian motives,” see Uniform Rule 52; California Evidence  Code §1152; Kansas Code of Civil Procedure §60–452; New Jersey Evidence  Rule 52. Committee Notes on Rules—2011 Amendment The language of Rule 409 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.