US (United States) Code. Title 28. Appendix 5

Codificación normativa de EEUU (Estados Unidos). Legislación federal estadounidense # Federal rules of civil procedure

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publicidad

-CITE-

28 USC APPENDIX Form 24 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 24. Request for Production of Documents, etc., Under Rule 34

-STATUTE-

Plaintiff A. B. requests defendant C. D. to respond within ___

days to the following requests:

(1) That defendant produce and permit plaintiff to inspect and to

copy each of the following documents:

(Here list the documents either individually or by category and

describe each of them.)

(Here state the time, place, and manner of making the inspection

and performance of any related acts.)

(2) That defendant produce and permit plaintiff to inspect and to

copy, test, or sample each of the following objects:

(Here list the objects either individually or by category and

describe each of them.)

(Here state the time, place, and manner of making the inspection

and performance of any related acts.)

(3) That defendant permit plaintiff to enter (here describe

property to be entered) and to inspect and to photograph, test or

sample (here describe the portion of the real property and the

objects to be inspected).

(Here state the time, place, and manner of making the inspection

and performance of any related acts.)

Signed: ______________,

ATTORNEY FOR PLAINTIFF.

Address: _____________

-SOURCE-

(As amended Mar. 30, 1970, eff. July 1, 1970.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1970 AMENDMENT

Form 24 is revised to accord with the changes made in Rule 34.

-End-

-CITE-

28 USC APPENDIX Form 25 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 25. Request for Admission Under Rule 36

-STATUTE-

Plaintiff A. B. requests defendant C. D. within ____ days after

service of this request to make the following admissions for the

purpose of this action only and subject to all pertinent objections

to admissibility which may be interposed at the trial:

1. That each of the following documents, exhibited with this

request, is genuine.

(Here list the documents and describe each document.)

2. That each of the following statements is true.

(Here list the statements.)

Signed: ______________,

ATTORNEY FOR PLAINTIFF.

Address: _____________

-SOURCE-

(As amended Dec. 27, 1946, eff. Mar. 19, 1948.)

-End-

-CITE-

28 USC APPENDIX Form 26 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 26. Allegation of Reason for Omitting Party

-STATUTE-

When it is necessary, under Rule 19(c), for the pleader to set

forth in his pleading the names of persons who ought to be made

parties, but who are not so made, there should be an allegation

such as the one set out below:

John Doe named in this complaint is not made a party to this

action [because he is not subject to the jurisdiction of this

court]; [because he cannot be made a party to this action without

depriving this court of jurisdiction].

-End-

-CITE-

28 USC APPENDIX Form 27 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

[Form 27. Abrogated Dec. 4, 1967, eff. July 1, 1968]

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1967

The form of notice of appeal is transferred to the Federal Rules

of Appellate Procedure as Form 1.

-End-

-CITE-

28 USC APPENDIX Form 28 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 28. Notice: Condemnation

-STATUTE-

United States District Court for the Southern District of New

York

CIVIL ACTION, FILE NUMBER __

<p><img src="http://uscode.house.gov/images/code03/images/28Af28.gif" width=576 height=579 alt="Image of item"><p>

To (here insert the names of the defendants to whom the

notice is directed):

You are hereby notified that a complaint in condemnation has

heretofore been filed in the office of the clerk of the United

States District Court for the Southern District of New York, in the

United States Court House in New York City, New York, for the

taking (here state the interest to be acquired, as "an estate in

fee simple") for use (here state briefly the use, "as a site for a

post-office building") of the following described property in which

you have or claim an interest.

(Here insert brief description of the property in which the

defendants, to whom the notice is directed, have or claim an

interest.)

The authority for the taking is (here state briefly, as "the Act

of ___, ___ Stat. ___, U.S.C., Title ___, Sec. ___".) (!1)

You are further notified that if you desire to present any

objection or defense to the taking of your property you are

required to serve your answer on the plaintiff's attorney at the

address herein designated within twenty days after ________.(!2)

Your answer shall identify the property in which you claim to

have an interest, state the nature and extent of the interest you

claim, and state all of your objections and defenses to the taking

of your property. All defenses and objections not so presented are

waived. And in case of your failure so to answer the complaint,

judgment of condemnation of that part of the above-described

property in which you have or claim an interest will be rendered.

But without answering, you may serve on the plaintiff's attorney

a notice of appearance designating the property in which you claim

to be interested. Thereafter you will receive notice of all

proceedings affecting it. At the trial of the issue of just

compensation, whether or not you have previously appeared or

answered, you may present evidence as to the amount of the

compensation to be paid for your property, and you may share in the

distribution of the award.

_________________

United States Attorney.

Address _____________

(Here state an address within the district where the United

States Attorney may be served as "United States Court House, New

York, N.Y.".)

Dated ____

(!1) And where appropriate add a citation to any applicable

Executive Order.

(!2) Here insert the words "personal service of this notice upon

you," if personal service is to be made pursuant to

subdivision (d)(3)(i) of this rule [Rule 71A]; or, insert the

date of the last publication of notice, if service by publication

is to be made pursuant to subdivision (d)(3)(ii) of this rule.

-SOURCE-

(As added May 1, 1951, eff. Aug. 1, 1951.)

-End-

-CITE-

28 USC APPENDIX Form 29 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 29. Complaint: Condemnation

-STATUTE-

United States District Court for the Southern District of New

York

CIVIL ACTION, FILE NUMBER __

<p><img src="http://uscode.house.gov/images/code03/images/28Af29.gif" width=576 height=579 alt="Image of item"><p>

1. This is an action of a civil nature brought by the United

States of America for the taking of property under the power of

eminent domain and for the ascertainment and award of just

compensation to the owners and parties in interest.(!1)

2. The authority for the taking is (here state briefly, as "the

Act of ___, ___ Stat. ___, U.S.C., Title ___, Sec. ___") (!2).

3. The use for which the property is to be taken is (here state

briefly the use, "as a site for a post-office building").

4. The interest to be acquired in the property is (here state the

interest as "an estate in fee simple").

5. The property so to be taken is (here set forth a description

of the property sufficient for its identification) or (described in

Exhibit A hereto attached and made a part hereof).

6. The persons known to the plaintiff to have or claim an

interest in the property (!3) are:

(Here set forth the names of such persons and the interests

claimed.) (!4)

7. In addition to the persons named, there are or may be others

who have or may claim some interest in the property to be taken,

whose names are unknown to the plaintiff and on diligent inquiry

have not been ascertained. They are made parties to the action

under the designation "Unknown Owners."

Wherefore the plaintiff demands judgment that the property be

condemned and that just compensation for the taking be ascertained

and awarded and for such other relief as may be lawful and proper.

_________________

United States Attorney.

Address _____________

(Here state an address within the district where the United

States Attorney may be served, as "United States Court House, New

York, N. Y.".)

(!1) If the plaintiff is not the United States, but is, for example,

a corporation invoking the power of eminent domain delegated to

it by the state, then this paragraph 1 of the complaint should

be appropriately modified and should be preceded by a paragraph

appropriately alleging federal jurisdiction for the action,

such as diversity. See Form 2.

(!2) And where appropriate add a citation to any applicable Executive

Order.

(!3) At the commencement of the action the plaintiff need name as

defendants only the persons having or claiming an interest in the

property whose names are then known, but prior to any hearing

involving the compensation to be paid for a particular piece of

property the plaintiff must add as defendants all persons having

or claiming an interest in that property whose names can be

ascertained by an appropriate search of the records and also

those whose names have otherwise been learned. See Rule 71A(c)(2).

(!4) The plaintiff should designate, as to each separate piece of

property, the defendants who have been joined as owners thereof

or of some interest therein. See Rule 71A(c)(2).

-SOURCE-

(As added May 1, 1951, eff. Aug. 1, 1951.)

-End-

-CITE-

28 USC APPENDIX Form 30 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 30. Suggestion of Death Upon the Record Under Rule 25(a)(1)

-STATUTE-

A. B. [describe as a party, or as executor, administrator, or

other representative or successor of C. D., the deceased party]

suggests upon the record, pursuant to Rule 25(a)(1), the death of

C. D. [describe as party] during the pendency of this action.

-SOURCE-

(Added Jan. 21, 1963, eff. July 1, 1963.)

-End-

-CITE-

28 USC APPENDIX Form 31 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 31. Judgment on Jury Verdict

-STATUTE-

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

CIVIL ACTION, FILE NUMBER __

A. B., Plaintiff

v.

] Judgment

C. D., Defendant

This action came on for trial before the Court and a jury,

Honorable John Marshall, District Judge, presiding, and the issues

having been duly tried and the jury having duly rendered its

verdict,

It is Ordered and Adjudged

[that the plaintiff A. B. recover of the defendant C. D. the sum

of __, with interest thereon at the rate of _ percent as provided

by law, and his costs of action.]

[that the plaintiff take nothing, that the action be dismissed on

the merits, and that the defendant C. D. recover of the plaintiff

A. B. his costs of action.]

Dated at New York, New York, this __ day of ___, 19_.

____________,

Clerk of Court.

-MISC1-

NOTE

1. This Form is illustrative of the judgment to be entered upon

the general verdict of a jury. It deals with the cases where there

is a general jury verdict awarding the plaintiff money damages or

finding for the defendant, but is adaptable to other situations of

jury verdicts.

2. The clerk, unless the court otherwise orders, is required

forthwith to prepare, sign, and enter the judgment upon a general

jury verdict without awaiting any direction by the court. The form

of the judgment upon a special verdict or a general verdict

accompanied by answers to interrogatories shall be promptly

approved by the court, and the clerk shall thereupon enter it. See

Rule 58, as amended.

3. The Rules contemplate a simple judgment promptly entered. See

Rule 54(a). Every judgment shall be set forth on a separate

document. See Rule 58, as amended.

4. Attorneys are not to submit forms of judgment unless directed

in exceptional cases to do so by the court. See Rule 58, as

amended.

-SOURCE-

(As added Jan. 21, 1963, eff. July 1, 1963.)

-End-

-CITE-

28 USC APPENDIX Form 32 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 32. Judgment on Decision by the Court

-STATUTE-

United States District Court for the Southern District of New

York

CIVIL ACTION, FILE NUMBER __

A. B., Plaintiff

v.

] Judgment

C. D., Defendant

This action came on for [trial] [hearing] before the Court,

Honorable John Marshall, District Judge, presiding, and the issues

having been duly [tried] [heard] and a decision having been duly

rendered,

It is Ordered and Adjudged

[that the plaintiff A. B. recover of the defendant C. D. the sum

of__, with interest thereon at the rate of__ percent as provided by

law, and his costs of action.]

[that the plaintiff take nothing, that the action be dismissed on

the merits, and that the defendant C. D. recover of the plaintiff

A. B. his costs of action.]

Dated at New York, New York, this __ day of ___, 19_.

____________,

Clerk of Court.

-MISC1-

NOTES

1. This Form is illustrative of the judgment to be entered upon a

decision of the court. It deals with the cases of decisions by the

court awarding a party only money damages or costs, but is

adaptable to other decisions by the court.

2. The clerk, unless the court otherwise orders, is required

forthwith, without awaiting any direction by the court, to prepare,

sign, and enter the judgment upon a decision by the court that a

party shall recover only a sum certain or costs or that all relief

shall be denied. The form of the judgment upon a decision by the

court granting other relief shall be promptly approved by the

court, and the clerk shall thereupon enter it. See Rule 58, as

amended.

3. See also paragraphs 3-4 of the Explanatory Note to Form 31.

-SOURCE-

(As added Jan. 21, 1963, eff. July 1, 1963.)

-End-

-CITE-

28 USC APPENDIX Form 33 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 33. Notice of Availability of a Magistrate Judge to Exercise

Jurisdiction

-STATUTE-

In accordance with the provisions of Title 28, U.S.C. Sec.

636(c), you are hereby notified that a United States magistrate

judge of this district court is available to exercise the court's

jurisdiction and to conduct any or all proceedings in this case

including a jury or nonjury trial, and entry of a final judgment.

Exercise of this jurisdiction by a magistrate judge is, however,

permitted only if all parties voluntarily consent.

You may, without adverse substantive consequences, withhold your

consent, but this will prevent the court's jurisdiction from being

exercised by a magistrate judge. If any party withholds consent,

the identity of the parties consenting or withholding consent will

not be communicated to any magistrate judge or to the district

judge to whom the case has been assigned.

An appeal from a judgment entered by a magistrate judge may be

taken directly to the United States court of appeals for this

judicial circuit in the same manner as an appeal from any other

judgment of a district court.

Copies of the Form for the "Consent to Jurisdiction by a United

States Magistrate Judge" are available from the clerk of the court.

-SOURCE-

(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Apr. 22, 1993,

eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec. 1, 1997.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

This form, together with Form 34, is revised in light of the

Judicial Improvements Act of 1990. Section 308 modified 28 U.S.C.

Sec. 636(c)(2) to enhance the potential of parties consenting to

trial before a magistrate judge. While the exercise of jurisdiction

by a magistrate judge remains dependent on the voluntary consent of

the parties, the statute provides that the parties should be

advised, and may be reminded, of the availability of this option

and eliminates the proscription against judicial suggestions of the

potential benefits of referral provided the parties are also

advised that they "are free to withhold consent without adverse

substantive consequences." The parties may be advised if the

withholding of consent will result in a potential delay in trial.

-End-

-CITE-

28 USC APPENDIX Form 34 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 34. Consent to Exercise of Jurisdiction by a United States

Magistrate Judge

-STATUTE-

UNITED STATES DISTRICT COURT

______ DISTRICT OF ______

Plaintiff,

vs.

] Docket No. ____

Defendant.

CONSENT TO JURISDICTION BY A UNITED STATES MAGISTRATE JUDGE

In accordance with the provisions of Title 28, U.S.C. Sec.

636(c), the undersigned party or parties to the above-captioned

civil matter hereby voluntarily consent to have a United States

magistrate judge conduct any and all further proceedings in the

case, including trial, and order the entry of a final judgment.

______ __________________

Date Signature

Note: Return this form to the Clerk of the Court if you consent to

jurisdiction by a magistrate judge. Do not send a copy of this

form to any district judge or magistrate judge.

-SOURCE-

(As added Apr. 28, 1983, eff. Aug. 1, 1983; amended Apr. 22, 1993,

eff. Dec. 1, 1993; Apr. 11, 1997, eff. Dec. 1, 1997.)

-End-

-CITE-

28 USC APPENDIX Form 34A 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 34A. Order of Reference

-STATUTE-

UNITED STATES DISTRICT COURT

______ DISTRICT OF ______

Plaintiff,

vs.

] Docket No. ____

Defendant.

ORDER OF REFERENCE

IT IS HEREBY ORDERED that the above-captioned matter be referred

to United States Magistrate Judge ________ for all further

proceedings and entry of judgment in accordance with Title 28,

U.S.C. Sec. 636(c) and the consent of the parties.

_________________

U.S. District Judge

-SOURCE-

(As added Apr. 22, 1993, eff. Dec. 1, 1993.)

-End-

-CITE-

28 USC APPENDIX Form 35 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

APPENDIX OF FORMS

-HEAD-

Form 35. Report of Parties' Planning Meeting

-STATUTE-

[CAPTION AND NAMES OF PARTIES]

1. Pursuant to Fed. R. Civ. P. 26(f), a meeting was held on

___(date)___ at ___(place)___ and was attended by:

_____(name)_____ for plaintiff(s)

_____(name)_____ for defendant(s) _____(party name)_____

_____(name)_____ for defendant(s) _____(party name)_____

2. Pre-Discovery Disclosures. The parties [have exchanged] [will

exchange by ___(date)___] the information required by [Fed. R. Civ.

P. 26(a)(1)] [local rule __].

3. Discovery Plan. The parties jointly propose to the court the

following discovery plan: [Use separate paragraphs or subparagraphs

as necessary if parties disagree.]

Discovery will be needed on the following subjects: ___(brief

description of subjects on which discovery will be needed)___

All discovery commenced in time to be completed by

___(date)___. [Discovery on ___(issue for early discovery)___

to be completed by ___(date)___.]

Maximum of __ interrogatories by each party to any other

party. [Responses due __ days after service.]

Maximum of __ requests for admission by each party to any

other party. [Responses due __ days after service.]

Maximum of ___ depositions by plaintiff(s) and __ by

defendant(s).

Each deposition [other than of ______] limited to maximum of

__ hours unless extended by agreement of parties.

Reports from retained experts under Rule 26(a)(2) due:

from plaintiff(s) by __(date)__

from defendant(s) by __(date)__

Supplementations under Rule 26(e) due ___(time(s) or

interval(s))___.

4. Other Items. [Use separate paragraphs or subparagraphs as

necessary if parties disagree.]

The parties [request] [do not request] a conference with the

court before entry of the scheduling order.

The parties request a pretrial conference in ___(month and

year)___.

Plaintiff(s) should be allowed until ___(date)___ to join

additional parties and until ___(date)___ to amend the

pleadings.

Defendant(s) should be allowed until ___(date)___ to join

additional parties and until ___(date)___ to amend the

pleadings.

All potentially dispositive motions should be filed by

___(date)___.

Settlement [is likely] [is unlikely] [cannot be evaluated

prior to ___(date)___] [may be enhanced by use of the

following alternative dispute resolution procedure:

[____________].

Final lists of witnesses and exhibits under Rule 26(a)(3)

should be due

from plaintiff(s) by __(date)__

from defendant(s) by __(date)__

Parties should have __ days after service of final lists of

witnesses and exhibits to list objections under Rule

26(a)(3).

The case should be ready for trial by ___(date)___ [and at

this time is expected to take approximately ___(length of

time)___].

[Other matters.]

Date: ________

-SOURCE-

(As added Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

This form illustrates the type of report the parties are expected

to submit to the court under revised Rule 26(f) and may be useful

as a checklist of items to be discussed at the meeting.

-End-

-CITE-

28 USC APPENDIX SUPPLEMENTAL RULES FOR CERTAIN

ADMIRALTY AND MARITIME CLAIMS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

-HEAD-

SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES

The amendments to the Federal Rules of Civil Procedure to unify

the civil and admiralty procedure, together with the Supplemental

Rules for Certain Admiralty and Maritime Claims, completely

superseded the Admiralty Rules, effective July 1, 1966.

Accordingly, the latter were rescinded.

NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT

Since their promulgation in 1966, the Supplemental Rules for

Certain Admiralty and Maritime Claims have preserved the special

procedures of arrest and attachment unique to admiralty law. In

recent years, however, these Rules have been challenged as

violating the principles of procedural due process enunciated in

the United States Supreme Court's decision in Sniadach v. Family

Finance Corp., 395 U.S. 337 (1969), and later developed in Fuentes

v. Shevin, 407 U.S. 67 (1972); Mitchell v. W. T. Grant Co., 416

U.S. 600 (1974); and North Georgia Finishing, Inc. v. Di-Chem,

Inc., 419 U.S. 601 (1975). These Supreme Court decisions provide

five basic criteria for a constitutional seizure of property: (1)

effective notice to persons having interests in the property

seized, (2) judicial review prior to attachment, (3) avoidance of

conclusory allegations in the complaint, (4) security posted by the

plaintiff to protect the owner of the property under attachment,

and (5) a meaningful and timely hearing after attachment.

Several commentators have found the Supplemental Rules lacking on

some or all five grounds. E.g., Batiza & Partridge, The

Constitutional Challenge to Maritime Seizures, 26 Loy. L. Rev. 203

(1980); Morse, The Conflict Between the Supreme Court Admiralty

Rules and Sniadach-Fuentes: A Collision Course?, 3 Fla. St. U.L.

Rev. 1 (1975). The federal courts have varied in their disposition

of challenges to the Supplemental Rules. The Fourth and Fifth

Circuits have affirmed the constitutionality of Rule C. Amstar

Corp. v. S/S Alexandros T., 664 F.2d 904 (4th Cir. 1981); Merchants

National Bank of Mobile v. The Dredge General G. L. Gillespie, 663

F.2d 1338 (5th Cir. 1981), cert. dismissed, 456 U.S. 966 (1982).

However, a district court in the Ninth Circuit found Rule C

unconstitutional. Alyeska Pipeline Service Co. v. The Vessel Bay

Ridge, 509 F. Supp. 1115 (D. Alaska 1981), appeal dismissed, 703

F.2d 381 (9th Cir. 1983). Rule B(1) has received similar

inconsistent treatment. The Ninth and Eleventh Circuits have upheld

its constitutionality. Polar Shipping, Ltd. v. Oriental Shipping

Corp., 680 F.2d 627 (9th Cir. 1982); Schiffahartsgesellschaft

Leonhardt & Co. v. A. Bottacchi S. A. de Navegacion, 732 F.2d 1543

(11th Cir. 1984). On the other hand, a Washington district court

has found it to be constitutionally deficient. Grand Bahama

Petroleum Co. v. Canadian Transportation Agencies, Ltd., 450 F.

Supp. 447 (W.D. Wash. 1978). The constitutionality of both rules

was questioned in Techem Chem Co. v. M/T Choyo Maru, 416 F. Supp.

960 (D. Md. 1976). Thus, there is uncertainty as to whether the

current rules prescribe constitutionally sound procedures for

guidance of courts and counsel. See generally Note, Due Process in

Admiralty Arrest and Attachment, 56 Tex. L. Rev. 1091 (1978).

Due to the controversy and uncertainty that have surrounded the

Supplemental Rules, local admiralty bars and the Maritime Law

Association of the United States have sought to strengthen the

constitutionality of maritime arrest and attachment by encouraging

promulgation of local admiralty rules providing for prompt

post-seizure hearings. Some districts also adopted rules calling

for judicial scrutiny of applications for arrest or attachment.

Nonetheless, the result has been a lack of uniformity and continued

concern over the constitutionality of the existing practice. The

amendments that follow are intended to provide rules that meet the

requirements prescribed by the Supreme Court and to develop

uniformity in the admiralty practice.

-End-

-CITE-

28 USC APPENDIX Rule A 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

-HEAD-

Rule A. Scope of Rules

-STATUTE-

These Supplemental Rules apply to the procedure in admiralty and

maritime claims within the meaning of Rule 9(h) with respect to the

following remedies:

(1) Maritime attachment and garnishment;

(2) Actions in rem;

(3) Possessory, petitory, and partition actions;

(4) Actions for exoneration from or limitation of liability.

These rules also apply to the procedure in statutory condemnation

proceedings analogous to maritime actions in rem, whether within

the admiralty and maritime jurisdiction or not. Except as otherwise

provided, references in these Supplemental Rules to actions in rem

include such analogous statutory condemnation proceedings.

