Federal Rules of Evidence

Rules by Topic and Section

FRE 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.

FRE 102

These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

FRE 102: Rest of the Story

Carlisle v. United States, 517 U.S. 416 (1996).

1. Judgment of acquittal filed one day late. Trial judge granted late motion. Overruled by SCOTUS. 

2. The command to interpret the rules to do justice “sets forth a principle to be used in construing ambiguous rules, not a principle of law superseding clear rules that do not achieve their stated objectives.” 

FRE 104(a)

In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

FRE 1101

Applicability of the Rules:

(a) To Courts and Judges. These rules apply to proceedings before:  · United States district courts;  · United States bankruptcy and magistrate judges;  · United States courts of appeals;  · the United States Court of Federal Claims; and  · the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands.  (b) To Cases and Proceedings. These rules apply in:  · civil cases and proceedings, including bankruptcy, admiralty, and maritime cases;  · criminal cases and proceedings; and  · contempt proceedings, except those in which the court may act summarily.  (c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding.  (d) Exceptions. These rules — except for those on privilege — do not apply to the following:  (1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility;  (2) grand-jury proceedings; and  (3) miscellaneous proceedings such as:  · extradition or rendition;  · issuing an arrest warrant, criminal summons, or search warrant;  · a preliminary examination in a criminal case;  · sentencing;  · granting or revoking probation or supervised release; and  · considering whether to release on bail or otherwise.  (e) Other Statutes and Rules. A federal statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence independently from these rules.

FRE 103

FRE 201

FRE 301

Presumptions in Civil Cases Generally

In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a [rebuttable] 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.

FRE 302

FRE 601

Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

FRE 602

Need for personal knowledge

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.

Basically: If you can show a video of the witness at a different location than the scene, you can how they do not have personal knowledge of what happened .

FRE 603

Oath or Affirmation to Testify Truthfully

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

FRE 604

FRE 605

Competency of Judge as Witness

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

FRE 606(a)

(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

FRE 610

FRE 702

Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert's opinion reflects a reliable application of the principles and methods to the facts of the case.

FRE 704

Opinion on an Ultimate Issue

(a) In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.

(b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

FRE 701

Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

FRE 703

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

FRE 705

FRE 706

FRE 611

Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

FRE 612

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:

(1) while testifying; or

(2) before testifying, if the court decides that justice requires the party to have those options.

(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.

(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or — if justice so requires — declare a mistrial.

FRE 614

Court’s Calling or Examining Witnesses

(a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.

(b) Examining. The court may examine a witness regardless of who calls the witness.

(c) Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.

FRE 615

FRE 401

Test for Relevance Evidence

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (question of logic)

(b) the fact is of consequence in determining the action. (question of law)

FRE 402

FRE 403

Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time or Other Reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

FRE 105

FRE 411

FRE 407

FRE 408

FRE 409

FRE 410

FRE 404

FRE 405

FRE 406

FRE 404(a)(2)

FRE 405

FRE 413

FRE 414

FRE 415

FRE 404(a)(2)(B)

404(a)(2)(C)

FRE 412

FRE 611(b)

Mode and Order of Examining Witnesses and Presenting Evidence

(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

FRE 610

FRE 404(a)(3)

FRE 607

FRE 608

FRE 609

FRE 613

FRE 901

FRE 902

FRE 903

FRE 1001

FRE 1002

FRE 1003

FRE 1004

FRE 1005

FRE 1006

FRE 1007

FRE 1008

FRE 802

FRE 801(a)

FRE 801(b)

FRE 801(c)

FRE 801(d)(2)

FRE 613(b)

FRE 805

FRE 806

FRE 106 (committee note change)

A provision addressing the rule of completeness, which allows a party to introduce additional evidence to ensure that partial statements are not misleading.

FRE 801(d)(1)

FRE 803(19)

FRE 803(20)

FRE 803(21)

FRE 803(22)

FRE 803(23)

FRE 803(1)

FRE 803(2)

FRE 803(3)

FRE 803(4)

FRE 803(5)

FRE 803(6)

FRE 803(7)

FRE 803(8)

FRE 803(9)

FRE 803(10)

FRE 803(11)

FRE 803(12)

FRE 803(13)

FRE 803(14)

FRE 803(15)

FRE 803(16)

FRE 803(17)

FRE 803(18)

FRE 804

FRE 807

FRE 501