The general Rules of Civil Procedure for the United States

District Courts are also applicable to the foregoing proceedings

except to the extent that they are inconsistent with these

Supplemental Rules.

-SOURCE-

(As added Feb. 28, 1966, eff. July 1, 1966.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES

Certain distinctively maritime remedies must be preserved in

unified rules. The commencement of an action by attachment or

garnishment has heretofore been practically unknown in federal

jurisprudence except in admiralty, although the amendment of Rule

4(e) effective July 1, 1963, makes available that procedure in

accordance with state law. The maritime proceeding in rem is

unique, except as it has been emulated by statute, and is closely

related to the substantive maritime law relating to liens. Arrest

of the vessel or other maritime property is an historic remedy in

controversies over title or right to possession, and in disputes

among co-owners over the vessel's employment. The statutory right

to limit liability is limited to owners of vessels, and has its own

complexities. While the unified federal rules are generally

applicable to these distinctive proceedings, certain special rules

dealing with them are needed.

Arrest of the person and imprisonment for debt are not included

because these remedies are not peculiarly maritime. The practice is

not uniform but conforms to state law. See 2 Benedict Sec. 286; 28

U.S.C., Sec. 2007; FRCP 64, 69. The relevant provisions of

Admiralty Rules 2, 3, and 4 are unnecessary or obsolete.

No attempt is here made to compile a complete and self-contained

code governing these distinctively maritime remedies. The more

limited objective is to carry forward the relevant provisions of

the former Rules of Practice for Admiralty and Maritime Cases,

modernized and revised to some extent but still in the context of

history and precedent. Accordingly, these Rules are not to be

construed as limiting or impairing the traditional power of a

district court, exercising the admiralty and maritime jurisdiction,

to adapt its procedures and its remedies in the individual case,

consistently with these rules, to secure the just, speedy, and

inexpensive determination of every action. (See Swift & Co.,

Packers v. Compania Columbiana Del Caribe, S/A, 339 U.S. 684,

(1950); Rule 1). In addition, of course, the district courts retain

the power to make local rules not inconsistent with these rules.

See Rule 83; cf. Admiralty Rule 44.

-End-

-CITE-

28 USC APPENDIX Rule B 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

-HEAD-

Rule B. In Personam Actions: Attachment and Garnishment

-STATUTE-

(1) When Available; Complaint, Affidavit, Judicial Authorization,

and Process. In an in personam action:

(a) If a defendant is not found within the district, a verified

complaint may contain a prayer for process to attach the

defendant's tangible or intangible personal property - up to the

amount sued for - in the hands of garnishees named in the

process.

(b) The plaintiff or the plaintiff's attorney must sign and

file with the complaint an affidavit stating that, to the

affiant's knowledge, or on information and belief, the defendant

cannot be found within the district. The court must review the

complaint and affidavit and, if the conditions of this Rule B

appear to exist, enter an order so stating and authorizing

process of attachment and garnishment. The clerk may issue

supplemental process enforcing the court's order upon application

without further court order.

(c) If the plaintiff or the plaintiff's attorney certifies that

exigent circumstances make court review impracticable, the clerk

must issue the summons and process of attachment and garnishment.

The plaintiff has the burden in any post-attachment hearing under

Rule E(4)(f) to show that exigent circumstances existed.

(d)(i) If the property is a vessel or tangible property on

board a vessel, the summons, process, and any supplemental

process must be delivered to the marshal for service.

(ii) If the property is other tangible or intangible property,

the summons, process, and any supplemental process must be

delivered to a person or organization authorized to serve it, who

may be (A) a marshal; (B) someone under contract with the United

States; (C) someone specially appointed by the court for that

purpose; or, (D) in an action brought by the United States, any

officer or employee of the United States.

(e) The plaintiff may invoke state-law remedies under Rule 64

for seizure of person or property for the purpose of securing

satisfaction of the judgment.

(2) Notice to Defendant. No default judgment may be entered

except upon proof - which may be by affidavit - that:

(a) the complaint, summons, and process of attachment or

garnishment have been served on the defendant in a manner

authorized by Rule 4;

(b) the plaintiff or the garnishee has mailed to the defendant

the complaint, summons, and process of attachment or garnishment,

using any form of mail requiring a return receipt; or

(c) the plaintiff or the garnishee has tried diligently to give

notice of the action to the defendant but could not do so.

(3) Answer.

(a) By Garnishee. The garnishee shall serve an answer, together

with answers to any interrogatories served with the complaint,

within 20 days after service of process upon the garnishee.

Interrogatories to the garnishee may be served with the complaint

without leave of court. If the garnishee refuses or neglects to

answer on oath as to the debts, credits, or effects of the

defendant in the garnishee's hands, or any interrogatories

concerning such debts, credits, and effects that may be

propounded by the plaintiff, the court may award compulsory

process against the garnishee. If the garnishee admits any debts,

credits, or effects, they shall be held in the garnishee's hands

or paid into the registry of the court, and shall be held in

either case subject to the further order of the court.

(b) By Defendant. The defendant shall serve an answer within 30

days after process has been executed, whether by attachment of

property or service on the garnishee.

-SOURCE-

(As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 29, 1985,

eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 17, 2000,

eff. Dec. 1, 2000.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES

Subdivision (1)

This preserves the traditional maritime remedy of attachment and

garnishment, and carries forward the relevant substance of

Admiralty Rule 2. In addition, or in the alternative, provision is

made for the use of similar state remedies made available by the

amendment of Rule 4(e) effective July 1, 1963. On the effect of

appearance to defend against attachment see Rule E(8).

The rule follows closely the language of Admiralty Rule 2. No

change is made with respect to the property subject to attachment.

No change is made in the condition that makes the remedy available.

The rules have never defined the clause, "if the defendant shall

not be found within the district," and no definition is attempted

here. The subject seems one best left for the time being to

development on a case-by-case basis. The proposal does shift from

the marshal (on whom it now rests in theory) to the plaintiff the

burden of establishing that the defendant cannot be found in the

district.

A change in the context of the practice is brought about by Rule

4(f), which will enable summons to be served throughout the state

instead of, as heretofore, only within the district. The Advisory

Committee considered whether the rule on attachment and garnishment

should be correspondingly changed to permit those remedies only

when the defendant cannot be found within the state and concluded

that the remedy should not be so limited.

The effect is to enlarge the class of cases in which the

plaintiff may proceed by attachment or garnishment although

jurisdiction of the person of the defendant may be independently

obtained. This is possible at the present time where, for example,

a corporate defendant has appointed an agent within the district to

accept service of process but is not carrying on activities there

sufficient to subject it to jurisdiction. (Seawind Compania, S.A.

v. Crescent Line, Inc., 320 F.2d 580 (2d Cir. 1963)), or where,

though the foreign corporation's activities in the district are

sufficient to subject it personally to the jurisdiction, there is

in the district no officer on whom process can be served (United

States v. Cia. Naviera Continental, S.A., 178 F.Supp. 561,

(S.D.N.Y. 1959)).

Process of attachment or garnishment will be limited to the

district. See Rule E(3)(a).

Subdivision (2)

The former Admiralty Rules did not provide for notice to the

defendant in attachment and garnishment proceedings. None is

required by the principles of due process, since it is assumed that

the garnishee or custodian of the property attached will either

notify the defendant or be deprived of the right to plead the

judgment as a defense in an action against him by the defendant.

Harris v. Balk, 198 U.S. 215 (1905); Pennoyer v. Neff, 95 U.S. 714

(1878). Modern conceptions of fairness, however, dictate that

actual notice be given to persons known to claim an interest in the

property that is the subject of the action where that is reasonably

practicable. In attachment and garnishment proceedings the persons

whose interests will be affected by the judgment are identified by

the complaint. No substantial burden is imposed on the plaintiff by

a simple requirement that he notify the defendant of the action by

mail.

In the usual case the defendant is notified of the pendency of

the proceedings by the garnishee or otherwise, and appears to claim

the property and to make his answer. Hence notice by mail is not

routinely required in all cases, but only in those in which the

defendant has not appeared prior to the time when a default

judgment is demanded. The rule therefore provides only that no

default judgment shall be entered except upon proof of notice, or

of inability to give notice despite diligent efforts to do so. Thus

the burden of giving notice is further minimized.

In some cases the plaintiff may prefer to give notice by serving

process in the usual way instead of simply by mail. (Rule 4(d).) In

particular, if the defendant is in a foreign country the plaintiff

may wish to utilize the modes of notice recently provided to

facilitate compliance with foreign laws and procedures (Rule 4(i)).

The rule provides for these alternatives.

The rule does not provide for notice by publication because there

is no problem concerning unknown claimants, and publication has

little utility in proportion to its expense where the identity of

the defendant is known.

Subdivision (3)

Subdivision (a) incorporates the substance of Admiralty Rule 36.

The Admiralty Rules were silent as to when the garnishee and the

defendant were to answer. See also 2 Benedict ch. XXIV.

The rule proceeds on the assumption that uniform and definite

periods of time for responsive pleadings should be substituted for

return days (see the discussion under Rule C(6), below). Twenty

days seems sufficient time for the garnishee to answer (cf. FRCP

12(a)), and an additional 10 days should suffice for the defendant.

When allowance is made for the time required for notice to reach

the defendant this gives the defendant in attachment and

garnishment approximately the same time that defendants have to

answer when personally served.

NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT

Rule B(1) has been amended to provide for judicial scrutiny

before the issuance of any attachment or garnishment process. Its

purpose is to eliminate doubts as to whether the Rule is consistent

with the principles of procedural due process enunciated by the

Supreme Court in Sniadach v. Family Finance Corp., 395 U.S. 337

(1969); and later developed in Fuentes v. Shevin, 407 U.S. 67

(1972); Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974); and North

Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975). Such

doubts were raised in Grand Bahama Petroleum Co. v. Canadian

Transportation Agencies, Ltd., 450 F. Supp. 447 (W.D. Wash. 1978);

and Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A.

de Navegacion, 552 F. Supp. 771 (S.D. Ga. 1982), which was

reversed, 732 F.2d 1543 (11th Cir. 1984). But compare Polar

Shipping Ltd. v. Oriental Shipping Corp., 680 F.2d 627 (9th Cir.

1982), in which a majority of the panel upheld the

constitutionality of Rule B because of the unique commercial

context in which it is invoked. The practice described in Rule B(1)

has been adopted in some districts by local rule. E.g., N.D. Calif.

Local Rule 603.3; W.D. Wash. Local Admiralty Rule 15(d).

The rule envisions that the order will issue when the plaintiff

makes a prima facie showing that he has a maritime claim against

the defendant in the amount sued for and the defendant is not

present in the district. A simple order with conclusory findings is

contemplated. The reference to review by the "court" is broad

enough to embrace review by a magistrate as well as by a district

judge.

The new provision recognizes that in some situations, such as

when the judge is unavailable and the ship is about to depart from

the jurisdiction, it will be impracticable, if not impossible, to

secure the judicial review contemplated by Rule B(1). When "exigent

circumstances" exist, the rule enables the plaintiff to secure the

issuance of the summons and process of attachment and garnishment,

subject to a later showing that the necessary circumstances

actually existed. This provision is intended to provide a safety

valve without undermining the requirement of preattachment

scrutiny. Thus, every effort to secure judicial review, including

conducting a hearing by telephone, should be pursued before

resorting to the exigent-circumstances procedure.

Rule B(1) also has been amended so that the garnishee shall be

named in the "process" rather than in the "complaint." This should

solve the problem presented in Filia Compania Naviera, S.A. v.

Petroship, S.A., 1983 A.M.C. 1 (S.D.N.Y. 1982), and eliminate any

need for an additional judicial review of the complaint and

affidavit when a garnishee is added.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

COMMITTEE NOTES ON RULES - 2000 AMENDMENT

Rule B(1) is amended in two ways, and style changes have been

made.

The service provisions of Rule C(3) are adopted in paragraph (d),

providing alternatives to service by a marshal if the property to

be seized is not a vessel or tangible property on board a vessel.

The provision that allows the plaintiff to invoke state

attachment and garnishment remedies is amended to reflect the 1993

amendments of Civil Rule 4. Former Civil Rule 4(e), incorporated in

Rule B(1), allowed general use of state quasi-in-rem jurisdiction

if the defendant was not an inhabitant of, or found within, the

state. Rule 4(e) was replaced in 1993 by Rule 4(n)(2), which

permits use of state law to seize a defendant's assets only if

personal jurisdiction over the defendant cannot be obtained in the

district where the action is brought. Little purpose would be

served by incorporating Rule 4(n)(2) in Rule B, since maritime

attachment and garnishment are available whenever the defendant is

not found within the district, a concept that allows attachment or

garnishment even in some circumstances in which personal

jurisdiction also can be asserted. In order to protect against any

possibility that elimination of the reference to state quasi-in-rem

jurisdiction remedies might seem to defeat continued use of state

security devices, paragraph (e) expressly incorporates Civil Rule

64. Because Rule 64 looks only to security, not jurisdiction, the

former reference to Rule E(8) is deleted as no longer relevant.

Rule B(2)(a) is amended to reflect the 1993 redistribution of the

service provisions once found in Civil Rule 4(d) and (i). These

provisions are now found in many different subdivisions of Rule 4.

The new reference simply incorporates Rule 4, without designating

the new subdivisions, because the function of Rule B(2) is simply

to describe the methods of notice that suffice to support a default

judgment. Style changes also have been made.

-End-

-CITE-

28 USC APPENDIX Rule C 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

-HEAD-

Rule C. In Rem Actions: Special Provisions

-STATUTE-

(1) When Available. An action in rem may be brought:

(a) To enforce any maritime lien;

(b) Whenever a statute of the United States provides for a

maritime action in rem or a proceeding analogous thereto.

Except as otherwise provided by law a party who may proceed in

rem may also, or in the alternative, proceed in personam against

any person who may be liable.

Statutory provisions exempting vessels or other property owned or

possessed by or operated by or for the United States from arrest or

seizure are not affected by this rule. When a statute so provides,

an action against the United States or an instrumentality thereof

may proceed on in rem principles.

(2) Complaint. In an action in rem the complaint must:

(a) be verified;

(b) describe with reasonable particularity the property that is

the subject of the action;

(c) in an admiralty and maritime proceeding, state that the

property is within the district or will be within the district

while the action is pending;

(d) in a forfeiture proceeding for violation of a federal

statute, state:

(i) the place of seizure and whether it was on land or on

navigable waters;

(ii) whether the property is within the district, and if the

property is not within the district the statutory basis for the

court's exercise of jurisdiction over the property; and

(iii) all allegations required by the statute under which the

action is brought.

(3) Judicial Authorization and Process.

(a) Arrest Warrant.

(i) When the United States files a complaint demanding a

forfeiture for violation of a federal statute, the clerk must

promptly issue a summons and a warrant for the arrest of the

vessel or other property without requiring a certification of

exigent circumstances, but if the property is real property the

United States must proceed under applicable statutory

procedures.

(ii)(A) In other actions, the court must review the complaint

and any supporting papers. If the conditions for an in rem

action appear to exist, the court must issue an order directing

the clerk to issue a warrant for the arrest of the vessel or

other property that is the subject of the action.

(B) If the plaintiff or the plaintiff's attorney certifies

that exigent circumstances make court review impracticable, the

clerk must promptly issue a summons and a warrant for the

arrest of the vessel or other property that is the subject of

the action. The plaintiff has the burden in any post-arrest

hearing under Rule E(4)(f) to show that exigent circumstances

existed.

(b) Service.

(i) If the property that is the subject of the action is a

vessel or tangible property on board a vessel, the warrant and

any supplemental process must be delivered to the marshal for

service.

(ii) If the property that is the subject of the action is

other property, tangible or intangible, the warrant and any

supplemental process must be delivered to a person or

organization authorized to enforce it, who may be: (A) a

marshal; (B) someone under contract with the United States; (C)

someone specially appointed by the court for that purpose; or,

(D) in an action brought by the United States, any officer or

employee of the United States.

(c) Deposit in Court. If the property that is the subject of

the action consists in whole or in part of freight, the proceeds

of property sold, or other intangible property, the clerk must

issue - in addition to the warrant - a summons directing any

person controlling the property to show cause why it should not

be deposited in court to abide the judgment.

(d) Supplemental Process. The clerk may upon application issue

supplemental process to enforce the court's order without further

court order.

(4) Notice. No notice other than execution of process is required

when the property that is the subject of the action has been

released under Rule E(5). If the property is not released within 10

days after execution, the plaintiff must promptly - or within the

time that the court allows - give public notice of the action and

arrest in a newspaper designated by court order and having general

circulation in the district, but publication may be terminated if

the property is released before publication is completed. The

notice must specify the time under Rule C(6) to file a statement of

interest in or right against the seized property and to answer.

This rule does not affect the notice requirements in an action to

foreclose a preferred ship mortgage under 46 U.S.C. Secs. 31301 et

seq., as amended.

(5) Ancillary Process. In any action in rem in which process has

been served as provided by this rule, if any part of the property

that is the subject of the action has not been brought within the

control of the court because it has been removed or sold, or

because it is intangible property in the hands of a person who has

not been served with process, the court may, on motion, order any

person having possession or control of such property or its

proceeds to show cause why it should not be delivered into the

custody of the marshal or other person or organization having a

warrant for the arrest of the property, or paid into court to abide

the judgment; and, after hearing, the court may enter such judgment

as law and justice may require.

(6) Responsive Pleading; Interrogatories.

(a) Civil Forfeiture. In an in rem forfeiture action for

violation of a federal statute:

(i) a person who asserts an interest in or right against the

property that is the subject of the action must file a verified

statement identifying the interest or right:

(A) within 30 days after the earlier of (1) the date of

service of the Government's complaint or (2) completed

publication of notice under Rule C(4), or

(B) within the time that the court allows.

(ii) an agent, bailee, or attorney must state the authority

to file a statement of interest in or right against the

property on behalf of another; and

(iii) a person who files a statement of interest in or right

against the property must serve and file an answer within 20

days after filing the statement.

(b) Maritime Arrests and Other Proceedings. In an in rem action

not governed by Rule C(6)(a):

(i) A person who asserts a right of possession or any

ownership interest in the property that is the subject of the

action must file a verified statement of right or interest:

(A) within 10 days after the earlier of (1) the execution

of process, or (2) completed publication of notice under Rule

C(4), or

(B) within the time that the court allows;

(ii) the statement of right or interest must describe the

interest in the property that supports the person's demand for

its restitution or right to defend the action;

(iii) an agent, bailee, or attorney must state the authority

to file a statement of right or interest on behalf of another;

and

(iv) a person who asserts a right of possession or any

ownership interest must serve an answer within 20 days after

filing the statement of interest or right.

(c) Interrogatories. Interrogatories may be served with the

complaint in an in rem action without leave of court. Answers to

the interrogatories must be served with the answer to the

complaint.

-SOURCE-

(As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 29, 1985,

eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991,

eff. Dec. 1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 29, 2002,

eff. Dec. 1, 2002.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES

Subdivision (1).

This rule is designed not only to preserve the proceeding in rem

as it now exists in admiralty cases, but to preserve the substance

of Admiralty Rules 13-18. The general reference to enforcement of

any maritime lien is believed to state the existing law, and is an

improvement over the enumeration in the former Admiralty Rules,

which is repetitious and incomplete (e.g., there was no reference

to general average). The reference to any maritime lien is intended

to include liens created by state law which are enforceable in

admiralty.

The main concern of Admiralty Rules 13-18 was with the question

whether certain actions might be brought in rem or also, or in the

alternative, in personam. Essentially, therefore, these rules deal

with questions of substantive law, for in general an action in rem

may be brought to enforce any maritime lien, and no action in

personam may be brought when the substantive law imposes no

personal liability.

These rules may be summarized as follows:

1. Cases in which the plaintiff may proceed in rem and/or in

personam:

a. Suits for seamen's wages;

b. Suits by materialmen for supplies, repairs, etc.;

c. Suits for pilotage;

d. Suits for collision damages;

e. Suits founded on mere maritime hypothecation;

f. Suits for salvage.

2. Cases in which the plaintiff may proceed only in personam:

a. Suits for assault and beating.

3. Cases in which the plaintiff may proceed only in rem:

a. Suits on bottomry bonds.

The coverage is complete, since the rules omit mention of many

cases in which the plaintiff may proceed in rem or in personam.

This revision proceeds on the principle that it is preferable to

make a general statement as to the availability of the remedies,

leaving out conclusions on matters of substantive law. Clearly it

is not necessary to enumerate the cases listed under Item 1, above,

nor to try to complete the list.

The rule eliminates the provision of Admiralty Rule 15 that

actions for assault and beating may be brought only in personam. A

preliminary study fails to disclose any reason for the rule. It is

subject to so many exceptions that it is calculated to receive

rather than to inform. A seaman may sue in rem when he has been

beaten by a fellow member of the crew so vicious as to render the

vessel unseaworthy. The Rolph, 293 Fed. 269, aff'd 299 Fed. 52 (9th

Cir. 1923), or where the theory of the action is that a beating by

the master is a breach of the obligation under the shipping

articles to treat the seaman with proper kindness. The David Evans,

187 Fed. 775 (D. Hawaii 1911); and a passenger may sue in rem on

the theory that the assault is a breach of the contract of passage,

The Western States, 159 Fed. 354 (2d Cir. 1908). To say that an

action for money damages may be brought only in personam seems

equivalent to saying that a maritime lien shall not exist; and

that, in turn, seems equivalent to announcing a rule of substantive

law rather than a rule of procedure. Dropping the rule will leave

it to the courts to determine whether a lien exists as a matter of

substantive law.

The specific reference to bottomry bonds is omitted because, as a

matter of hornbook substantive law, there is no personal liability

on such bonds.

Subdivision (2).

This incorporates the substance of Admiralty Rules 21 and 22.

Subdivision (3).

Derived from Admiralty Rules 10 and 37. The provision that the

warrant is to be issued by the clerk is new, but is assumed to

state existing law.

There is remarkably little authority bearing on Rule 37, although

the subject would seem to be an important one. The rule appears on

its face to have provided for a sort of ancillary process, and this

may well be the case when tangible property, such as a vessel, is

arrested, and intangible property such as freight is incidentally

involved. It can easily happen, however, that the only property

against which the action may be brought is intangible, as where the

owner of a vessel under charter has a lien on subfreights. See 2

Benedict Sec. 299 and cases cited. In such cases it would seem that

the order to the person holding the fund is equivalent to original

process, taking the place of the warrant for arrest. That being so,

it would also seem that (1) there should be some provision for

notice, comparable to that given when tangible property is

arrested, and (2) it should not be necessary, as Rule 37 provided,

to petition the court for issuance of the process, but that it

should issue as of course. Accordingly the substance of Rule 37 is

included in the rule covering ordinary process, and notice will be

required by Rule C(4). Presumably the rules omit any requirement of

notice in these cases because the holder of the funds (e.g., the

cargo owner) would be required on general principles (cf. Harris v.

Balk, 198 U.S. 215 (1905) to notify his obligee (e.g., the

charterer); but in actions in rem such notice seems plainly

inadequate because there may be adverse claims to the fund (e.g.,

there may be liens against the subfreights for seamen's wages,

etc.). Compare Admiralty Rule 9.

Subdivision (4).

This carries forward the notice provision of Admiralty Rule 10,

with one modification. Notice by publication is too expensive and

ineffective a formality to be routinely required. When, as usually

happens, the vessel or other property is released on bond or

otherwise there is no point in publishing notice; the vessel is

freed from the claim of the plaintiff and no other interest in the

vessel can be affected by the proceedings. If however, the vessel

is not released, general notice is required in order that all

persons, including unknown claimants, may appear and be heard, and

in order that the judgment in rem shall be binding on all the

world.

Subdivision (5).

This incorporates the substance of Admiralty Rule 9.

There are remarkably few cases dealing directly with the rule. In

The George Prescott, 10 Fed. Cas. 222 (No. 5,339) (E.D.N.Y. 1865),

the master and crew of a vessel libeled her for wages, and other

lienors also filed libels. One of the lienors suggested to the

court that prior to the arrest of the vessel the master had removed

the sails, and asked that he be ordered to produce them. He

admitted removing the sails and selling them, justifying on the

ground that he held a mortgage on the vessel. He was ordered to pay

the proceeds into court. Cf. United States v. The Zarko, 187

F.Supp. 371 (S.D.Cal. 1960), where an armature belonging to a

vessel subject to a preferred ship mortgages was in possession of a

repairman claiming a lien.

It is evident that, though the rule has had a limited career in

the reported cases, it is a potentially important one. It is also

evident that the rule is framed in terms narrower than the

principle that supports it. There is no apparent reason for

limiting it to ships and their appurtenances (2 Benedict Sec. 299).

Also, the reference to "third parties" in the existing rule seems

unfortunate. In The George Prescott, the person who removed and

sold the sails was a plaintiff in the action, and relief against

him was just as necessary as if he had been a stranger.

Another situation in which process of this kind would seem to be

useful is that in which the principal property that is the subject

of the action is a vessel, but her pending freight is incidentally

involved. The warrant of arrest, and notice of its service, should

be all that is required by way of original process and notice;

ancillary process without notice should suffice as to the

incidental intangibles.

The distinction between Admiralty Rules 9 and 37 is not at once

apparent, but seems to be this: Where the action was against

property that could not be seized by the marshal because it is

intangible, the original process was required to be similar to that

issued against a garnishee, and general notice was required (though

not provided for by the present rule; cf. Advisory Committee's Note

to Rule C(3)). Under Admiralty Rule 9 property had been arrested

and general notice had been given, but some of the property had

been removed or for some other reason could not be arrested. Here

no further notice was necessary.

The rule also makes provision for this kind of situation: The

proceeding is against a vessel's pending freight only; summons has

been served on the person supposedly holding the funds, and general

notice has been given; it develops that another person holds all or

part of the funds. Ancillary process should be available here

without further notice.

Subdivision (6).

Adherence to the practice of return days seems unsatisfactory.

The practice varies significantly from district to district. A

uniform rule should be provided so that any claimant or defendant

can readily determine when he is required to file or serve a claim

or answer.

A virtue of the return-day practice is that it requires claimants

to come forward and identify themselves at an early stage of the

proceedings - before they could fairly be required to answer. The

draft is designed to preserve this feature of the present practice

by requiring early filing of the claim. The time schedule

contemplated in the draft is closely comparable to the present

practice in the Southern District of New York, where the claimant

has a minimum of 8 days to claim and three weeks thereafter to

answer.

This rule also incorporates the substance of Admiralty Rule 25.

The present rule's emphasis on "the true and bona fide owner" is

omitted, since anyone having the right to possession can claim (2

Benedict Sec. 324).

NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT

Rule C(3) has been amended to provide for judicial scrutiny

before the issuance of any warrant of arrest. Its purpose is to

eliminate any doubt as to the rule's constitutionality under the

Sniadach line of cases. Sniadach v. Family Finance Corp., 395 U.S.

337 (1969); Fuentes v. Shevin, 407 U.S. 67 (1972); Mitchell v. W.

T. Grant Co., 416 U.S. 600 (1974); and North Georgia Finishing,

Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975). This was thought

desirable even though both the Fourth and the Fifth Circuits have

upheld the existing rule. Amstar Corp. v. S/S Alexandros T., 664

F.2d 904 (4th Cir. 1981); Merchants National Bank of Mobile v. The

Dredge General G. L. Gillespie, 663 F.2d 1338 (5th Cir. 1981),

cert. dismissed, 456 U.S. 966 (1982). A contrary view was taken by

Judge Tate in the Merchants National Bank case and by the district

court in Alyeska Pipeline Service Co. v. The Vessel Bay Ridge, 509

F. Supp. 1115 (D. Alaska 1981), appeal dismissed, 703 F.2d 381 (9th

Cir. 1983).

The rule envisions that the order will issue upon a prima facie

showing that the plaintiff has an action in rem against the

defendant in the amount sued for and that the property is within

the district. A simple order with conclusory findings is

contemplated. The reference to review by the "court" is broad

enough to embrace a magistrate as well as a district judge.

The new provision recognizes that in some situations, such as

when a judge is unavailable and the vessel is about to depart from

the jurisdiction, it will be impracticable, if not impossible, to

secure the judicial review contemplated by Rule C(3). When "exigent

circumstances" exist, the rule enables the plaintiff to secure the

issuance of the summons and warrant of arrest, subject to a later

showing that the necessary circumstances actually existed. This

provision is intended to provide a safety valve without undermining

the requirement of pre-arrest scrutiny. Thus, every effort to

secure judicial review, including conducting a hearing by

telephone, should be pursued before invoking the

exigent-circumstances procedure.

The foregoing requirements for prior court review or proof of

exigent circumstances do not apply to actions by the United States

for forfeitures for federal statutory violations. In such actions a

prompt hearing is not constitutionally required, United States v.

Eight Thousand Eight Hundred and Fifty Dollars, 103 S.Ct. 2005

(1983); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663

(1974), and could prejudice the government in its prosecution of

the claimants as defendants in parallel criminal proceedings since

the forfeiture hearing could be misused by the defendants to obtain

by way of civil discovery information to which they would not

otherwise be entitled and subject the government and the courts to

the unnecessary burden and expense of two hearings rather than one.

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

These amendments are designed to conform the rule to Fed.R.Civ.P.

4, as amended. As with recent amendments to Rule 4, it is intended

to relieve the Marshals Service of the burden of using its limited

personnel and facilities for execution of process in routine

circumstances. Doing so may involve a contractual arrangement with

a person or organization retained by the government to perform

these services, or the use of other government officers and

employees, or the special appointment by the court of persons

available to perform suitably.

The seizure of a vessel, with or without cargo, remains a task

assigned to the Marshal. Successful arrest of a vessel frequently

requires the enforcement presence of an armed government official

and the cooperation of the United States Coast Guard and other

governmental authorities. If the marshal is called upon to seize

the vessel, it is expected that the same officer will also be

responsible for the seizure of any property on board the vessel at

the time of seizure that is to be the object of arrest or

attachment.

COMMITTEE NOTES ON RULES - 2000 AMENDMENT

Style changes have been made throughout the revised portions of

Rule C. Several changes of meaning have been made as well.

Subdivision 2. In rem jurisdiction originally extended only to

property within the judicial district. Since 1986, Congress has

enacted a number of jurisdictional and venue statutes for

forfeiture and criminal matters that in some circumstances permit a

court to exercise authority over property outside the district. 28

U.S.C. Sec. 1355(b)(1) allows a forfeiture action in the district

where an act or omission giving rise to forfeiture occurred, or in

any other district where venue is established by Sec. 1395 or by

any other statute. Section 1355(b)(2) allows an action to be

brought as provided in (b)(1) or in the United States District

Court for the District of Columbia when the forfeiture property is

located in a foreign country or has been seized by authority of a

foreign government. Section 1355(d) allows a court with

jurisdiction under Sec. 1355(b) to cause service in any other

district of process required to bring the forfeiture property

before the court. Section 1395 establishes venue of a civil

proceeding for forfeiture in the district where the forfeiture

accrues or the defendant is found; in any district where the

property is found; in any district into which the property is

brought, if the property initially is outside any judicial

district; or in any district where the vessel is arrested if the

proceeding is an admiralty proceeding to forfeit a vessel. Section

1395(e) deals with a vessel or cargo entering a port of entry

closed by the President, and transportation to or from a state or

section declared to be in insurrection. 18 U.S.C. Sec. 981(h)

creates expanded jurisdiction and venue over property located

elsewhere that is related to a criminal prosecution pending in the

district. These amendments, and related amendments of Rule E(3),

bring these Rules into step with the new statutes. No change is

made as to admiralty and maritime proceedings that do not involve a

forfeiture governed by one of the new statutes.

Subdivision (2) has been separated into lettered paragraphs to

facilitate understanding.

Subdivision (3). Subdivision (3) has been rearranged and divided

into lettered paragraphs to facilitate understanding.

Paragraph (b)(i) is amended to make it clear that any

supplemental process addressed to a vessel or tangible property on

board a vessel, as well as the original warrant, is to be served by

the marshal.

Subdivision (4). Subdivision (4) has required that public notice

state the time for filing an answer, but has not required that the

notice set out the earlier time for filing a statement of interest

or claim. The amendment requires that both times be stated.

A new provision is added, allowing termination of publication if

the property is released more than 10 days after execution but

before publication is completed. Termination will save money, and

also will reduce the risk of confusion as to the status of the

property.

Subdivision (6). Subdivision (6) has applied a single set of

undifferentiated provisions to civil forfeiture proceedings and to

in rem admiralty proceedings. Because some differences in procedure

are desirable, these proceedings are separated by adopting a new

paragraph (a) for civil forfeiture proceedings and recasting the

present rule as paragraph (b) for in rem admiralty proceedings. The

provision for interrogatories and answers is carried forward as

paragraph (c). Although this established procedure for serving

interrogatories with the complaint departs from the general

provisions of Civil Rule 26(d), the special needs of expedition

that often arise in admiralty justify continuing the practice.

Both paragraphs (a) and (b) require a statement of interest or

right rather than the "claim" formerly required. The new wording

permits parallel drafting, and facilitates cross-references in

other rules. The substantive nature of the statement remains the

same as the former claim. The requirements of (a) and (b) are,

however, different in some respects.

In a forfeiture proceeding governed by paragraph (a), a statement

must be filed by a person who asserts an interest in or a right

against the property involved. This category includes every right

against the property, such as a lien, whether or not it establishes

ownership or a right to possession. In determining who has an

interest in or a right against property, courts may continue to

rely on precedents that have developed the meaning of "claims" or

"claimants" for the purpose of civil forfeiture proceedings.

In an admiralty and maritime proceeding governed by paragraph

(b), a statement is filed only by a person claiming a right of

possession or ownership. Other claims against the property are

advanced by intervention under Civil Rule 24, as it may be

supplemented by local admiralty rules. The reference to ownership

includes every interest that qualifies as ownership under domestic

or foreign law. If an ownership interest is asserted, it makes no

difference whether its character is legal, equitable, or something

else.

Paragraph (a) provides more time than paragraph (b) for filing a

statement. Admiralty and maritime in rem proceedings often present

special needs for prompt action that do not commonly arise in

forfeiture proceedings.

Paragraphs (a) and (b) do not limit the right to make a

restricted appearance under Rule E(8).

COMMITTEE NOTES ON RULES - 2002 AMENDMENT

Rule C(3) is amended to reflect the provisions of 18 U.S.C. Sec.

985, enacted by the Civil Asset Forfeiture Reform Act of 2000, 114

Stat. 202, 214-215. Section 985 provides, subject to enumerated

exceptions, that real property that is the subject of a civil

forfeiture action is not to be seized until an order of forfeiture

is entered. A civil forfeiture action is initiated by filing a

complaint, posting notice, and serving notice on the property

owner. The summons and arrest procedure is no longer appropriate.

Rule C(6)(a)(i)(A) is amended to adopt the provision enacted by

18 U.S.C. Sec. 983(a)(4)(A), shortly before Rule C(6)(a)(i)(A) took

effect, that sets the time for filing a verified statement as 30

days rather than 20 days, and that sets the first alternative event

for measuring the 30 days as the date of service of the

Government's complaint.

Rule C(6)(a)(iii) is amended to give notice of the provision

enacted by 18 U.S.C. Sec. 983(a)(4)(B) that requires that the

answer in a forfeiture proceeding be filed within 20 days. Without

this notice, unwary litigants might rely on the provision of Rule

5(d) that allows a reasonable time for filing after service.

Rule C(6)(b)(iv) is amended to change the requirement that an

answer be filed within 20 days to a requirement that it be served

within 20 days. Service is the ordinary requirement, as in Rule

12(a). Rule 5(d) requires filing within a reasonable time after

service.

Changes Made After Publication and Comments. No changes have been

made since publication.

-End-

-CITE-

28 USC APPENDIX Rule D 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

-HEAD-

Rule D. Possessory, Petitory, and Partition Actions

-STATUTE-

In all actions for possession, partition, and to try title

maintainable according to the course of the admiralty practice with

respect to a vessel, in all actions so maintainable with respect to

the possession of cargo or other maritime property, and in all

actions by one or more part owners against the others to obtain

security for the return of the vessel from any voyage undertaken

without their consent, or by one or more part owners against the

others to obtain possession of the vessel for any voyage on giving

security for its safe return, the process shall be by a warrant of

arrest of the vessel, cargo, or other property, and by notice in

the manner provided by Rule B(2) to the adverse party or parties.

-SOURCE-

(As added Feb. 28, 1966, eff. July 1, 1966.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES

This carries forward the substance of Admiralty Rule 19.

Rule 19 provided the remedy of arrest in controversies involving

title and possession in general. See The Tilton, 23 Fed. Cas. 1277

(No. 14, 054) (C.C.D. Mass. 1830). In addition it provided that

remedy in controversies between co-owners respecting the employment

of a vessel. It did not deal comprehensively with controversies

between co-owners, omitting the remedy of partition. Presumably the

omission is traceable to the fact that, when the rules were

originally promulgated, concepts of substantive law (sometimes

stated as concepts of jurisdiction) denied the remedy of partition

except where the parties in disagreement were the owners of equal

shares. See The Steamboat Orleans, 36 U.S. (11 Pet.) 175 (1837).

The Supreme Court has now removed any doubt as to the jurisdiction

of the district courts to partition a vessel, and has held in

addition that no fixed principle of federal admiralty law limits

the remedy to the case of equal shares. Madruga v. Superior Court,

346 U.S. 556 (1954). It is therefore appropriate to include a

reference to partition in the rule.

-End-

-CITE-

28 USC APPENDIX Rule E 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

-HEAD-

Rule E. Actions in Rem and Quasi in Rem: General Provisions

-STATUTE-

(1) Applicability. Except as otherwise provided, this rule

applies to actions in personam with process of maritime attachment

and garnishment, actions in rem, and petitory, possessory, and

partition actions, supplementing Rules B, C, and D.

(2) Complaint; Security.

(a) Complaint. In actions to which this rule is applicable the

complaint shall state the circumstances from which the claim

arises with such particularity that the defendant or claimant

will be able, without moving for a more definite statement, to

commence an investigation of the facts and to frame a responsive

pleading.

(b) Security for Costs. Subject to the provisions of Rule 54(d)

and of relevant statutes, the court may, on the filing of the

complaint or on the appearance of any defendant, claimant, or any

other party, or at any later time, require the plaintiff,

defendant, claimant, or other party to give security, or

additional security, in such sum as the court shall direct to pay

all costs and expenses that shall be awarded against the party by

any interlocutory order or by the final judgment, or on appeal by

any appellate court.

(3) Process.

(a) In admiralty and maritime proceedings process in rem or of

maritime attachment and garnishment may be served only within the

district.

(b) In forfeiture cases process in rem may be served within the

district or outside the district when authorized by statute.

(c) Issuance and Delivery. Issuance and delivery of process in

rem, or of maritime attachment and garnishment, shall be held in

abeyance if the plaintiff so requests.

(4) Execution of Process; Marshal's Return; Custody of Property;

Procedures for Release.

(a) In General. Upon issuance and delivery of the process, or,

in the case of summons with process of attachment and

garnishment, when it appears that the defendant cannot be found

within the district, the marshal or other person or organization

having a warrant shall forthwith execute the process in

accordance with this subdivision (4), making due and prompt

return.

(b) Tangible Property. If tangible property is to be attached

or arrested, the marshal or other person or organization having

the warrant shall take it into the marshal's possession for safe

custody. If the character or situation of the property is such

that the taking of actual possession is impracticable, the

marshal or other person executing the process shall affix a copy

thereof to the property in a conspicuous place and leave a copy

of the complaint and process with the person having possession or

the person's agent. In furtherance of the marshal's custody of

any vessel the marshal is authorized to make a written request to

the collector of customs not to grant clearance to such vessel

until notified by the marshal or deputy marshal or by the clerk

that the vessel has been released in accordance with these rules.

(c) Intangible Property. If intangible property is to be

attached or arrested the marshal or other person or organization

having the warrant shall execute the process by leaving with the

garnishee or other obligor a copy of the complaint and process

requiring the garnishee or other obligor to answer as provided in

Rules B(3)(a) and C(6); or the marshal may accept for payment

into the registry of the court the amount owed to the extent of

the amount claimed by the plaintiff with interest and costs, in

which event the garnishee or other obligor shall not be required

to answer unless alias process shall be served.

(d) Directions With Respect to Property in Custody. The marshal

or other person or organization having the warrant may at any

time apply to the court for directions with respect to property

that has been attached or arrested, and shall give notice of such

application to any or all of the parties as the court may direct.

(e) Expenses of Seizing and Keeping Property; Deposit. These

rules do not alter the provisions of Title 28, U.S.C., Sec. 1921,

as amended, relative to the expenses of seizing and keeping

property attached or arrested and to the requirement of deposits

to cover such expenses.

(f) Procedure for Release From Arrest or Attachment. Whenever

property is arrested or attached, any person claiming an interest

in it shall be entitled to a prompt hearing at which the

plaintiff shall be required to show why the arrest or attachment

should not be vacated or other relief granted consistent with

these rules. This subdivision shall have no application to suits

for seamen's wages when process is issued upon a certification of

sufficient cause filed pursuant to Title 46, U.S.C. Secs. 603 and

604 (!1) or to actions by the United States for forfeitures for

violation of any statute of the United States.

(5) Release of Property.

(a) Special Bond. Except in cases of seizures for forfeiture

under any law of the United States, whenever process of maritime

attachment and garnishment or process in rem is issued the

execution of such process shall be stayed, or the property

released, on the giving of security, to be approved by the court

or clerk, or by stipulation of the parties, conditioned to answer

the judgment of the court or of any appellate court. The parties

may stipulate the amount and nature of such security. In the

event of the inability or refusal of the parties so to stipulate

the court shall fix the principal sum of the bond or stipulation

at an amount sufficient to cover the amount of the plaintiff's

claim fairly stated with accrued interest and costs; but the

principal sum shall in no event exceed (i) twice the amount of

the plaintiff's claim or (ii) the value of the property on due

appraisement, whichever is smaller. The bond or stipulation shall

be conditioned for the payment of the principal sum and interest

thereon at 6 per cent per annum.

(b) General Bond. The owner of any vessel may file a general

bond or stipulation, with sufficient surety, to be approved by

the court, conditioned to answer the judgment of such court in

all or any actions that may be brought thereafter in such court

in which the vessel is attached or arrested. Thereupon the

execution of all such process against such vessel shall be stayed

so long as the amount secured by such bond or stipulation is at

least double the aggregate amount claimed by plaintiffs in all

actions begun and pending in which such vessel has been attached

or arrested. Judgments and remedies may be had on such bond or

stipulation as if a special bond or stipulation had been filed in

each of such actions. The district court may make necessary

orders to carry this rule into effect, particularly as to the

giving of proper notice of any action against or attachment of a

vessel for which a general bond has been filed. Such bond or

stipulation shall be indorsed by the clerk with a minute of the

actions wherein process is so stayed. Further security may be

required by the court at any time.

If a special bond or stipulation is given in a particular case,

the liability on the general bond or stipulation shall cease as

to that case.

(c) Release by Consent or Stipulation; Order of Court or Clerk;

Costs. Any vessel, cargo, or other property in the custody of the

marshal or other person or organization having the warrant may be

released forthwith upon the marshal's acceptance and approval of

a stipulation, bond, or other security, signed by the party on

whose behalf the property is detained or the party's attorney and

expressly authorizing such release, if all costs and charges of

the court and its officers shall have first been paid. Otherwise

no property in the custody of the marshal, other person or

organization having the warrant, or other officer of the court

shall be released without an order of the court; but such order

may be entered as of course by the clerk, upon the giving of

approved security as provided by law and these rules, or upon the

dismissal or discontinuance of the action; but the marshal or

other person or organization having the warrant shall not deliver

any property so released until the costs and charges of the

officers of the court shall first have been paid.

(d) Possessory, Petitory, and Partition Actions. The foregoing

provisions of this subdivision (5) do not apply to petitory,

possessory, and partition actions. In such cases the property

arrested shall be released only by order of the court, on such

terms and conditions and on the giving of such security as the

court may require.

(6) Reduction or Impairment of Security. Whenever security is

taken the court may, on motion and hearing, for good cause shown,

reduce the amount of security given; and if the surety shall be or

become insufficient, new or additional sureties may be required on

motion and hearing.

(7) Security on Counterclaim.

(a) When a person who has given security for damages in the

original action asserts a counterclaim that arises from the

transaction or occurrence that is the subject of the original

action, a plaintiff for whose benefit the security has been given

must give security for damages demanded in the counterclaim

unless the court, for cause shown, directs otherwise. Proceedings

on the original claim must be stayed until this security is

given, unless the court directs otherwise.

(b) The plaintiff is required to give security under Rule

E(7)(a) when the United States or its corporate instrumentality

counterclaims and would have been required to give security to

respond in damages if a private party but is relieved by law from

giving security.

(8) Restricted Appearance. An appearance to defend against an

admiralty and maritime claim with respect to which there has issued

process in rem, or process of attachment and garnishment, may be

expressly restricted to the defense of such claim, and in that

event is not an appearance for the purposes of any other claim with

respect to which such process is not available or has not been

served.

(9) Disposition of Property; Sales.

(a) Actions for Forfeitures. In any action in rem to enforce a

forfeiture for violation of a statute of the United States the

property shall be disposed of as provided by statute.

(b) Interlocutory Sales; Delivery.

(i) On application of a party, the marshal, or other person

having custody of the property, the court may order all or part

of the property sold - with the sales proceeds, or as much of

them as will satisfy the judgment, paid into court to await

further orders of the court - if:

(A) the attached or arrested property is perishable, or

liable to deterioration, decay, or injury by being detained

in custody pending the action;

(B) the expense of keeping the property is excessive or

disproportionate; or

(C) there is an unreasonable delay in securing release of

the property.

(ii) In the circumstances described in Rule E(9)(b)(i), the

court, on motion by a defendant or a person filing a statement

of interest or right under Rule C(6), may order that the

property, rather than being sold, be delivered to the movant

upon giving security under these rules.

(c) Sales, Proceeds. All sales of property shall be made by the

marshal or a deputy marshal, or by other person or organization

having the warrant, or by any other person assigned by the court

where the marshal or other person or organization having the

warrant is a party in interest; and the proceeds of sale shall be

forthwith paid into the registry of the court to be disposed of

according to law.

(10) Preservation of Property. When the owner or another person

remains in possession of property attached or arrested under the

provisions of Rule E(4)(b) that permit execution of process without

taking actual possession, the court, on a party's motion or on its

own, may enter any order necessary to preserve the property and to

prevent its removal.

-SOURCE-

(As added Feb. 28, 1966, eff. July 1, 1966; amended Apr. 29, 1985,

eff. Aug. 1, 1985; Mar. 2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991,

eff. Dec. 1, 1991; Apr. 17, 2000, eff. Dec. 1, 2000.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES

Subdivisions (1), (2).

Adapted from Admiralty Rule 24. The rule is based on the

assumption that there is no more need for security for costs in

maritime personal actions than in civil cases generally, but that

there is reason to retain the requirement for actions in which

property is seized. As to proceedings for limitation of liability

see Rule F(1).

Subdivision (3).

The Advisory Committee has concluded for practical reasons that

process requiring seizure of property should continue to be served

only within the geographical limits of the district. Compare Rule

B(1), continuing the condition that process of attachment and

garnishment may be served only if the defendant is not found within

the district.

The provisions of Admiralty Rule 1 concerning the persons by whom

process is to be served will be superseded by FRCP 4(c).

Subdivision (4).

This rule is intended to preserve the provisions of Admiralty

Rules 10 and 36 relating to execution of process, custody of

property, seized by the marshal, and the marshal's return. It is

also designed to make express provision for matters not heretofore

covered.

The provision relating to clearance in subdivision (b) is

suggested by Admiralty Rule 44 of the District of Maryland.

Subdivision (d) is suggested by English Rule 12, Order 75.

28 U.S.C. Sec. 1921 as amended in 1962 contains detailed

provisions relating to the expenses of seizing and preserving

property attached or arrested.

Subdivision (5).

In addition to Admiralty Rule 11 (see Rule E(9), the release of

property seized on process of attachment or in rem was dealt with

by Admiralty Rules 5, 6, 12, and 57, and 28 U.S.C., Sec. 2464

(formerly Rev. Stat. Sec. 941). The rule consolidates these

provisions and makes them uniformly applicable to attachment and

garnishment and actions in rem.

The rule restates the substance of Admiralty Rule 5. Admiralty

Rule 12 dealt only with ships arrested on in rem process. Since the

same ground appears to be covered more generally by 28 U.S.C., Sec.

2464, the subject matter of Rule 12 is omitted. The substance of

Admiralty Rule 57 is retained. 28 U.S.C., Sec. 2464 is incorporated

with changes of terminology, and with a substantial change as to

the amount of the bond. See 2 Benedict 395 n. 1a; The Lotosland, 2

F. Supp. 42 (S.D.N.Y. 1933). The provision for general bond is

enlarged to include the contingency of attachment as well as arrest

of the vessel.

Subdivision (6).

Adapted from Admiralty Rule 8.

Subdivision (7).

Derived from Admiralty Rule 50.

Title 46, U.S.C., Sec. 783 extends the principle of Rule 50 to

the Government when sued under the Public Vessels Act, presumably

on the theory that the credit of the Government is the equivalent

of the best security. The rule adopts this principle and extends it

to all cases in which the Government is defendant although the

Suits in Admiralty Act contains no parallel provisions.

Subdivision (8).

Under the liberal joinder provisions of unified rules the

plaintiff will be enabled to join with maritime actions in rem, or

maritime actions in personam with process of attachment and

garnishment, claims with respect to which such process is not

available, including nonmaritime claims. Unification should not,

however, have the result that, in order to defend against an

admiralty and maritime claim with respect to which process in rem

or quasi in rem has been served, the claimant or defendant must

subject himself personally to the jurisdiction of the court with

reference to other claims with respect to which such process is not

available or has not been served, especially when such other claims

are nonmaritime. So far as attachment and garnishment are concerned

this principle holds true whether process is issued according to

admiralty tradition and the Supplemental Rules or according to Rule

4(e) as incorporated by Rule B(1).

A similar problem may arise with respect to civil actions other

than admiralty and maritime claims within the meaning of Rule 9(h).

That is to say, in an ordinary civil action, whether maritime or

not, there may be joined in one action claims with respect to which

process of attachment and garnishment is available under state law

and Rule 4(e) and claims with respect to which such process is not

available or has not been served. The general Rules of Civil

Procedure do not specify whether an appearance in such cases to

defend the claim with respect to which process of attachment and

garnishment has issued is an appearance for the purposes of the

other claims. In that context the question has been considered best

left to case-by-case development. Where admiralty and maritime

claims within the meaning of Rule 9(h) are concerned, however, it

seems important to include a specific provision to avoid an

unfortunate and unintended effect of unification. No inferences

whatever as to the effect of such an appearance in an ordinary

civil action should be drawn from the specific provision here and

the absence of such a provision in the general Rules.

Subdivision (9).

Adapted from Admiralty Rules 11, 12, and 40. Subdivision (a) is

necessary because of various provisions as to disposition of

property in forfeiture proceedings. In addition to particular

statutes, note the provisions of 28 U.S.C., Secs. 2461-65.

The provision of Admiralty Rule 12 relating to unreasonable delay

was limited to ships but should have broader application. See 2

Benedict 404. Similarly, both Rules 11 and 12 were limited to

actions in rem, but should equally apply to attached property.

NOTES OF ADVISORY COMMITTEE ON RULES - 1985 AMENDMENT

Rule E(4)(f) makes available the type of prompt post-seizure

hearing in proceedings under Supplemental Rules B and C that the

Supreme Court has called for in a number of cases arising in other

contexts. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419

U.S. 601 (1975); Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974).

Although post-attachment and post-arrest hearings always have been

available on motion, an explicit statement emphasizing promptness

and elaborating the procedure has been lacking in the Supplemental

Rules. Rule E(4)(f) is designed to satisfy the constitutional

requirement of due process by guaranteeing to the shipowner a

prompt post-seizure hearing at which he can attack the complaint,

the arrest, the security demanded, or any other alleged deficiency

in the proceedings. The amendment also is intended to eliminate the

previously disparate treatment under local rules of defendants

whose property has been seized pursuant to Supplemental Rules B and

C.

The new Rule E(4)(f) is based on a proposal by the Maritime Law

Association of the United States and on local admiralty rules in

the Eastern, Northern, and Southern Districts of New York. E.D.N.Y.

Local Rule 13; N.D.N.Y. Local Rule 13; S.D.N.Y. Local Rule 12.

Similar provisions have been adopted by other maritime districts.

E.g., N.D. Calif. Local Rule 603.4; W.D. La. Local Admiralty Rule

21. Rule E(4)(f) will provide uniformity in practice and reduce

constitutional uncertainties.

Rule E(4)(f) is triggered by the defendant or any other person

with an interest in the property seized. Upon an oral or written

application similar to that used in seeking a temporary restraining

order, see Rule 65(b), the court is required to hold a hearing as

promptly as possible to determine whether to allow the arrest or

attachment to stand. The plaintiff has the burden of showing why

the seizure should not be vacated. The hearing also may determine

the amount of security to be granted or the propriety of imposing

counter-security to protect the defendant from an improper seizure.

The foregoing requirements for prior court review or proof of

exigent circumstances do not apply to actions by the United States

for forfeitures for federal statutory violations. In such actions a

prompt hearing is not constitutionally required, United States v.

Eight Thousand Eight Hundred and Fifty Dollars, 103 S.Ct. 2005

(1983); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663

(1974), and could prejudice the government in its prosecution of

the claimants as defendants in parallel criminal proceedings since

the forfeiture hearing could be misused by the defendants to obtain

by way of civil discovery information to which they would not

otherwise be entitled and subject the government and the courts to

the unnecessary burden and expense of two hearings rather than one.

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

These amendments are designed to conform this rule to

Fed.R.Civ.P. 4, as amended. They are intended to relieve the

Marshals Service of the burden of using its limited personnel and

facilities for execution of process in routine circumstances. Doing

so may involve a contractual arrangement with a person or

organization retained by the government to perform these services,

or the use of other government officers and employees, or the

special appointment by the court of persons available to perform

suitably.

COMMITTEE NOTES ON RULES - 2000 AMENDMENT

Style changes have been made throughout the revised portions of

Rule E. Several changes of meaning have been made as well.

Subdivision (3). Subdivision (3) is amended to reflect the

distinction drawn in Rule C(2)(c) and (d). Service in an admiralty

or maritime proceeding still must be made within the district, as

reflected in Rule C(2)(c), while service in forfeiture proceedings

may be made outside the district when authorized by statute, as

reflected in Rule C(2)(d).

Subdivision (7). Subdivision (7)(a) is amended to make it clear

that a plaintiff need give security to meet a counterclaim only

when the counterclaim is asserted by a person who has given

security to respond in damages in the original action.

Subdivision (8). Subdivision (8) is amended to reflect the change

in Rule B(1)(e) that deletes the former provision incorporating

state quasi-in-rem jurisdiction. A restricted appearance is not

appropriate when state law is invoked only for security under Civil

Rule 64, not as a basis of quasi-in-rem jurisdiction. But if state

law allows a special, limited, or restricted appearance as an

incident of the remedy adopted from state law, the state practice

applies through Rule 64 "in the manner provided by" state law.

Subdivision (9). Subdivision 9(b)(ii) is amended to reflect the

change in Rule C(6) that substitutes a statement of interest or

right for a claim.

Subdivision (10). Subdivision 10 is new. It makes clear the

authority of the court to preserve and to prevent removal of

attached or arrested property that remains in the possession of the

owner or other person under Rule E(4)(b).

-REFTEXT-

REFERENCES IN TEXT

Sections 603 and 604 of Title 46, referred to in subd. (4)(f),

were repealed by Pub. L. 98-89, Sec. 4(b), Aug. 26, 1983, 97 Stat.

600, section 1 of which enacted Title 46, Shipping.

-FOOTNOTE-

(!1) See References in Text note below.

-End-

-CITE-

28 USC APPENDIX Rule F 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF CIVIL PROCEDURE

SUPPLEMENTAL RULES FOR CERTAIN ADMIRALTY AND MARITIME CLAIMS

-HEAD-

Rule F. Limitation of Liability

-STATUTE-

(1) Time for Filing Complaint; Security. Not later than six

months after receipt of a claim in writing, any vessel owner may

file a complaint in the appropriate district court, as provided in

subdivision (9) of this rule, for limitation of liability pursuant

to statute. The owner (a) shall deposit with the court, for the

benefit of claimants, a sum equal to the amount or value of the

owner's interest in the vessel and pending freight, or approved

security therefor, and in addition such sums, or approved security

therefor, as the court may from time to time fix as necessary to

carry out the provisions of the statutes as amended; or (b) at the

owner's option shall transfer to a trustee to be appointed by the

court, for the benefit of claimants, the owner's interest in the

vessel and pending freight, together with such sums, or approved

security therefor, as the court may from time to time fix as

necessary to carry out the provisions of the statutes as amended.

The plaintiff shall also give security for costs and, if the

plaintiff elects to give security, for interest at the rate of 6

percent per annum from the date of the security.

(2) Complaint. The complaint shall set forth the facts on the

basis of which the right to limit liability is asserted and all

facts necessary to enable the court to determine the amount to

which the owner's liability shall be limited. The complaint may

demand exoneration from as well as limitation of liability. It

shall state the voyage if any, on which the demands sought to be

limited arose, with the date and place of its termination; the

amount of all demands including all unsatisfied liens or claims of

lien, in contract or in tort or otherwise, arising on that voyage,

so far as known to the plaintiff, and what actions and proceedings,

if any, are pending thereon; whether the vessel was damaged, lost,

or abandoned, and, if so, when and where; the value of the vessel

at the close of the voyage or, in case of wreck, the value of her

wreckage, strippings, or proceeds, if any, and where and in whose

possession they are; and the amount of any pending freight

recovered or recoverable. If the plaintiff elects to transfer the

plaintiff's interest in the vessel to a trustee, the complaint must

further show any prior paramount liens thereon, and what voyages or

trips, if any, she has made since the voyage or trip on which the

claims sought to be limited arose, and any existing liens arising

upon any such subsequent voyage or trip, with the amounts and

causes thereof, and the names and addresses of the lienors, so far

as known; and whether the vessel sustained any injury upon or by

reason of such subsequent voyage or trip.

(3) Claims Against Owner; Injunction. Upon compliance by the

owner with the requirements of subdivision (1) of this rule all

claims and proceedings against the owner or the owner's property

with respect to the matter in question shall cease. On application

of the plaintiff the court shall enjoin the further prosecution of

any action or proceeding against the plaintiff or the plaintiff's

property with respect to any claim subject to limitation in the

action.

(4) Notice to Claimants. Upon the owner's compliance with

subdivision (1) of this rule the court shall issue a notice to all

persons asserting claims with respect to which the complaint seeks

limitation, admonishing them to file their respective claims with

the clerk of the court and to serve on the attorneys for the

plaintiff a copy thereof on or before a date to be named in the

notice. The date so fixed shall not be less than 30 days after

issuance of the notice. For cause shown, the court may enlarge the

time within which claims may be filed. The notice shall be

published in such newspaper or newspapers as the court may direct

once a week for four successive weeks prior to the date fixed for

the filing of claims. The plaintiff not later than the day of

second publication shall also mail a copy of the notice to every

person known to have made any claim against the vessel or the

plaintiff arising out of the voyage or trip on which the claims

sought to be limited arose. In cases involving death a copy of such

notice shall be mailed to the decedent at the decedent's last known

address, and also to any person who shall be known to have made any

claim on account of such death.

(5) Claims and Answer. Claims shall be filed and served on or

before the date specified in the notice provided for in subdivision

(4) of this rule. Each claim shall specify the facts upon which the

claimant relies in support of the claim, the items thereof, and the

dates on which the same accrued. If a claimant desires to contest

either the right to exoneration from or the right to limitation of

liability the claimant shall file and serve an answer to the

complaint unless the claim has included an answer.

(6) Information To Be Given Claimants. Within 30 days after the

date specified in the notice for filing claims, or within such time

as the court thereafter may allow, the plaintiff shall mail to the

attorney for each claimant (or if the claimant has no attorney to

the claimant) a list setting forth (a) the name of each claimant,

(b) the name and address of the claimant's attorney (if the

claimant is known to have one), (c) the nature of the claim, i.e.,

whether property loss, property damage, death, personal injury

etc., and (d) the amount thereof.

(7) Insufficiency of Fund or Security. Any claimant may by motion

demand that the funds deposited in court or the security given by

the plaintiff be increased on the ground that they are less than

the value of the plaintiff's interest in the vessel and pending

freight. Thereupon the court shall cause due appraisement to be

made of the value of the plaintiff's interest in the vessel and

pending freight; and if the court finds that the deposit or

security is either insufficient or excessive it shall order its

increase or reduction. In like manner any claimant may demand that

the deposit or security be increased on the ground that it is

insufficient to carry out the provisions of the statutes relating

to claims in respect of loss of life or bodily injury; and, after

notice and hearing, the court may similarly order that the deposit

or security be increased or reduced.

(8) Objections to Claims: Distribution of Fund. Any interested

party may question or controvert any claim without filing an

objection thereto. Upon determination of liability the fund

deposited or secured, or the proceeds of the vessel and pending

freight, shall be divided pro rata, subject to all relevant

provisions of law, among the several claimants in proportion to the

amounts of their respective claims, duly proved, saving, however,

to all parties any priority to which they may be legally entitled.

(9) Venue; Transfer. The complaint shall be filed in any district

in which the vessel has been attached or arrested to answer for any

claim with respect to which the plaintiff seeks to limit liability;

or, if the vessel has not been attached or arrested, then in any

district in which the owner has been sued with respect to any such

claim. When the vessel has not been attached or arrested to answer

the matters aforesaid, and suit has not been commenced against the

owner, the proceedings may be had in the district in which the

vessel may be, but if the vessel is not within any district and no

suit has been commenced in any district, then the complaint may be

filed in any district. For the convenience of parties and

witnesses, in the interest of justice, the court may transfer the

action to any district; if venue is wrongly laid the court shall

dismiss or, if it be in the interest of justice, transfer the

action to any district in which it could have been brought. If the

vessel shall have been sold, the proceeds shall represent the

vessel for the purposes of these rules.

-SOURCE-

(As added Feb. 28, 1966, eff. July 1, 1966; amended Mar. 2, 1987,

eff. Aug. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES

Subdivision (1).

The amendments of 1936 to the Limitation Act superseded to some

extent the provisions of Admiralty Rule 51, especially with respect

to the time of filing the complaint and with respect to security.

The rule here incorporates in substance the 1936 amendment of the

Act (46 U.S.C., Sec. 185) with a slight modification to make it

clear that the complaint may be filed at any time not later than

six months after a claim has been lodged with the owner.

Subdivision (2).

Derived from Admiralty Rules 51 and 53.

Subdivision (3).

This is derived from the last sentence of 36 [46] U.S.C. Sec. 185

and the last paragraph of Admiralty Rule 51.

Subdivision (4).

Derived from Admiralty Rule 51.

Subdivision (5).

Derived from Admiralty Rules 52 and 53.

Subdivision (6).

Derived from Admiralty Rule 52.

Subdivision (7).

Derived from Admiralty Rules 52 and 36 [46] U.S.C., Sec. 185.

Subdivision (8).

Derived from Admiralty Rule 52.

Subdivision (9).

Derived from Admiralty Rule 54. The provision for transfer is

revised to conform closely to the language of 28 U.S.C. Secs.

1404(a) and 1406(a), though it retains the existing rule's

provision for transfer to any district for convenience. The

revision also makes clear what has been doubted: that the court may

transfer if venue is wrongly laid.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX FEDERAL RULES OF EVIDENCE 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

-HEAD-

FEDERAL RULES OF EVIDENCE

-MISC1-

(AS AMENDED TO JANUARY 22, 2002)

EFFECTIVE DATE AND APPLICATION OF RULES

Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1926, provided:

"That the following rules shall take effect on the one hundred and

eightieth day [July 1, 1975] beginning after the date of the

enactment of this Act [Jan. 2, 1975]. These rules apply to actions,

cases, and proceedings brought after the rules take effect. These

rules also apply to further procedure in actions, cases, and

proceedings then pending, except to the extent that application of

the rules would not be feasible, or would work injustice, in which

event former evidentiary principles apply."

HISTORICAL NOTE

The Federal Rules of Evidence were adopted by order of the

Supreme Court on Nov. 20, 1972, transmitted to Congress by the

Chief Justice on Feb. 5, 1973, and to have become effective on July

1, 1973. Pub. L. 93-12, Mar. 30, 1973, 87 Stat. 9, provided that

the proposed rules "shall have no force or effect except to the

extent, and with such amendments, as they may be expressly approved

by Act of Congress". Pub. L. 93-595, Jan. 2, 1975, 88 Stat. 1926,

enacted the Federal Rules of Evidence proposed by the Supreme

Court, with amendments made by Congress, to take effect on July 1,

1975.

The Rules have been amended Oct. 16, 1975, Pub. L. 94-113, Sec.

1, 89 Stat. 576, eff. Oct. 31, 1975; Dec. 12, 1975, Pub. L. 94-149,

Sec. 1, 89 Stat. 805; Oct. 28, 1978, Pub. L. 95-540, Sec. 2, 92

Stat. 2046; Nov. 6, 1978, Pub. L. 95-598, title II, Sec. 251, 92

Stat. 2673, eff. Oct. 1, 1979; Apr. 30, 1979, eff. Dec. 1, 1980;

Apr. 2, 1982, Pub. L. 97-164, title I, Sec. 142, title IV, Sec.

402, 96 Stat. 45, 57, eff. Oct. 1, 1982; Oct. 12, 1984, Pub. L.

98-473, title IV, Sec. 406, 98 Stat. 2067; Mar. 2, 1987, eff. Oct.

1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Nov. 18, 1988, Pub. L.

100-690, title VII, Secs. 7046, 7075, 102 Stat. 4400, 4405; Jan.

26, 1990, eff. Dec. 1, 1990; Apr. 30, 1991, eff. Dec. 1, 1991; Apr.

22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994;

Sept. 13, 1994, Pub. L. 103-322, title IV, Sec. 40141, title XXXII,

Sec. 320935, 108 Stat. 1918, 2135; Apr. 11, 1997, eff. Dec. 1,

1997; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 17, 2000, eff. Dec. 1,

2000.

ARTICLE I. GENERAL PROVISIONS

Rule

101. Scope.

102. Purpose and construction.

103. Rulings on evidence.

(a) Effect of erroneous ruling.

(1) Objection.

(2) Offer of proof.

(b) Record of offer and ruling.

(c) Hearing of jury.

(d) Plain error.

104. Preliminary questions.

(a) Questions of admissibility generally.

(b) Relevancy conditioned on fact.

(c) Hearing of jury.

(d) Testimony by accused.

(e) Weight and credibility.

105. Limited admissibility.

106. Remainder of or related writings on recorded

statements.

ARTICLE II. JUDICIAL NOTICE

201. Judicial notice of adjudicative facts.

(a) Scope of rule.

(b) Kinds of facts.

(c) When discretionary.

(d) When mandatory.

(e) Opportunity to be heard.

(f) Time of taking notice.

(g) Instructing jury.

ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

301. Presumptions in general in civil actions and

proceedings.

302. Applicability of State law in civil actions and

proceedings.

ARTICLE IV. RELEVANCY AND ITS LIMITS

401. Definition of "relevant evidence".

402. Relevant evidence generally admissible; irrelevant

evidence inadmissible.

403. Exclusion of relevant evidence on grounds of

prejudice, confusion, or waste of time.

404. Character evidence not admissible to prove conduct;

exceptions; other crimes.

(a) Character evidence generally.

(1) Character of accused.

(2) Character of alleged victim.

(3) Character of witness.

(b) Other crimes, wrongs, or acts.

405. Methods of proving character.

(a) Reputation or opinion.

(b) Specific instances of conduct.

406. Habit; routine practice.

407. Subsequent remedial measures.

408. Compromise and offers to compromise.

409. Payment of medical and similar expenses.

410. Inadmissibility of pleas, offers of pleas, and related

statements.(!1)

411. Liability insurance.

412. Sex Offense Cases; Relevance of Alleged Victim's Past

Sexual Behavior or Alleged Sexual Predisposition:

(!2)

(a) Evidence generally inadmissible.

(b) Exceptions.

(c) Procedure to determine admissibility.

413. Evidence of Similar Crimes in Sexual Assault

Cases.(!3)

414. Evidence of Similar Crimes in Child Molestation

Cases.(!3)

415. Evidence of Similar Acts in Civil Cases Concerning

Sexual Assault or Child Molestation.(!3)

ARTICLE V. PRIVILEGES

501. General rule.

ARTICLE VI. WITNESSES

601. General rule of competency.

602. Lack of personal knowledge.

603. Oath or affirmation.

604. Interpreters.

605. Competency of judge as witness.

606. Competency of juror as witness.

(a) At the trial.

(b) Inquiry into validity of verdict or indictment.

607. Who may impeach.

608. Evidence of character and conduct of witness.

(a) Opinion and reputation evidence of character.

(b) Specific instances of conduct.

609. Impeachment by evidence of conviction of crime.

(a) General rule.

(b) Time limit.

(c) Effect of pardon, annulment, or certificate of

rehabilitation.

(d) Juvenile adjudications.

(e) Pendency of appeal.

610. Religious beliefs or opinions.

611. Mode and order of interrogation and presentation.

(a) Control by court.

(b) Scope of cross-examination.

(c) Leading questions.

612. Writing used to refresh memory.

613. Prior statements of witnesses.

(a) Examining witness concerning prior statement.

(b) Extrinsic evidence of prior inconsistent

statement of witness.

614. Calling and interrogation of witnesses by court.

(a) Calling by court.

(b) Interrogation by court.

(c) Objections.

615. Exclusion of witnesses.

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

701. Opinion testimony by lay witnesses.

702. Testimony by experts.

703. Bases of opinion testimony by experts.

704. Opinion on ultimate issue.

705. Disclosure of facts or data underlying expert opinion.

706. Court appointed experts.

(a) Appointment.

(b) Compensation.

(c) Disclosure of appointment.

(d) Parties' experts of own selection.

ARTICLE VIII. HEARSAY

801. Definitions.

(a) Statement.

(b) Declarant.

(c) Hearsay.

(d) Statements which are not hearsay.

(1) Prior statement by witness.

(2) Admission by party-opponent.

802. Hearsay rule.

803. Hearsay exceptions; availability of declarant

immaterial.

(1) Present sense impression.

(2) Excited utterance.

(3) Then existing mental, emotional, or physical

condition.

(4) Statements for purposes of medical diagnosis or

treatment.

(5) Recorded recollection.

(6) Records of regularly conducted activity.

(7) Absence of entry in records kept in accordance

with the provisions of paragraph (6).

(8) Public records and reports.

(9) Records of vital statistics.

(10) Absence of public record or entry.

(11) Records of religious organizations.

(12) Marriage, baptismal, and similar certificates.

(13) Family records.

(14) Records of documents affecting an interest in

property.

(15) Statements in documents affecting an interest

in property.

(16) Statements in ancient documents.

(17) Market reports, commercial publications.

(18) Learned treatises.

(19) Reputation concerning personal or family

history.

(20) Reputation concerning boundaries or general

history.

(21) Reputation as to character.

(22) Judgment of previous conviction.

(23) Judgment as to personal, family, or general

history, or boundaries.

(24) Other exceptions (Transferred).

804. Hearsay exceptions; declarant unavailable.

(a) Definition of unavailability.

(b) Hearsay exceptions.

(1) Former testimony.

(2) Statement under belief of impending death.

(3) Statement against interest.

(4) Statement of personal or family history.

(5) Other exceptions (Transferred).

(6) Forfeiture by wrongdoing.

805. Hearsay within hearsay.

806. Attacking and supporting credibility of declarant.

807. Residual exception.

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

901. Requirement of authentication or identification.

(a) General provision.

(b) Illustrations.

(1) Testimony of witness with knowledge.

(2) Nonexpert opinion on handwriting.

(3) Comparison by trier or expert witness.

(4) Distinctive characteristics and the like.

(5) Voice identification.

(6) Telephone conversations.

(7) Public records or reports.

(8) Ancient documents or data compilation.

(9) Process or system.

(10) Methods provided by statute or rule.

902. Self-authentication.

(1) Domestic public documents under seal.

(2) Domestic public documents not under seal.

(3) Foreign public documents.

(4) Certified copies of public records.

(5) Official publications.

(6) Newspapers and periodicals.

(7) Trade inscriptions and the like.

(8) Acknowledged documents.

(9) Commercial paper and related documents.

(10) Presumptions under Acts of Congress.

(11) Certified domestic records of regularly

conducted activity.

(12) Certified foreign records of regularly

conducted activity.

903. Subscribing witness' testimony unnecessary.

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

1001. Definitions.

(1) Writings and recordings.

(2) Photographs.

(3) Original.

(4) Duplicate.

1002. Requirement of original.

1003. Admissibility of duplicates.

1004. Admissibility of other evidence of contents.

(1) Originals lost or destroyed.

(2) Original not obtainable.

(3) Original in possession of opponent.

(4) Collateral matters.

1005. Public records.

1006. Summaries.

1007. Testimony or written admission of party.

1008. Functions of court and jury.

ARTICLE XI. MISCELLANEOUS RULES

1101. Applicability of rules.

(a) Courts and judges.

(b) Proceedings generally.

(c) Rule of privilege.

(d) Rules inapplicable.

(1) Preliminary questions of fact.

(2) Grand jury.

(3) Miscellaneous proceedings.

(e) Rules applicable in part.

1102. Amendments.

1103. Title.

AMENDMENTS BY PUBLIC LAW

1994 - Pub. L. 103-322, title IV, Sec. 40141(c), Sept. 13, 1994,

108 Stat. 1919, substituted item 412 for one which read "Sex

offense cases; relevance of victim's past behavior."

1988 - Pub. L. 100-690, title VII, Sec. 7046(b), Nov. 18, 1988,

102 Stat. 4401, substituted "Sex offense" for "Rape" in item 412.

1978 - Pub. L. 95-540, Sec. 2(b), Oct. 28, 1978, 92 Stat. 2047,

added item 412.

1975 - Pub. L. 94-149, Sec. 1(1)-(8), Dec. 12, 1975, 89 Stat.

805, amended analysis as follows: item 106, substituted "or" for

"on"; item 301, inserted "in" after "general"; item 405(a),

inserted "or opinion" after "Reputation" and before the period;

item 410, substituted "Inadmissibility of pleas, offers of pleas,

and related statements" for "Offer to plead guilty; nolo

contendere; withdrawn plea of guilty"; item 501, substituted

"General rule"; item 608(a), substituted "Opinion and reputation"

for "Reputation"; item 901(b)(8), substituted "compilation" for

"compilations"; and item 1101(c), substituted "Rule" for "Rules".

-FOOTNOTE-

(!1) So in original. Does not conform to rule catchline.

(!2) So in original. The colon probably should be a period.

(!3) Editorially supplied. Rules 413 to 415 added by Pub. L.

103-322 without corresponding amendment of Table of Contents.

-End-

-CITE-

28 USC APPENDIX ARTICLE I. GENERAL PROVISIONS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE I. GENERAL PROVISIONS

-HEAD-

ARTICLE I. GENERAL PROVISIONS

-End-

-CITE-

28 USC APPENDIX Rule 101 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE I. GENERAL PROVISIONS

-HEAD-

Rule 101. Scope

-STATUTE-

These rules govern proceedings in the courts of the United States

and before the United States bankruptcy judges and United States

magistrate judges, to the extent and with the exceptions stated in

rule 1101.

-SOURCE-

(Pub. L. 93-595, Sec. 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.)

-MISC1-

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.

-End-

-CITE-

28 USC APPENDIX Rule 102 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE I. GENERAL PROVISIONS

-HEAD-

Rule 102. Purpose and Construction

-STATUTE-

These rules shall be construed to secure fairness in

administration, elimination of unjustifiable expense and delay, and

promotion of growth and development of the law of evidence to the

end that the truth may be ascertained and proceedings justly

determined.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1929.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

For similar provisions see Rule 2 of the Federal Rules of

Criminal Procedure, Rule 1 of the Federal Rules of Civil Procedure,

California Evidence Code Sec. 2, and New Jersey Evidence Rule 5.

-End-

-CITE-

28 USC APPENDIX Rule 103 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE I. GENERAL PROVISIONS

-HEAD-

Rule 103. Rulings on Evidence

-STATUTE-

(a) Effect of erroneous ruling. - Error may not be predicated

upon a ruling which admits or excludes evidence unless a

substantial right of the party is affected, and

(1) Objection. - In case the ruling is one admitting evidence,

a timely objection or motion to strike appears of record, stating

the specific ground of objection, if the specific ground was not

apparent from the context; or

(2) Offer of proof. - In case the ruling is one excluding

evidence, the substance of the evidence was made known to the

court by offer or was apparent from the context within which

questions were asked.

Once the court makes a definitive ruling on the record admitting or

excluding evidence, either at or before trial, a party need not

renew an objection or offer of proof to preserve a claim of error

for appeal.

(b) Record of offer and ruling. - The court may add any other or

further statement which shows the character of the evidence, the

form in which it was offered, the objection made, and the ruling

thereon. It may direct the making of an offer in question and

answer form.

(c) Hearing of jury. - In jury cases, proceedings shall be

conducted, to the extent practicable, so as to prevent inadmissible

evidence from being suggested to the jury by any means, such as

making statements or offers of proof or asking questions in the

hearing of the jury.

(d) Plain error. - Nothing in this rule precludes taking notice

of plain errors affecting substantial rights although they were not

brought to the attention of the court.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1930; Apr. 17,

2000, eff. Dec. 1, 2000.)

-MISC1-

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

Secs. 353 and 354; Kansas Code of Civil Procedure Secs. 60-404 and

60-405. The rule does not purport to change the law with respect to

harmless error. See 28 U.S.C. Sec. 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 Sec. 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. Sec. 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. Sec. 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. Sec. 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.

-End-

-CITE-

28 USC APPENDIX Rule 104 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE I. GENERAL PROVISIONS

-HEAD-

Rule 104. Preliminary Questions

-STATUTE-

(a) Questions of admissibility generally. - Preliminary questions

concerning the qualification of a person to be a witness, the

existence of a privilege, or the admissibility of evidence shall be

determined by the court, subject to the provisions of subdivision

(b). In making its determination it is not bound by the rules of

evidence except those with respect to privileges.

(b) Relevancy conditioned on fact. - When the relevancy of

evidence depends upon the fulfillment of a condition of fact, the

court shall admit it upon, or subject to, the introduction of

evidence sufficient to support a finding of the fulfillment of the

condition.

(c) Hearing of jury. - Hearings on the admissibility of

confessions shall in all cases be conducted out of the hearing of

the jury. Hearings on other preliminary matters shall be so

conducted when the interests of justice require, or when an accused

is a witness and so requests.

(d) Testimony by accused. - The accused does not, by testifying

upon a preliminary matter, become subject to cross-examination as

to other issues in the case.

(e) Weight and credibility. - This rule does not limit the right

of a party to introduce before the jury evidence relevant to weight

or credibility.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1930; Mar. 2, 1987,

eff. Oct. 1, 1987.)

-MISC1-

NOTES OF THE ADVISORY COMMITTEE ON PROPOSED RULES

Subdivision (a). The applicability of a particular rule of

evidence often depends upon the existence of a condition. Is the

alleged expert a qualified physician? Is a witness whose former

testimony is offered unavailable? Was a stranger present during a

conversation between attorney and client? In each instance the

admissibility of evidence will turn upon the answer to the question

of the existence of the condition. Accepted practice, incorporated

in the rule, places on the judge the responsibility for these

determinations. McCormick Sec. 53; Morgan, Basic Problems of

Evidence 45-50 (1962).

To the extent that these inquiries are factual, the judge acts as

a trier of fact. Often, however, rulings on evidence call for an

evaluation in terms of a legally set standard. Thus when a hearsay

statement is offered as a declaration against interest, a decision

must be made whether it possesses the required against-interest

characteristics. These decisions, too, are made by the judge.

In view of these considerations, this subdivision refers to

preliminary requirements generally by the broad term "questions,"

without attempt at specification.

This subdivision is of general application. It must, however, be

read as subject to the special provisions for "conditional

relevancy" in subdivision (b) and those for confessions in

subdivision (d).

If the question is factual in nature, the judge will of necessity

receive evidence pro and con on the issue. The rule provides that

the rules of evidence in general do not apply to this process.

McCormick Sec. 53, p. 123, n. 8, points out that the authorities

are "scattered and inconclusive," and observes:

"Should the exclusionary law of evidence, 'the child of the jury

system' in Thayer's phrase, be applied to this hearing before the

judge? Sound sense backs the view that it should not, and that the

judge should be empowered to hear any relevant evidence, such as

affidavits or other reliable hearsay."

This view is reinforced by practical necessity in certain

situations. An item, offered and objected to, may itself be

considered in ruling on admissibility, though not yet admitted in

evidence. Thus the content of an asserted declaration against

interest must be considered in ruling whether it is against

interest. Again, common practice calls for considering the

testimony of a witness, particularly a child, in determining

competency. Another example is the requirement of Rule 602 dealing

with personal knowledge. In the case of hearsay, it is enough, if

the declarant "so far as appears [has] had an opportunity to

observe the fact declared." McCormick, Sec. 10, p. 19.

If concern is felt over the use of affidavits by the judge in

preliminary hearings on admissibility, attention is directed to the

many important judicial determinations made on the basis of

affidavits. Rule 47 of the Federal Rules of Criminal Procedure

provides:

"An application to the court for an order shall be by motion * *

* It may be supported by affidavit."

The Rules of Civil Procedure are more detailed. Rule 43(e), dealing

with motions generally, provides:

"When a motion is based on facts not appearing of record the

court may hear the matter on affidavits presented by the respective

parties, but the court may direct that the matter be heard wholly

or partly on oral testimony or depositions."

Rule 4(g) provides for proof of service by affidavit. Rule 56

provides in detail for the entry of summary judgment based on

affidavits. Affidavits may supply the foundation for temporary

restraining orders under Rule 65(b).

The study made for the California Law Revision Commission

recommended an amendment to Uniform Rule 2 as follows:

"In the determination of the issue aforesaid [preliminary

determination], exclusionary rules shall not apply, subject,

however, to Rule 45 and any valid claim of privilege." Tentative

Recommendation and a Study Relating to the Uniform Rules of

Evidence (Article VIII, Hearsay), Cal. Law Revision Comm'n, Rep.,

Rec. & Studies, 470 (1962). The proposal was not adopted in the

California Evidence Code. The Uniform Rules are likewise silent on

the subject. However, New Jersey Evidence Rule 8(1), dealing with

preliminary inquiry by the judge, provides:

"In his determination the rules of evidence shall not apply

except for Rule 4 [exclusion on grounds of confusion, etc.] or a

valid claim of privilege."

Subdivision (b). In some situations, the relevancy of an item of

evidence, in the large sense, depends upon the existence of a

particular preliminary fact. Thus when a spoken statement is relied

upon to prove notice to X, it is without probative value unless X

heard it. Or if a letter purporting to be from Y is relied upon to

establish an admission by him, it has no probative value unless Y

wrote or authorized it. Relevance in this sense has been labelled

"conditional relevancy." Morgan, Basic Problems of Evidence 45-46

(1962). Problems arising in connection with it are to be

distinguished from problems of logical relevancy, e.g. evidence in

a murder case that accused on the day before purchased a weapon of

the kind used in the killing, treated in Rule 401.

If preliminary questions of conditional relevancy were determined

solely by the judge, as provided in subdivision (a), the

functioning of the jury as a trier of fact would be greatly

restricted and in some cases virtually destroyed. These are

appropriate questions for juries. Accepted treatment, as provided

in the rule, is consistent with that given fact questions

generally. The judge makes a preliminary determination whether the

foundation evidence is sufficient to support a finding of

fulfillment of the condition. If so, the item is admitted. If after

all the evidence on the issue is in, pro and con, the jury could

reasonably conclude that fulfillment of the condition is not

established, the issue is for them. If the evidence is not such as

to allow a finding, the judge withdraws the matter from their

consideration. Morgan, supra; California Evidence Code Sec. 403;

New Jersey Rule 8(2). See also Uniform Rules 19 and 67.

The order of proof here, as generally, is subject to the control

of the judge.

Subdivision (c). Preliminary hearings on the admissibility of

confessions must be conducted outside the hearing of the jury. See

Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908

(1964). Otherwise, detailed treatment of when preliminary matters

should be heard outside the hearing of the jury is not feasible.

The procedure is time consuming. Not infrequently the same evidence

which is relevant to the issue of establishment of fulfillment of a

condition precedent to admissibility is also relevant to weight or

credibility, and time is saved by taking foundation proof in the

presence of the jury. Much evidence on preliminary questions,

though not relevant to jury issues, may be heard by the jury with

no adverse effect. A great deal must be left to the discretion of

the judge who will act as the interests of justice require.

Subdivision (d). The limitation upon cross-examination is

designed to encourage participation by the accused in the

determination of preliminary matters. He may testify concerning

them without exposing himself to cross-examination generally. The

provision is necessary because of the breadth of cross-examination

under Rule 611(b).

The rule does not address itself to questions of the subsequent

use of testimony given by an accused at a hearing on a preliminary

matter. See Walder v. United States, 347 U.S. 62 (1954): Simmons v.

United States, 390 U.S. 377 (1968): Harris v. New York, 401 U.S.

222 (1971)

Subdivision (e). For similar provisions see Uniform Rule 8;

California Evidence Code Sec. 406; Kansas Code of Civil Procedure

Sec. 60-408; New Jersey Evidence Rule 8(1).

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

Rule 104(c) as submitted to the Congress provided that hearings

on the admissibility of confessions shall be conducted outside the

presence of the jury and hearings on all other preliminary matters

should be so conducted when the interests of justice require. The

Committee amended the Rule to provide that where an accused is a

witness as to a preliminary matter, he has the right, upon his

request, to be heard outside the jury's presence. Although

recognizing that in some cases duplication of evidence would occur

and that the procedure could be subject to abuse, the Committee

believed that a proper regard for the right of an accused not to

testify generally in the case dictates that he be given an option

to testify out of the presence of the jury on preliminary matters.

The Committee construes the second sentence of subdivision (c) as

applying to civil actions and proceedings as well as to criminal

cases, and on this assumption has left the sentence unamended.

NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277

Under rule 104(c) the hearing on a preliminary matter may at

times be conducted in front of the jury. Should an accused testify

in such a hearing, waiving his privilege against self-incrimination

as to the preliminary issue, rule 104(d) provides that he will not

generally be subject to cross-examination as to any other issue.

This rule is not, however, intended to immunize the accused from

cross-examination where, in testifying about a preliminary issue,

he injects other issues into the hearing. If he could not be

cross-examined about any issues gratuitously raised by him beyond

the scope of the preliminary matters, injustice result.

Accordingly, in order to prevent any such unjust result, the

committee intends the rule to be construed to provide that the

accused may subject himself to cross-examination as to issues

raised by his own testimony upon a preliminary matter before a

jury.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 105 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE I. GENERAL PROVISIONS

-HEAD-

Rule 105. Limited Admissibility

-STATUTE-

When evidence which is admissible as to one party or for one

purpose but not admissible as to another party or for another

purpose is admitted, the court, upon request, shall restrict the

evidence to its proper scope and instruct the jury accordingly.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1930.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

A close relationship exists between this rule and Rule 403 which

requires exclusion when "probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury." The present rule recognizes the

practice of admitting evidence for a limited purpose and

instructing the jury accordingly. The availability and

effectiveness of this practice must be taken into consideration in

reaching a decision whether to exclude for unfair prejudice under

Rule 403. In Bruton v. United States, 389 U.S. 818, 88 S.Ct. 126,

19 L.Ed.2d 70 (1968), the Court ruled that a limiting instruction

did not effectively protect the accused against the prejudicial

effect of admitting in evidence the confession of a codefendant

which implicated him. The decision does not, however, bar the use

of limited admissibility with an instruction where the risk of

prejudice is less serious.

Similar provisions are found in Uniform Rule 6; California

Evidence Code Sec. 355; Kansas Code of Civil Procedure Sec. 60-406;

New Jersey Evidence Rule 6. The wording of the present rule

differs, however, in repelling any implication that limiting or

curative instructions are sufficient in all situations.

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

Rule 106 as submitted by the Supreme Court (now Rule 105 in the

bill) dealt with the subject of evidence which is admissible as to

one party or for one purpose but is not admissible against another

party or for another purpose. The Committee adopted this Rule

without change on the understanding that it does not affect the

authority of a court to order a severance in a multi-defendant

case.

-End-

-CITE-

28 USC APPENDIX Rule 106 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE I. GENERAL PROVISIONS

-HEAD-

Rule 106. Remainder of or Related Writings or Recorded Statements

-STATUTE-

When a writing or recorded statement or part thereof is

introduced by a party, an adverse party may require the

introduction at that time of any other part or any other writing or

recorded statement which ought in fairness to be considered

contemporaneously with it.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1930; Mar. 2, 1987,

eff. Oct. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The rule is an expression of the rule of completeness. McCormick

Sec. 56. It is manifested as to depositions in Rule 32(a)(4) of the

Federal Rules of Civil Procedure, of which the proposed rule is

substantially a restatement.

The rule is based on two considerations. The first is the

misleading impression created by taking matters out of context. The

second is the inadequacy of repair work when delayed to a point

later in the trial. See McCormick Sec. 56; California Evidence Code

Sec. 356. The rule does not in any way circumscribe the right of

the adversary to develop the matter on cross-examination or as part

of his own case.

For practical reasons, the rule is limited to writings and

recorded statements and does not apply to conversations.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX ARTICLE II. JUDICIAL NOTICE 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE II. JUDICIAL NOTICE

-HEAD-

ARTICLE II. JUDICIAL NOTICE

-End-

-CITE-

28 USC APPENDIX Rule 201 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE II. JUDICIAL NOTICE

-HEAD-

Rule 201. Judicial Notice of Adjudicative Facts

-STATUTE-

(a) Scope of rule. - This rule governs only judicial notice of

adjudicative facts.

(b) Kinds of facts. - A judicially noticed fact must be one not

subject to reasonable dispute in that it is either (1) generally

known within the territorial jurisdiction of the trial court or (2)

capable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.

(c) When discretionary. - A court may take judicial notice,

whether requested or not.

(d) When mandatory. - A court shall take judicial notice if

requested by a party and supplied with the necessary information.

(e) Opportunity to be heard. - A party is entitled upon timely

request to an opportunity to be heard as to the propriety of taking

judicial notice and the tenor of the matter noticed. In the absence

of prior notification, the request may be made after judicial

notice has been taken.

(f) Time of taking notice. - Judicial notice may be taken at any

stage of the proceeding.

(g) Instructing jury. - In a civil action or proceeding, the

court shall instruct the jury to accept as conclusive any fact

judicially noticed. In a criminal case, the court shall instruct

the jury that it may, but is not required to, accept as conclusive

any fact judicially noticed.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1930.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Subdivision (a). This is the only evidence rule on the subject of

judicial notice. It deals only with judicial notice of

"adjudicative" facts. No rule deals with judicial notice of

"legislative" facts. Judicial notice of matters of foreign law is

treated in Rule 44.1 of the Federal Rules of Civil Procedure and

Rule 26.1 of the Federal Rules of Criminal Procedure.

The omission of any treatment of legislative facts results from

fundamental differences between adjudicative facts and legislative

facts. Adjudicative facts are simply the facts of the particular

case. Legislative facts, on the other hand, are those which have

relevance to legal reasoning and the lawmaking process, whether in

the formulation of a legal principle or ruling by a judge or court

or in the enactment of a legislative body. The terminology was

coined by Professor Kenneth Davis in his article An Approach to

Problems of Evidence in the Administrative Process, 55 Harv.L.Rev.

364, 404-407 (1942). The following discussion draws extensively

upon his writings. In addition, see the same author's Judicial

Notice, 55 Colum.L. Rev. 945 (1955); Administrative Law Treatise,

ch. 15 (1958); A System of Judicial Notice Based on Fairness and

Convenience, in Perspectives of Law 69 (1964).

The usual method of establishing adjudicative facts in through

the introduction of evidence, ordinarily consisting of the

testimony of witnesses. If particular facts are outside of

reasonable controversy, this process is dispensed with as

unnecessary. A high degree of indisputability is the essential

prerequisite.

Legislative facts are quite different. As Professor Davis says:

"My opinion is that judge-made law would stop growing if judges,

in thinking about questions of law and policy, were forbidden to

take into account the facts they believe, as distinguished from

facts which are 'clearly * * * within the domain of the

indisputable.' Facts most needed in thinking about difficult

problems of law and policy have a way of being outside the domain

of the clearly indisputable." A System of Judicial Notice Based on

Fairness and Convenience, supra, at 82.

An illustration is Hawkins v. United States, 358 U.S. 74, 79 S.Ct.

136, 3 L.Ed.2d 125 (1958), in which the Court refused to discard

the common law rule that one spouse could not testify against the

other, saying, "Adverse testimony given in criminal proceedings

would, we think, be likely to destroy almost any marriage." This

conclusion has a large intermixture of fact, but the factual aspect

is scarcely "indisputable." See Hutchins and Slesinger, Some

Observations on the Law of Evidence - Family Relations, 13

Minn.L.Rev. 675 (1929). If the destructive effect of the giving of

adverse testimony by a spouse is not indisputable, should the Court

have refrained from considering it in the absence of supporting

evidence?

"If the Model Code or the Uniform Rules had been applicable, the

Court would have been barred from thinking about the essential

factual ingredient of the problems before it, and such a result

would be obviously intolerable. What the law needs as its growing

points is more, not less, judicial thinking about the factual

ingredients of problems of what the law ought to be, and the needed

facts are seldom 'clearly' indisputable." Davis, supra, at 83.

"Professor Morgan gave the following description of the

methodology of determining domestic law:

"In determining the content or applicability of a rule of

domestic law, the judge is unrestricted in his investigation and

conclusion. He may reject the propositions of either party or of

both parties. He may consult the sources of pertinent data to which

they refer, or he may refuse to do so. He may make an independent

search for persuasive data or rest content with what he has or what

the parties present. * * * [T]he parties do no more than to assist;

they control no part of the process." Morgan, Judicial Notice, 57

Harv.L.Rev. 269, 270-271 (1944).

This is the view which should govern judicial access to legislative

facts. It renders inappropriate any limitation in the form of

indisputability, any formal requirements of notice other than those

already inherent in affording opportunity to hear and be heard and

exchanging briefs, and any requirement of formal findings at any

level. It should, however, leave open the possibility of

introducing evidence through regular channels in appropriate

situations. See Borden's Farm Products Co. v. Baldwin, 293 U.S.

194, 55 S.Ct. 187, 79 L.Ed. 281 (1934), where the cause was

remanded for the taking of evidence as to the economic conditions

and trade practices underlying the New York Milk Control Law.

Similar considerations govern the judicial use of nonadjudicative

facts in ways other than formulating laws and rules. Thayer

described them as a part of the judicial reasoning process.

"In conducting a process of judicial reasoning, as of other

reasoning, not a step can be taken without assuming something which

has not been proved; and the capacity to do this with competent

judgement and efficiency, is imputed to judges and juries as part

of their necessary mental outfit." Thayer, Preliminary Treatise on

Evidence 279-280 (1898).

As Professor Davis points out, A System of Judicial Notice Based

on Fairness and Convenience, in Perspectives of Law 69, 73 (1964),

every case involves the use of hundreds or thousands of

non-evidence facts. When a witness in an automobile accident case

says "car," everyone, judge and jury included, furnishes, from

non-evidence sources within himself, the supplementing information

that the "car" is an automobile, not a railroad car, that it is

self-propelled, probably by an internal combustion engine, that it

may be assumed to have four wheels with pneumatic rubber tires, and

so on. The judicial process cannot construct every case from

scratch, like Descartes creating a world based on the postulate

Cogito, ergo sum. These items could not possibly be introduced into

evidence, and no one suggests that they be. Nor are they

appropriate subjects for any formalized treatment of judicial

notice of facts. See Levin and Levy, Persuading the Jury with Facts

Not in Evidence: The Fiction-Science Spectrum, 105 U.Pa.L.Rev. 139

(1956).

Another aspect of what Thayer had in mind is the use of

non-evidence facts to appraise or assess the adjudicative facts of

the case. Pairs of cases from two jurisdictions illustrate this use

and also the difference between non-evidence facts thus used and

adjudicative facts. In People v. Strook, 347 Ill. 460, 179 N.E. 821

(1932), venue in Cook County had been held not established by

testimony that the crime was committed at 7956 South Chicago

Avenue, since judicial notice would not be taken that the address

was in Chicago. However, the same court subsequently ruled that

venue in Cook County was established by testimony that a crime

occurred at 8900 South Anthony Avenue, since notice would be taken

of the common practice of omitting the name of the city when

speaking of local addresses, and the witness was testifying in

Chicago. People v. Pride, 16 Ill.2d 82, 156 N.E.2d 551 (1951). And

in Hughes v. Vestal, 264 N.C. 500, 142 S.E.2d 361 (1965), the

Supreme Court of North Carolina disapproved the trial judge's

admission in evidence of a state-published table of automobile

stopping distances on the basis of judicial notice, though the

court itself had referred to the same table in an earlier case in a

"rhetorical and illustrative" way in determining that the defendant

could not have stopped her car in time to avoid striking a child

who suddenly appeared in the highway and that a non-suit was

properly granted. Ennis v. Dupree, 262 N.C. 224, 136 S.E.2d 702

(1964). See also Brown v. Hale, 263 N.C. 176, 139 S.E.2d 210

(1964); Clayton v. Rimmer, 262 N.C. 302, 136 S.E.2d 562 (1964). It

is apparent that this use of non-evidence facts in evaluating the

adjudicative facts of the case is not an appropriate subject for a

formalized judicial notice treatment.

In view of these considerations, the regulation of judicial

notice of facts by the present rule extends only to adjudicative

facts.

What, then, are "adjudicative" facts? Davis refers to them as

those "which relate to the parties," or more fully:

"When a court or an agency finds facts concerning the immediate

parties - who did what, where, when, how, and with what motive or

intent - the court or agency is performing an adjudicative

function, and the facts are conveniently called adjudicative facts.

* * *

"Stated in other terms, the adjudicative facts are those to which

the law is applied in the process of adjudication. They are the

facts that normally go to the jury in a jury case. They relate to

the parties, their activities, their properties, their businesses."

2 Administrative Law Treatise 353.

Subdivision (b). With respect to judicial notice of adjudicative

facts, the tradition has been one of caution in requiring that the

matter be beyond reasonable controversy. This tradition of

circumspection appears to be soundly based, and no reason to depart

from it is apparent. As Professor Davis says:

"The reason we use trial-type procedure, I think, is that we make

the practical judgement, on the basis of experience, that taking

evidence, subject to cross-examination and rebuttal, is the best

way to resolve controversies involving disputes of adjudicative

facts, that is, facts pertaining to the parties. The reason we

require a determination on the record is that we think fair

procedure in resolving disputes of adjudicative facts calls for

giving each party a chance to meet in the appropriate fashion the

facts that come to the tribunal's attention, and the appropriate

fashion for meeting disputed adjudicative facts includes rebuttal

evidence, cross-examination, usually confrontation, and argument

(either written or oral or both). The key to a fair trial is

opportunity to use the appropriate weapons (rebuttal evidence,

cross-examination, and argument) to meet adverse materials that

come to the tribunal's attention." A System of Judicial Notice

Based on Fairness and Convenience, in Perspectives of Law 69, 93

(1964).

The rule proceeds upon the theory that these considerations call

for dispensing with traditional methods of proof only in clear

cases. Compare Professor Davis' conclusion that judicial notice

should be a matter of convenience, subject to requirements of

procedural fairness. Id., 94.

This rule is consistent with Uniform Rule 9(1) and (2) which

limit judicial notice of facts to those "so universally known that

they cannot reasonably be the subject of dispute," those "so

generally known or of such common notoriety within the territorial

jurisdiction of the court that they cannot reasonably be the

subject of dispute," and those "capable of immediate and accurate

determination by resort to easily accessible sources of

indisputable accuracy." The traditional textbook treatment has

included these general categories (matters of common knowledge,

facts capable of verification), McCormick Secs. 324, 325, and then

has passed on into detailed treatment of such specific topics as

facts relating to the personnel and records of the court, Id. Sec.

327, and other governmental facts, Id. Sec. 328. The California

draftsmen, with a background of detailed statutory regulation of

judicial notice, followed a somewhat similar pattern. California

Evidence Code Secs. 451, 452. The Uniform Rules, however, were

drafted on the theory that these particular matters are included

within the general categories and need no specific mention. This

approach is followed in the present rule.

The phrase "propositions of generalized knowledge," found in

Uniform Rule 9(1) and (2) is not included in the present rule. It

was, it is believed, originally included in Model Code Rules 801

and 802 primarily in order to afford some minimum recognition to

the right of the judge in his "legislative" capacity (not acting as

the trier of fact) to take judicial notice of very limited

categories of generalized knowledge. The limitations thus imposed

have been discarded herein as undesirable, unworkable, and contrary

to existing practice. What is left, then, to be considered, is the

status of a "proposition of generalized knowledge" as an

"adjudicative" fact to be noticed judicially and communicated by

the judge to the jury. Thus viewed, it is considered to be lacking

practical significance. While judges use judicial notice of

"propositions of generalized knowledge" in a variety of situations:

determining the validity and meaning of statutes, formulating

common law rules, deciding whether evidence should be admitted,

assessing the sufficiency and effect of evidence, all are

essentially nonadjudicative in nature. When judicial notice is seen

as a significant vehicle for progress in the law, these are the

areas involved, particularly in developing fields of scientific

knowledge. See McCormick 712. It is not believed that judges now

instruct juries as to "propositions of generalized knowledge"

derived from encyclopedias or other sources, or that they are

likely to do so, or, indeed, that it is desirable that they do so.

There is a vast difference between ruling on the basis of judicial

notice that radar evidence of speed is admissible and explaining to

the jury its principles and degree of accuracy, or between using a

table of stopping distances of automobiles at various speeds in a

judicial evaluation of testimony and telling the jury its precise

application in the case. For cases raising doubt as to the

propriety of the use of medical texts by lay triers of fact in

passing on disability claims in administrative proceedings, see

Sayers v. Gardner, 380 F.2d 940 (6th Cir. 1967); Ross v. Gardner,

365 F.2d 554 (6th Cir. 1966); Sosna v. Celebrezze, 234 F.Supp. 289

(E.D.Pa. 1964); Glendenning v. Ribicoff, 213 F.Supp. 301 (W.D.Mo.

1962).

Subdivisions (c) and (d). Under subdivision (c) the judge has a

discretionary authority to take judicial notice, regardless of

whether he is so requested by a party. The taking of judicial

notice is mandatory, under subdivision (d), only when a party

requests it and the necessary information is supplied. This scheme

is believed to reflect existing practice. It is simple and

workable. It avoids troublesome distinctions in the many situations

in which the process of taking judicial notice is not recognized as

such.

Compare Uniform Rule 9 making judicial notice of facts

universally known mandatory without request, and making judicial

notice of facts generally known in the jurisdiction or capable of

determination by resort to accurate sources discretionary in the

absence of request but mandatory if request is made and the

information furnished. But see Uniform Rule 10(3), which directs

the judge to decline to take judicial notice if available

information fails to convince him that the matter falls clearly

within Uniform Rule 9 or is insufficient to enable him to notice it

judicially. Substantially the same approach is found in California

Evidence Code Secs. 451-453 and in New Jersey Evidence Rule 9. In

contrast, the present rule treats alike all adjudicative facts

which are subject to judicial notice.

Subdivision (e). Basic considerations of procedural fairness

demand an opportunity to be heard on the propriety of taking

judicial notice and the tenor of the matter noticed. The rule

requires the granting of that opportunity upon request. No formal

scheme of giving notice is provided. An adversely affected party

may learn in advance that judicial notice is in contemplation,

either by virtue of being served with a copy of a request by

another party under subdivision (d) that judicial notice be taken,

or through an advance indication by the judge. Or he may have no

advance notice at all. The likelihood of the latter is enhanced by

the frequent failure to recognize judicial notice as such. And in

the absence of advance notice, a request made after the fact could

not in fairness be considered untimely. See the provision for

hearing on timely request in the Administrative Procedure Act, 5

U.S.C. Sec. 556(e). See also Revised Model State Administrative

Procedure Act (1961), 9C U.L.A. Sec. 10(4) (Supp. 1967).

Subdivision (f). In accord with the usual view, judicial notice

may be taken at any stage of the proceedings, whether in the trial

court or on appeal. Uniform Rule 12; California Evidence Code Sec.

459; Kansas Rules of Evidence Sec. 60-412; New Jersey Evidence Rule

12; McCormick Sec. 330, p. 712.

Subdivision (g). Much of the controversy about judicial notice

has centered upon the question whether evidence should be admitted

in disproof of facts of which judicial notice is taken.

The writers have been divided. Favoring admissibility are Thayer,

Preliminary Treatise on Evidence 308 (1898); 9 Wigmore Sec. 2567;

Davis, A System of Judicial Notice Based on Fairness and

Convenience, in Perspectives of Law, 69, 76-77 (1964). Opposing

admissibility are Keeffe, Landis and Shaad, Sense and Nonsense

about Judicial Notice, 2 Stan.L.Rev. 664, 668 (1950); McNaughton,

Judicial Notice - Excerpts Relating to the Morgan-Whitmore

Controversy, 14 Vand.L.Rev. 779 (1961); Morgan, Judicial Notice, 57

Harv.L.Rev. 269, 279 (1944); McCormick 710-711. The Model Code and

the Uniform Rules are predicated upon indisputability of judicially

noticed facts.

The proponents of admitting evidence in disproof have

concentrated largely upon legislative facts. Since the present rule

deals only with judicial notice of adjudicative facts, arguments

directed to legislative facts lose their relevancy.

Within its relatively narrow area of adjudicative facts, the rule

contemplates there is to be no evidence before the jury in

disproof. The judge instructs the jury to take judicially noticed

facts as established. This position is justified by the undesirable

effects of the opposite rule in limiting the rebutting party,

though not his opponent, to admissible evidence, in defeating the

reasons for judicial notice, and in affecting the substantive law

to an extent and in ways largely unforeseeable. Ample protection

and flexibility are afforded by the broad provision for opportunity

to be heard on request, set forth in subdivision (e).

Authority upon the propriety of taking judicial notice against an

accused in a criminal case with respect to matters other than venue

is relatively meager. Proceeding upon the theory that the right of

jury trial does not extend to matters which are beyond reasonable

dispute, the rule does not distinguish between criminal and civil

cases. People v. Mayes, 113 Cal. 618, 45 P. 860 (1896); Ross v.

United States, 374 F.2d 97 (8th Cir. 1967). Cf. State v. Main, 94

R.I. 338, 180 A.2d 814 (1962); State v. Lawrence, 120 Utah 323, 234

P.2d 600 (1951).

Note on Judicial Notice of Law. By rules effective July 1, 1966,

the method of invoking the law of a foreign country is covered

elsewhere. Rule 44.1 of the Federal Rules of Civil Procedure; Rule

26.1 of the Federal Rules of Criminal Procedure. These two new

admirably designed rules are founded upon the assumption that the

manner in which law is fed into the judicial process is never a

proper concern of the rules of evidence but rather of the rules of

procedure. The Advisory Committee on Evidence, believing that this

assumption is entirely correct, proposes no evidence rule with

respect to judicial notice of law, and suggests that those matters

of law which, in addition to foreign-country law, have

traditionally been treated as requiring pleading and proof and more

recently as the subject of judicial notice be left to the Rules of

Civil and Criminal Procedure.

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

Rule 201(g) as received from the Supreme Court provided that when

judicial notice of a fact is taken, the court shall instruct the

jury to accept that fact as established. Being of the view that

mandatory instruction to a jury in a criminal case to accept as

conclusive any fact judicially noticed is inappropriate because

contrary to the spirit of the Sixth Amendment right to a jury

trial, the Committee adopted the 1969 Advisory Committee draft of

this subsection, allowing a mandatory instruction in civil actions

and proceedings and a discretionary instruction in criminal cases.

-End-

-CITE-

28 USC APPENDIX ARTICLE III. PRESUMPTIONS IN

CIVIL ACTIONS AND PROCEEDINGS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

-HEAD-

ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

-End-

-CITE-

28 USC APPENDIX Rule 301 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

-HEAD-

Rule 301. Presumptions in General in Civil Actions and Proceedings

-STATUTE-

In all civil actions and proceedings not otherwise provided for

by Act of Congress or by these rules, a presumption imposes on the

party against whom it is directed the burden of going forward with

evidence to rebut or meet the presumption, but does not shift to

such party the burden of proof in the sense of the risk of

nonpersuasion, which remains throughout the trial upon the party on

whom it was originally cast.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1931.)

-MISC1-

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 Sec. 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.

-End-

-CITE-

28 USC APPENDIX Rule 302 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

-HEAD-

Rule 302. Applicability of State Law in Civil Actions and

Proceedings

-STATUTE-

In civil actions and proceedings, the effect of a presumption

respecting a fact which is an element of a claim or defense as to

which State law supplies the rule of decision is determined in

accordance with State law.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1931.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

A series of Supreme Court decisions in diversity cases leaves no

doubt of the relevance of Erie Railroad Co. v. Tompkins, 304 U.S.

64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), to questions of burden of

proof. These decisions are Cities Service Oil Co. v. Dunlap, 308

U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196 (1939), Palmer v. Hoffman, 318

U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943), and Dick v. New York

Life Ins. Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959).

They involved burden of proof, respectively, as to status as bona

fide purchasers, contributory negligence, and non-accidental death

(suicide) of an insured. In each instance the state rule was held

to be applicable. It does not follow, however, that all

presumptions in diversity cases are governed by state law. In each

case cited, the burden of proof question had to do with a

substantive element of the claim or defense. Application of the

state law is called for only when the presumption operates upon

such an element. Accordingly the rule does not apply state law when

the presumption operates upon a lesser aspect of the case, i.e.

"tactical" presumptions.

The situations in which the state law is applied have been tagged

for convenience in the preceding discussion as "diversity cases."

The designation is not a completely accurate one since Erie applies

to any claim or issue having its source in state law, regardless of

the basis of federal jurisdiction, and does not apply to a federal

claim or issue, even though jurisdiction is based on diversity.

Vestal, Erie R.R. v. Tompkins: A Projection, 48 Iowa L.Rev. 248,

257 (1963); Hart and Wechsler, The Federal Courts and the Federal

System, 697 (1953); 1A Moore, Federal Practice &#182; 0.305[3] (2d

ed. 1965); Wright, Federal Courts, 217-218 (1963). Hence the rule

employs, as appropriately descriptive, the phrase "as to which

state law supplies the rule of decision." See A.L.I. Study of the

Division of Jurisdiction Between State and Federal Courts, Sec.

2344(c), p. 40, P.F.D. No. 1 (1965).

-End-

-CITE-

28 USC APPENDIX ARTICLE IV. RELEVANCY AND ITS

LIMITS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

ARTICLE IV. RELEVANCY AND ITS LIMITS

-End-

-CITE-

28 USC APPENDIX Rule 401 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

Rule 401. Definition of "Relevant Evidence"

-STATUTE-

"Relevant evidence" means evidence having any tendency to make

the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would be without the evidence.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1931.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Problems of relevancy call for an answer to the question whether

an item of evidence, when tested by the processes of legal

reasoning, possesses sufficient probative value to justify

receiving it in evidence. Thus, assessment of the probative value

of evidence that a person purchased a revolver shortly prior to a

fatal shooting with which he is charged is a matter of analysis and

reasoning.

The variety of relevancy problems is coextensive with the

ingenuity of counsel in using circumstantial evidence as a means of

proof. An enormous number of cases fall in no set pattern, and this

rule is designed as a guide for handling them. On the other hand,

some situations recur with sufficient frequency to create patterns

susceptible of treatment by specific rules. Rule 404 and those

following it are of that variety; they also serve as illustrations

of the application of the present rule as limited by the

exclusionary principles of Rule 403.

Passing mention should be made of so-called "conditional"

relevancy. Morgan, Basic Problems of Evidence 45-46 (1962). In this

situation, probative value depends not only upon satisfying the

basic requirement of relevancy as described above but also upon the

existence of some matter of fact. For example, if evidence of a

spoken statement is relied upon to prove notice, probative value is

lacking unless the person sought to be charged heard the statement.

The problem is one of fact, and the only rules needed are for the

purpose of determining the respective functions of judge and jury.

See Rules 104(b) and 901. The discussion which follows in the

present note is concerned with relevancy generally, not with any

particular problem of conditional relevancy.

Relevancy is not an inherent characteristic of any item of

evidence but exists only as a relation between an item of evidence

and a matter properly provable in the case. Does the item of

evidence tend to prove the matter sought to be proved? Whether the

relationship exists depends upon principles evolved by experience

or science, applied logically to the situation at hand. James,

Relevancy, Probability and the Law, 29 Calif.L.Rev. 689, 696, n. 15

(1941), in Selected Writings on Evidence and Trial 610, 615, n. 15

(Fryer ed. 1957). The rule summarizes this relationship as a

"tendency to make the existence" of the fact to be proved "more

probable or less probable." Compare Uniform Rule 1(2) which states

the crux of relevancy as "a tendency in reason," thus perhaps

emphasizing unduly the logical process and ignoring the need to

draw upon experience or science to validate the general principle

upon which relevancy in a particular situation depends.

The standard of probability under the rule is "more * * *

probable than it would be without the evidence." Any more stringent

requirement is unworkable and unrealistic. As McCormick Sec. 152,

p. 317, says, "A brick is not a wall," or, as Falknor, Extrinsic

Policies Affecting Admissibility, 10 Rutgers L.Rev. 574, 576

(1956), quotes Professor McBaine, "* * * [I]t is not to be supposed

that every witness can make a home run." Dealing with probability

in the language of the rule has the added virtue of avoiding

confusion between questions of admissibility and questions of the

sufficiency of the evidence.

The rule uses the phrase "fact that is of consequence to the

determination of the action" to describe the kind of fact to which

proof may properly be directed. The language is that of California

Evidence Code Sec. 210; it has the advantage of avoiding the

loosely used and ambiguous word "material." Tentative

Recommendation and a Study Relating to the Uniform Rules of

Evidence (Art. I. General Provisions), Cal. Law Revision Comm'n,

Rep., Rec. & Studies, 10-11 (1964). The fact to be proved may be

ultimate, intermediate, or evidentiary; it matters not, so long as

it is of consequence in the determination of the action. Cf.

Uniform Rule 1(2) which requires that the evidence relate to a

"material" fact.

The fact to which the evidence is directed need not be in

dispute. While situations will arise which call for the exclusion

of evidence offered to prove a point conceded by the opponent, the

ruling should be made on the basis of such considerations as waste

of time and undue prejudice (see Rule 403), rather than under any

general requirement that evidence is admissible only if directed to

matters in dispute. Evidence which is essentially background in

nature can scarcely be said to involve disputed matter, yet it is

universally offered and admitted as an aid to understanding.

Charts, photographs, views of real estate, murder weapons, and many

other items of evidence fall in this category. A rule limiting

admissibility to evidence directed to a controversial point would

invite the exclusion of this helpful evidence, or at least the

raising of endless questions over its admission. Cf. California

Evidence Code Sec. 210, defining relevant evidence in terms of

tendency to prove a disputed fact.

-End-

-CITE-

28 USC APPENDIX Rule 402 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

Rule 402. Relevant Evidence Generally Admissible; Irrelevant

Evidence Inadmissible

-STATUTE-

All relevant evidence is admissible, except as otherwise provided

by the Constitution of the United States, by Act of Congress, by

these rules, or by other rules prescribed by the Supreme Court

pursuant to statutory authority. Evidence which is not relevant is

not admissible.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1931.)

-MISC1-

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 Secs. 350, 351. Provisions that all

relevant evidence is admissible are found in Uniform Rule 7(f);

Kansas Code of Civil Procedure Sec. 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. Sec.

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. Sec. 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. Sec. 3693, replacement

certificate of honorable discharge from Army not admissible in

evidence; 10 U.S.C. Sec. 8693, same as to Air Force; 11 U.S.C. Sec.

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. Sec. 205(a),

railroad reorganization petition, if dismissed, not admissible in

evidence; 11 U.S.C. Sec. 403(a), list of creditors filed with

municipal composition plan not an admission; 13 U.S.C. Sec. 9(a),

census information confidential, retained copies of reports

privileged; 47 U.S.C. Sec. 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.

-End-

-CITE-

28 USC APPENDIX Rule 403 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice,

Confusion, or Waste of Time

-STATUTE-

Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1932.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The case law recognizes that certain circumstances call for the

exclusion of evidence which is of unquestioned relevance. These

circumstances entail risks which range all the way from inducing

decision on a purely emotional basis, at one extreme, to nothing

more harmful than merely wasting time, at the other extreme.

Situations in this area call for balancing the probative value of

and need for the evidence against the harm likely to result from

its admission. Slough, Relevancy Unraveled, 5 Kan. L. Rev. 1, 12-15

(1956); Trautman, Logical or Legal Relevancy - A Conflict in

Theory, 5 Van. L. Rev. 385, 392 (1952); McCormick Sec. 152, pp.

319-321. The rules which follow in this Article are concrete

applications evolved for particular situations. However, they

reflect the policies underlying the present rule, which is designed

as a guide for the handling of situations for which no specific

rules have been formulated.

Exclusion for risk of unfair prejudice, confusion of issues,

misleading the jury, or waste of time, all find ample support in

the authorities. "Unfair prejudice" within its context means an

undue tendency to suggest decision on an improper basis, commonly,

though not necessarily, an emotional one.

The rule does not enumerate surprise as a ground for exclusion,

in this respect following Wigmore's view of the common law. 6

Wigmore Sec. 1849. Cf. McCormick Sec. 152, p. 320, n. 29, listing

unfair surprise as a ground for exclusion but stating that it is

usually "coupled with the danger of prejudice and confusion of

issues." While Uniform Rule 45 incorporates surprise as a ground

and is followed in Kansas Code of Civil Procedure Sec. 60-445,

surprise is not included in California Evidence Code Sec. 352 or

New Jersey Rule 4, though both the latter otherwise substantially

embody Uniform Rule 45. While it can scarcely be doubted that

claims of unfair surprise may still be justified despite procedural

requirements of notice and instrumentalities of discovery, the

granting of a continuance is a more appropriate remedy than

exclusion of the evidence. Tentative Recommendation and a Study

Relating to the Uniform Rules of Evidence (Art. VI. Extrinsic

Policies Affecting Admissibility), Cal. Law Revision Comm'n, Rep.,

Rec. & Studies, 612 (1964). Moreover, the impact of a rule

excluding evidence on the ground of surprise would be difficult to

estimate.

In reaching a decision whether to exclude on grounds of unfair

prejudice, consideration should be given to the probable

effectiveness or lack of effectiveness of a limiting instruction.

See Rule 106 [now 105] and Advisory Committee's Note thereunder.

The availability of other means of proof may also be an appropriate

factor.

-End-

-CITE-

28 USC APPENDIX Rule 404 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

Rule 404. Character Evidence Not Admissible To Prove Conduct;

Exceptions; Other Crimes

-STATUTE-

(a) Character evidence generally. - Evidence of a person's

character or a trait of character is not admissible for the purpose

of proving action in conformity therewith on a particular occasion,

except:

(1) Character of accused. - Evidence of a pertinent trait of

character offered by an accused, or by the prosecution to rebut

the same, or if evidence of a trait of character of the alleged

victim of the crime is offered by an accused and admitted under

Rule 404(a)(2), evidence of the same trait of character of the

accused offered by the prosecution;

(2) Character of alleged victim. - Evidence of a pertinent

trait of character of the alleged victim of the crime offered by

an accused, or by the prosecution to rebut the same, or evidence

of a character trait of peacefulness of the alleged victim

offered by the prosecution in a homicide case to rebut evidence

that the alleged victim was the first aggressor;

(3) Character of witness. - Evidence of the character of a

witness, as provided in rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts. - Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith. It may,

however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident, provided that upon request by the

accused, the prosecution in a criminal case shall provide

reasonable notice in advance of trial, or during trial if the court

excuses pretrial notice on good cause shown, of the general nature

of any such evidence it intends to introduce at trial.

-SOURCE-

(Pub. L. 93-595, Sec. 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.)

-MISC1-

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 Secs.

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 Sec. 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 Sec. 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 Sec.

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 Sec. 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. Sec. 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.

-End-

-CITE-

28 USC APPENDIX Rule 405 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

Rule 405. Methods of Proving Character

-STATUTE-

(a) Reputation or opinion. - In all cases in which evidence of

character or a trait of character of a person is admissible, proof

may be made by testimony as to reputation or by testimony in the

form of an opinion. On cross-examination, inquiry is allowable into

relevant specific instances of conduct.

(b) Specific instances of conduct. - In cases in which character

or a trait of character of a person is an essential element of a

charge, claim, or defense, proof may also be made of specific

instances of that person's conduct.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1932; Mar. 2, 1987,

eff. Oct. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The rule deals only with allowable methods of proving character,

not with the admissibility of character evidence, which is covered

in Rule 404.

Of the three methods of proving character provided by the rule,

evidence of specific instances of conduct is the most convincing.

At the same time it possesses the greatest capacity to arouse

prejudice, to confuse, to surprise, and to consume time.

Consequently the rule confines the use of evidence of this kind to

cases in which character is, in the strict sense, in issue and

hence deserving of a searching inquiry. When character is used

circumstantially and hence occupies a lesser status in the case,

proof may be only by reputation and opinion. These latter methods

are also available when character is in issue. This treatment is,

with respect to specific instances of conduct and reputation,

conventional contemporary common law doctrine. McCormick Sec. 153.

In recognizing opinion as a means of proving character, the rule

departs from usual contemporary practice in favor of that of an

earlier day. See 7 Wigmore Sec. 1986, pointing out that the earlier

practice permitted opinion and arguing strongly for evidence based

on personal knowledge and belief as contrasted with "the

secondhand, irresponsible product of multiplied guesses and gossip

which we term 'reputation'." It seems likely that the persistence

of reputation evidence is due to its largely being opinion in

disguise. Traditionally character has been regarded primarily in

moral overtones of good and bad: chaste, peaceable, truthful,

honest. Nevertheless, on occasion nonmoral considerations crop up,

as in the case of the incompetent driver, and this seems bound to

happen increasingly. If character is defined as the kind of person

one is, then account must be taken of varying ways of arriving at

the estimate. These may range from the opinion of the employer who

has found the man honest to the opinion of the psychiatrist based

upon examination and testing. No effective dividing line exists

between character and mental capacity, and the latter traditionally

has been provable by opinion.

According to the great majority of cases, on cross-examination

inquiry is allowable as to whether the reputation witness has heard

of particular instances of conduct pertinent to the trait in

question. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213,

93 L.Ed. 168 (1948); Annot., 47 A.L.R.2d 1258. The theory is that,

since the reputation witness relates what he has heard, the inquiry

tends to shed light on the accuracy of his hearing and reporting.

Accordingly, the opinion witness would be asked whether he knew, as

well as whether he had heard. The fact is, of course, that these

distinctions are of slight if any practical significance, and the

second sentence of subdivision (a) eliminates them as a factor in

formulating questions. This recognition of the propriety of

inquiring into specific instances of conduct does not circumscribe

inquiry otherwise into the bases of opinion and reputation

testimony.

The express allowance of inquiry into specific instances of

conduct on cross-examination in subdivision (a) and the express

allowance of it as part of a case in chief when character is

actually in issue in subdivision (b) contemplate that testimony of

specific instances is not generally permissible on the direct

examination of an ordinary opinion witness to character. Similarly

as to witnesses to the character of witnesses under Rule 608(b).

Opinion testimony on direct in these situations ought in general to

correspond to reputation testimony as now given, i.e., be confined

to the nature and extent of observation and acquaintance upon which

the opinion is based. See Rule 701.

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

Rule 405(a) as submitted proposed to change existing law by

allowing evidence of character in the form of opinion as well as

reputation testimony. Fearing, among other reasons, that wholesale

allowance of opinion testimony might tend to turn a trial into a

swearing contest between conflicting character witnesses, the

Committee decided to delete from this Rule, as well as from Rule

608(a) which involves a related problem, reference to opinion

testimony.

NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597

The Senate makes two language changes in the nature of conforming

amendments. The Conference adopts the Senate amendments.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 406 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

Rule 406. Habit; Routine Practice

-STATUTE-

Evidence of the habit of a person or of the routine practice of

an organization, whether corroborated or not and regardless of the

presence of eyewitnesses, is relevant to prove that the conduct of

the person or organization on a particular occasion was in

conformity with the habit or routine practice.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1932.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

An oft-quoted paragraph, McCormick, Sec. 162, p. 340, describes

habit in terms effectively contrasting it with character:

"Character and habit are close akin. Character is a generalized

description of one's disposition, or of one's disposition in

respect to a general trait, such as honesty, temperance, or

peacefulness. 'Habit,' in modern usage, both lay and psychological,

is more specific. It describes one's regular response to a repeated

specific situation. If we speak of character for care, we think of

the person's tendency to act prudently in all the varying

situations of life, in business, family life, in handling

automobiles and in walking across the street. A habit, on the other

hand, is the person's regular practice of meeting a particular kind

of situation with a specific type of conduct, such as the habit of

going down a particular stairway two stairs at a time, or of giving

the hand-signal for a left turn, or of alighting from railway cars

while they are moving. The doing of the habitual acts may become

semi-automatic." Equivalent behavior on the part of a group is

designated "routine practice of an organization" in the rule.

Agreement is general that habit evidence is highly persuasive as

proof of conduct on a particular occasion. Again quoting McCormick

Sec. 162, p. 341:

"Character may be thought of as the sum of one's habits though

doubtless it is more than this. But unquestionably the uniformity

of one's response to habit is far greater than the consistency with

which one's conduct conforms to character or disposition. Even

though character comes in only exceptionally as evidence of an act,

surely any sensible man in investigating whether X did a particular

act would be greatly helped in his inquiry by evidence as to

whether he was in the habit of doing it."

When disagreement has appeared, its focus has been upon the

question what constitutes habit, and the reason for this is readily

apparent. The extent to which instances must be multiplied and

consistency of behavior maintained in order to rise to the status

of habit inevitably gives rise to differences of opinion. Lewan,

Rationale of Habit Evidence, 16 Syracuse L.Rev. 39, 49 (1964).

While adequacy of sampling and uniformity of response are key

factors, precise standards for measuring their sufficiency for

evidence purposes cannot be formulated.

The rule is consistent with prevailing views. Much evidence is

excluded simply because of failure to achieve the status of habit.

Thus, evidence of intemperate "habits" is generally excluded when

offered as proof of drunkenness in accident cases, Annot., 46

A.L.R.2d 103, and evidence of other assaults is inadmissible to

prove the instant one in a civil assault action, Annot., 66

A.L.R.2d 806. In Levin v. United States, 119 U.S.App.D.C. 156, 338

F.2d 265 (1964), testimony as to the religious "habits" of the

accused, offered as tending to prove that he was at home observing

the Sabbath rather than out obtaining money through larceny by

trick, was held properly excluded;

"It seems apparent to us that an individual's religious practices

would not be the type of activities which would lend themselves to

the characterization of 'invariable regularity.' [1 Wigmore 520.]

Certainly the very volitional basis of the activity raises serious

questions as to its invariable nature, and hence its probative

value." Id. at 272.

These rulings are not inconsistent with the trend towards admitting

evidence of business transactions between one of the parties and a

third person as tending to prove that he made the same bargain or

proposal in the litigated situation. Slough, Relevancy Unraveled, 6

Kan.L.Rev. 38-41 (1957). Nor are they inconsistent with such cases

as Whittemore v. Lockheed Aircraft Corp., 65 Cal.App.2d 737, 151

P.2d 670 (1944), upholding the admission of evidence that

plaintiff's intestate had on four other occasions flown planes from

defendant's factory for delivery to his employer airline, offered

to prove that he was piloting rather than a guest on a plane which

crashed and killed all on board while en route for delivery.

A considerable body of authority has required that evidence of

the routine practice of an organization be corroborated as a

condition precedent to its admission in evidence. Slough, Relevancy

Unraveled, 5 Kan.L.Rev. 404, 449 (1957). This requirement is

specifically rejected by the rule on the ground that it relates to

the sufficiency of the evidence rather than admissibility. A

similar position is taken in New Jersey Rule 49. The rule also

rejects the requirement of the absence of eyewitnesses, sometimes

encountered with respect to admitting habit evidence to prove

freedom from contributory negligence in wrongful death cases. For

comment critical of the requirements see Frank, J., in Cereste v.

New York, N.H. & H.R. Co., 231 F.2d 50 (2d Cir. 1956), cert. denied

351 U.S. 951, 76 S.Ct. 848, 100 L.Ed 1475, 10 Vand.L.Rev. 447

(1957); McCormick Sec. 162, p. 342. The omission of the requirement

from the California Evidence Code is said to have effected its

elimination. Comment, Cal.Ev.Code Sec. 1105.

-End-

-CITE-

28 USC APPENDIX Rule 407 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

Rule 407. Subsequent Remedial Measures

-STATUTE-

When, after an injury or harm allegedly caused by an event,

measures are taken that, if taken previously, would have made the

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, a defect in a product's design, or a need for

a warning or instruction. This rule does not require the exclusion

of evidence of subsequent measures when offered for another

purpose, such as proving ownership, control, or feasibility of

precautionary measures, if controverted, or impeachment.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1932; Apr. 11,

1997, eff. Dec. 1, 1997.)

-MISC1-

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 Sec. 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 Sec. 1151; Kansas Code of Civil Procedure Sec. 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.

-End-

-CITE-

28 USC APPENDIX Rule 408 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

Rule 408. Compromise and Offers to Compromise

-STATUTE-

Evidence of (1) furnishing or offering or promising to furnish,

or (2) accepting or offering or promising to accept, a valuable

consideration in compromising or attempting to compromise a claim

which was disputed as to either validity or amount, is not

admissible to prove liability for or invalidity of the claim or its

amount. Evidence of conduct or statements made in compromise

negotiations is likewise not admissible. This rule does not require

the exclusion of any evidence otherwise discoverable merely because

it is presented in the course of compromise negotiations. This rule

also does not require exclusion when the evidence is offered for

another purpose, such as proving bias or prejudice of a witness,

negativing a contention of undue delay, or proving an effort to

obstruct a criminal investigation or prosecution.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1933.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

As a matter of general agreement, evidence of an offer-to

compromise a claim is not receivable in evidence as an admission

of, as the case may be, the validity or invalidity of the claim. As

with evidence of subsequent remedial measures, dealt with in Rule

407, exclusion may be based on two grounds. (1) The evidence is

irrelevant, since the offer may be motivated by a desire for peace

rather than from any concession of weakness of position. The

validity of this position will vary as the amount of the offer

varies in relation to the size of the claim and may also be

influenced by other circumstances. (2) a more consistently

impressive ground is promotion of the public policy favoring the

compromise and settlement of disputes. McCormick Secs. 76, 251.

While the rule is ordinarily phrased in terms of offers of

compromise, it is apparent that a similar attitude must be taken

with respect to completed compromises when offered against a party

thereto. This latter situation will not, of course, ordinarily

occur except when a party to the present litigation has compromised

with a third person.

The same policy underlies the provision of Rule 68 of the Federal

Rules of Civil Procedure that evidence of an unaccepted offer of

judgment is not admissible except in a proceeding to determine

costs.

The practical value of the common law rule has been greatly

diminished by its inapplicability to admissions of fact, even

though made in the course of compromise negotiations, unless

hypothetical, stated to be "without prejudice," or so connected

with the offer as to be inseparable from it. McCormick Sec. 251,

pp. 540-541. An inevitable effect is to inhibit freedom of

communication with respect to compromise, even among lawyers.

Another effect is the generation of controversy over whether a

given statement falls within or without the protected area. These

considerations account for the expansion of the rule herewith to

include evidence of conduct or statements made in compromise

negotiations, as well as the offer or completed compromise itself.

For similar provisions see California Evidence Code Secs. 1152,

1154.

The policy considerations which underlie the rule do not come

into play when the effort is to induce a creditor to settle an

admittedly due amount for a lessor sum. McCormick Sec. 251, p. 540.

Hence the rule requires that the claim be disputed as to either

validity or amount.

The final sentence of the rule serves to point out some

limitations upon its applicability. Since the rule excludes only

when the purpose is proving the validity or invalidity of the claim

or its amount, an offer for another purpose is not within the rule.

The illustrative situations mentioned in the rule are supported by

the authorities. As to proving bias or prejudice of a witness, see

Annot., 161 A.L.R. 395, contra, Fenberg v. Rosenthal, 348 Ill. App.

510, 109 N.E.2d 402 (1952), and negativing a contention of lack of

due diligence in presenting a claim, 4 Wigmore Sec. 1061. An effort

to "buy off" the prosecution or a prosecuting witness in a criminal

case is not within the policy of the rule of exclusion. McCormick

Sec. 251, p. 542.

For other rules of similar import, see Uniform Rules 52 and 53;

California Evidence Code Sec. 1152, 1154; Kansas Code of Civil

Procedure Secs. 60-452, 60-453; New Jersey Evidence Rules 52 and

53.

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

Under existing federal law evidence of conduct and statements

made in compromise negotiations is admissible in subsequent

litigation between the parties. The second sentence of Rule 408 as

submitted by the Supreme Court proposed to reverse that doctrine in

the interest of further promoting non-judicial settlement of

disputes. Some agencies of government expressed the view that the

Court formulation was likely to impede rather than assist efforts

to achieve settlement of disputes. For one thing, it is not always

easy to tell when compromise negotiations begin, and informal

dealings end. Also, parties dealing with government agencies would

be reluctant to furnish factual information at preliminary

meetings; they would wait until "compromise negotiations" began and

thus hopefully effect an immunity for themselves with respect to

the evidence supplied. In light of these considerations, the

Committee recast the Rule so that admissions of liability or

opinions given during compromise negotiations continue

inadmissible, but evidence of unqualified factual assertions is

admissible. The latter aspect of the Rule is drafted, however, so

as to preserve other possible objections to the introduction of

such evidence. The Committee intends no modification of current law

whereby a party may protect himself from future use of his

statements by couching them in hypothetical conditional form.

NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277

This rule as reported makes evidence of settlement or attempted

settlement of a disputed claim inadmissible when offered as an

admission of liability or the amount of liability. The purpose of

this rule is to encourage settlements which would be discouraged if

such evidence were admissible.

Under present law, in most jurisdictions, statements of fact made

during settlement negotiations, however, are excepted from this ban

and are admissible. The only escape from admissibility of

statements of fact made in a settlement negotiation is if the

declarant or his representative expressly states that the statement

is hypothetical in nature or is made without prejudice. Rule 408 as

submitted by the Court reversed the traditional rule. It would have

brought statements of fact within the ban and made them, as well as

an offer of settlement, inadmissible.

The House amended the rule and would continue to make evidence of

facts disclosed during compromise negotiations admissible. It thus

reverted to the traditional rule. The House committee report states

that the committee intends to preserve current law under which a

party may protect himself by couching his statements in

hypothetical form [See House Report No. 93-650 above]. The real

impact of this amendment, however, is to deprive the rule of much

of its salutary effect. The exception for factual admissions was

believed by the Advisory Committee to hamper free communication

between parties and thus to constitute an unjustifiable restraint

upon efforts to negotiate settlements - the encouragement of which

is the purpose of the rule. Further, by protecting hypothetically

phrased statements, it constituted a preference for the

sophisticated, and a trap for the unwary.

Three States which had adopted rules of evidence patterned after

the proposed rules prescribed by the Supreme Court opted for

versions of rule 408 identical with the Supreme Court draft with

respect to the inadmissibility of conduct or statements made in

compromise negotiations. [Nev. Rev. Stats. Sec. 48.105; N. Mex.

Stats. Anno. (1973 Supp.) Sec. 20-4-408; West's Wis. Stats. Anno.

(1973 Supp.) Sec. 904.08].

For these reasons, the committee has deleted the House amendment

and restored the rule to the version submitted by the Supreme Court

with one additional amendment. This amendment adds a sentence to

insure that evidence, such as documents, is not rendered

inadmissible merely because it is presented in the course of

compromise negotiations if the evidence is otherwise discoverable.

A party should not be able to immunize from admissibility documents

otherwise discoverable merely by offering them in a compromise

negotiation.

NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597

The House bill provides that evidence of admissions of liability

or opinions given during compromise negotiations is not admissible,

but that evidence of facts disclosed during compromise negotiations

is not inadmissible by virtue of having been first disclosed in the

compromise negotiations. The Senate amendment provides that

evidence of conduct or statements made in compromise negotiations

is not admissible. The Senate amendment also provides that the rule

does not require the exclusion of any evidence otherwise

discoverable merely because it is presented in the course of

compromise negotiations.

The House bill was drafted to meet the objection of executive

agencies that under the rule as proposed by the Supreme Court, a

party could present a fact during compromise negotiations and

thereby prevent an opposing party from offering evidence of that

fact at trial even though such evidence was obtained from

independent sources. The Senate amendment expressly precludes this

result.

The Conference adopts the Senate amendment.

-End-

-CITE-

28 USC APPENDIX Rule 409 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

Rule 409. Payment of Medical and Similar Expenses

-STATUTE-

Evidence of furnishing or offering or promising to pay medical,

hospital, or similar expenses occasioned by an injury is not

admissible to prove liability for the injury.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1933.)

-MISC1-

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 Sec. 1152; Kansas Code of Civil Procedure Sec. 60-452; New

Jersey Evidence Rule 52.

-End-

-CITE-

28 USC APPENDIX Rule 410 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related

Statements

-STATUTE-

Except as otherwise provided in this rule, evidence of the

following is not, in any civil or criminal proceeding, admissible

against the defendant who made the plea or was a participant in the

plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under

Rule 11 of the Federal Rules of Criminal Procedure or comparable

state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with

an attorney for the prosecuting authority which do not result in

a plea of guilty or which result in a plea of guilty later

withdrawn.

However, such a statement is admissible (i) in any proceeding

wherein another statement made in the course of the same plea or

plea discussions has been introduced and the statement ought in

fairness be considered contemporaneously with it, or (ii) in a

criminal proceeding for perjury or false statement if the statement

was made by the defendant under oath, on the record and in the

presence of counsel.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1933; Pub. L.

94-149, Sec. 1(9), Dec. 12, 1975, 89 Stat. 805; Apr. 30, 1979, eff.

Dec. 1, 1980.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Withdrawn pleas of guilty were held inadmissible in federal

prosecutions in Kercheval v. United States, 274 U.S. 220, 47 S.Ct.

582, 71 L.Ed. 1009 (1927). The Court pointed out that to admit the

withdrawn plea would effectively set at naught the allowance of

withdrawal and place the accused in a dilemma utterly inconsistent

with the decision to award him a trial. The New York Court of

Appeals, in People v. Spitaleri, 9 N.Y.2d 168, 212 N.Y.S.2d 53, 173

N.E.2d 35 (1961), reexamined and overturned its earlier decisions

which had allowed admission. In addition to the reasons set forth

in Kercheval, which was quoted at length, the court pointed out

that the effect of admitting the plea was to compel defendant to

take the stand by way of explanation and to open the way for the

prosecution to call the lawyer who had represented him at the time

of entering the plea. State court decisions for and against

admissibility are collected in Annot., 86 A.L.R.2d 326.

Pleas of nolo contendere are recognized by Rule 11 of the Rules

of Criminal Procedure, although the law of numerous States is to

the contrary. The present rule gives effect to the principal

traditional characteristic of the nolo plea, i.e., avoiding the

admission of guilt which is inherent in pleas of guilty. This

position is consistent with the construction of Section 5 of the

Clayton Act, 15 U.S.C. Sec. 16(a), recognizing the inconclusive and

compromise nature of judgments based on nolo pleas. General

Electric Co. v. City of San Antonio, 334 F.2d 480 (5th Cir. 1964);

Commonwealth Edison Co. v. Allis-Chalmers Mfg. Co., 323 F.2d 412

(7th Cir. 1963), cert. denied 376 U.S. 939, 84 S.Ct. 794, 11

L.Ed.2d 659; Armco Steel Corp. v. North Dakota, 376 F.2d 206 (8th

Cir. 1967); City of Burbank v. General Electric Co., 329 F.2d 825

(9th Cir. 1964). See also state court decisions in Annot., 18

A.L.R.2d 1287, 1314.

Exclusion of offers to plead guilty or nolo has as its purpose

the promotion of disposition of criminal cases by compromise. As

pointed out in McCormick Sec. 251, p. 543

"Effective criminal law administration in many localities would

hardly be possible if a large proportion of the charges were not

disposed of by such compromises."

See also People v. Hamilton, 60 Cal.2d 105, 32 Cal.Rptr. 4, 383

P.2d 412 (1963), discussing legislation designed to achieve this

result. As with compromise offers generally, Rule 408, free

communication is needed, and security against having an offer of

compromise or related statement admitted in evidence effectively

encourages it.

Limiting the exclusionary rule to use against the accused is

consistent with the purpose of the rule, since the possibility of

use for or against other persons will not impair the effectiveness

of withdrawing pleas or the freedom of discussion which the rule is

designed to foster. See A.B.A. Standards Relating to Pleas of

Guilty Sec. 2.2 (1968). See also the narrower provisions of New

Jersey Evidence Rule 52(2) and the unlimited exclusion provided in

California Evidence Code Sec. 1153.

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

The Committee added the phrase "Except as otherwise provided by

Act of Congress" to Rule 410 as submitted by the Court in order to

preserve particular congressional policy judgments as to the effect

of a plea of guilty or of nolo contendere. See 15 U.S.C. 16(a). The

Committee intends that its amendment refers to both present

statutes and statutes subsequently enacted.

NOTES OF THE COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277

As adopted by the House, rule 410 would make inadmissible pleas

of guilty or nolo contendere subsequently withdrawn as well as

offers to make such pleas. Such a rule is clearly justified as a

means of encouraging pleading. However, the House rule would then

go on to render inadmissible for any purpose statements made in

connection with these pleas or offers as well.

The committee finds this aspect of the House rule unjustified. Of

course, in certain circumstances such statements should be

excluded. If, for example, a plea is vitiated because of coercion,

statements made in connection with the plea may also have been

coerced and should be inadmissible on that basis. In other cases,

however, voluntary statements of an accused made in court on the

record, in connection with a plea, and determined by a court to be

reliable should be admissible even though the plea is subsequently

withdrawn. This is particularly true in those cases where, if the

House rule were in effect, a defendant would be able to contradict

his previous statements and thereby lie with impunity [See Harris

v. New York, 401 U.S. 222 (1971)]. To prevent such an injustice,

the rule has been modified to permit the use of such statements for

the limited purposes of impeachment and in subsequent perjury or

false statement prosecutions.

NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597

The House bill provides that evidence of a guilty or nolo

contendere plea, of an offer of either plea, or of statements made

in connection with such pleas or offers of such pleas, is

inadmissible in any civil or criminal action, case or proceeding

against the person making such plea or offer. The Senate amendment

makes the rule inapplicable to a voluntary and reliable statement

made in court on the record where the statement is offered in a

subsequent prosecution of the declarant for perjury or false

statement.

The issues raised by Rule 410 are also raised by proposed Rule

11(e)(6) of the Federal Rules of Criminal Procedure presently

pending before Congress. This proposed rule, which deals with the

admissibility of pleas of guilty or nolo contendere, offers to make

such pleas, and statements made in connection with such pleas, was

promulgated by the Supreme Court on April 22, 1974, and in the

absence of congressional action will become effective on August 1,

1975. The conferees intend to make no change in the

presently-existing case law until that date, leaving the courts

free to develop rules in this area on a case-by-case basis.

The Conferees further determined that the issues presented by the

use of guilty and nolo contendere pleas, offers of such pleas, and

statements made in connection with such pleas or offers, can be

explored in greater detail during Congressional consideration of

Rule 11(e)(6) of the Federal Rules of Criminal Procedure. The

Conferees believe, therefore, that it is best to defer its

effective date until August 1, 1975. The Conferees intend that Rule

410 would be superseded by any subsequent Federal Rule of Criminal

Procedure or Act of Congress with which it is inconsistent, if the

Federal Rule of Criminal Procedure or Act of Congress takes effect

or becomes law after the date of the enactment of the act

establishing the rules of evidence.

The conference adopts the Senate amendment with an amendment that

expresses the above intentions.

NOTES OF ADVISORY COMMITTEE ON RULES - 1979 AMENDMENT

Present rule 410 conforms to rule 11(e)(6) of the Federal Rules

of Criminal Procedure. A proposed amendment to rule 11(e)(6) would

clarify the circumstances in which pleas, plea discussions and

related statements are inadmissible in evidence; see Advisory

Committee Note thereto. The amendment proposed above would make

comparable changes in rule 410.

AMENDMENT BY PUBLIC LAW

1975 - Pub. L. 94-149 substituted heading reading

"Inadmissibility of Pleas, Offers of Pleas, and Related Statements"

for "Offer to Plead Guilty; Nolo Contendere; Withdrawn Pleas of

Guilty"; substituted in first sentence "provided in this rule" for

"provided by Act of Congress", inserted therein ", and relevant

to," following 'in connection with", and deleted therefrom "action,

case, or" preceding "proceeding"; added second sentence relating to

admissibility of statements in criminal proceedings for perjury or

false statements; deleted former second sentence providing that

"This rule shall not apply to the introduction of voluntary and

reliable statements made in court on the record in connection with

any of the foregoing pleas or offers where offered for impeachment

purposes or in a subsequent prosecution of the declarant for

perjury or false statement."; and deleted former second par.

providing that "This rule shall not take effect until August 1,

1975, and shall be superseded by any amendment to the Federal Rules

of Criminal Procedure which is inconsistent with this rule, and

which takes effect after the date of the enactment of the Act

establishing these Federal Rules of Evidence."

EFFECTIVE DATE OF 1979 AMENDMENT

Pub. L. 96-42, July 31, 1979, 93 Stat. 326, provided in part that

the effective date of the amendment transmitted to Congress on Apr.

30, 1979, be extended from Aug. 1, 1979, to Dec. 1, 1980.

-End-

-CITE-

28 USC APPENDIX Rule 411 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

Rule 411. Liability Insurance

-STATUTE-

Evidence that a person was or was not insured against liability

is not admissible upon the issue whether the person acted

negligently or otherwise wrongfully. This rule does not require the

exclusion of evidence of insurance against liability when offered

for another purpose, such as proof of agency, ownership, or

control, or bias or prejudice of a witness.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1933; Mar. 2, 1987,

eff. Oct. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The courts have with substantial unanimity rejected evidence of

liability insurance for the purpose of proving fault, and absence

of liability insurance as proof of lack of fault. At best the

inference of fault from the fact of insurance coverage is a tenuous

one, as is its converse. More important, no doubt, has been the

feeling that knowledge of the presence or absence of liability

insurance would induce juries to decide cases on improper grounds.

McCormick Sec. 168; Annot., 4 A.L.R.2d 761. The rule is drafted in

broad terms so as to include contributory negligence or other fault

of a plaintiff as well as fault of a defendant.

The second sentence points out the limits of the rule, using well

established illustrations. Id.

For similar rules see Uniform Rule 54; California Evidence Code

Sec. 1155; Kansas Code of Civil Procedure Sec. 60-454; New Jersey

Evidence Rule 54.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 412 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past

Sexual Behavior or Alleged Sexual Predisposition

-STATUTE-

(a) Evidence Generally Inadmissible. - The following evidence is

not admissible in any civil or criminal proceeding involving

alleged sexual misconduct except as provided in subdivisions (b)

and (c):

(1) Evidence offered to prove that any alleged victim engaged

in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual

predisposition.

(b) Exceptions. -

(1) In a criminal case, the following evidence is admissible,

if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the

alleged victim offered to prove that a person other than the

accused was the source of semen, injury or other physical

evidence;

(B) evidence of specific instances of sexual behavior by the

alleged victim with respect to the person accused of the sexual

misconduct offered by the accused to prove consent or by the

prosecution; and

(C) evidence the exclusion of which would violate the

constitutional rights of the defendant.

(2) In a civil case, evidence offered to prove the sexual

behavior or sexual predisposition of any alleged victim is

admissible if it is otherwise admissible under these rules and

its probative value substantially outweighs the danger of harm to

any victim and of unfair prejudice to any party. Evidence of an

alleged victim's reputation is admissible only if it has been

placed in controversy by the alleged victim.

(c) Procedure To Determine Admissibility. -

(1) A party intending to offer evidence under subdivision (b)

must -

(A) file a written motion at least 14 days before trial

specifically describing the evidence and stating the purpose

for which it is offered unless the court, for good cause

requires a different time for filing or permits filing during

trial; and

(B) serve the motion on all parties and notify the alleged

victim or, when appropriate, the alleged victim's guardian or

representative.

(2) Before admitting evidence under this rule the court must

conduct a hearing in camera and afford the victim and parties a

right to attend and be heard. The motion, related papers, and the

record of the hearing must be sealed and remain under seal unless

the court orders otherwise.

-SOURCE-

(Added Pub. L. 95-540, Sec. 2(a), Oct. 28, 1978, 92 Stat. 2046;

amended Pub. L. 100-690, title VII, Sec. 7046(a), Nov. 18, 1988,

102 Stat. 4400; Apr. 29, 1994, eff. Dec. 1, 1994; Pub. L. 103-322,

title IV, Sec. 40141(b), Sept. 13, 1994, 108 Stat. 1919.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1994 AMENDMENT

Rule 412 has been revised to diminish some of the confusion

engendered by the original rule and to expand the protection

afforded alleged victims of sexual misconduct. Rule 412 applies to

both civil and criminal proceedings. The rule aims to safeguard the

alleged victim against the invasion of privacy, potential

embarrassment and sexual stereotyping that is associated with

public disclosure of intimate sexual details and the infusion of

sexual innuendo into the factfinding process. By affording victims

protection in most instances, the rule also encourages victims of

sexual misconduct to institute and to participate in legal

proceedings against alleged offenders.

Rule 412 seeks to achieve these objectives by barring evidence

relating to the alleged victim's sexual behavior or alleged sexual

predisposition, whether offered as substantive evidence or for

impeachment, except in designated circumstances in which the

probative value of the evidence significantly outweighs possible

harm to the victim.

The revised rule applies in all cases involving sexual misconduct

without regard to whether the alleged victim or person accused is a

party to the litigation. Rule 412 extends to "pattern" witnesses in

both criminal and civil cases whose testimony about other instances

of sexual misconduct by the person accused is otherwise admissible.

When the case does not involve alleged sexual misconduct, evidence

relating to a third-party witness' alleged sexual activities is not

within the ambit of Rule 412. The witness will, however, be

protected by other rules such as Rules 404 and 608, as well as Rule

403.

The terminology "alleged victim" is used because there will

frequently be a factual dispute as to whether sexual misconduct

occurred. It does not connote any requirement that the misconduct

be alleged in the pleadings. Rule 412 does not, however, apply

unless the person against whom the evidence is offered can

reasonably be characterized as a "victim of alleged sexual

misconduct." When this is not the case, as for instance in a

defamation action involving statements concerning sexual misconduct

in which the evidence is offered to show that the alleged

defamatory statements were true or did not damage the plaintiff's

reputation, neither Rule 404 nor this rule will operate to bar the

evidence; Rule 401 and 403 will continue to control. Rule 412 will,

however, apply in a Title VII action in which the plaintiff has

alleged sexual harassment.

The reference to a person "accused" is also used in a

non-technical sense. There is no requirement that there be a

criminal charge pending against the person or even that the

misconduct would constitute a criminal offense. Evidence offered to

prove allegedly false prior claims by the victim is not barred by

Rule 412. However, this evidence is subject to the requirements of

Rule 404.

Subdivision (a). As amended, Rule 412 bars evidence offered to

prove the victim's sexual behavior and alleged sexual

predisposition. Evidence, which might otherwise be admissible under

Rules 402, 404(b), 405, 607, 608, 609, or some other evidence rule,

must be excluded if Rule 412 so requires. The word "other" is used

to suggest some flexibility in admitting evidence "intrinsic" to

the alleged sexual misconduct. Cf. Committee Note to 1991 amendment

to Rule 404(b).

Past sexual behavior connotes all activities that involve actual

physical conduct, i.e. sexual intercourse and sexual contact, or

that imply sexual intercourse or sexual contact. See, e.g., United

States v. Galloway, 937 F.2d 542 (10th Cir. 1991), cert. denied,

113 S.Ct. 418 (1992) (use of contraceptives inadmissible since use

implies sexual activity); United States v. One Feather, 702 F.2d

736 (8th Cir. 1983) (birth of an illegitimate child inadmissible);

State v. Carmichael, 727 P.2d 918, 925 (Kan. 1986) (evidence of

venereal disease inadmissible). In addition, the word "behavior"

should be construed to include activities of the mind, such as

fantasies or dreams. See 23 C. Wright & K. Graham, Jr., Federal

Practice and Procedure, Sec. 5384 at p. 548 (1980) ("While there

may be some doubt under statutes that require 'conduct,' it would

seem that the language of Rule 412 is broad enough to encompass the

behavior of the mind.").

The rule has been amended to also exclude all other evidence

relating to an alleged victim of sexual misconduct that is offered

to prove a sexual predisposition. This amendment is designed to

exclude evidence that does not directly refer to sexual activities

or thoughts but that the proponent believes may have a sexual

connotation for the factfinder. Admission of such evidence would

contravene Rule 412's objectives of shielding the alleged victim

from potential embarrassment and safeguarding the victim against

stereotypical thinking. Consequently, unless the (b)(2) exception

is satisfied, evidence such as that relating to the alleged

victim's mode of dress, speech, or life-style will not be

admissible.

The introductory phrase in subdivision (a) was deleted because it

lacked clarity and contained no explicit reference to the other

provisions of law that were intended to be overridden. The

conditional clause, "except as provided in subdivisions (b) and

(c)" is intended to make clear that evidence of the types described

in subdivision (a) is admissible only under the strictures of those

sections.

The reason for extending the rule to all criminal cases is

obvious. The strong social policy of protecting a victim's privacy

and encouraging victims to come forward to report criminal acts is

not confined to cases that involve a charge of sexual assault. The

need to protect the victim is equally great when a defendant is

charged with kidnapping, and evidence is offered, either to prove

motive or as background, that the defendant sexually assaulted the

victim.

The reason for extending Rule 412 to civil cases is equally

obvious. The need to protect alleged victims against invasions of

privacy, potential embarrassment, and unwarranted sexual

stereotyping, and the wish to encourage victims to come forward

when they have been sexually molested do not disappear because the

context has shifted from a criminal prosecution to a claim for

damages or injunctive relief. There is a strong social policy in

not only punishing those who engage in sexual misconduct, but in

also providing relief to the victim. Thus, Rule 412 applies in any

civil case in which a person claims to be the victim of sexual

misconduct, such as actions for sexual battery or sexual

harassment.

Subdivision (b). Subdivision (b) spells out the specific

circumstances in which some evidence may be admissible that would

otherwise be barred by the general rule expressed in subdivision

(a). As amended, Rule 412 will be virtually unchanged in criminal

cases, but will provide protection to any person alleged to be a

victim of sexual misconduct regardless of the charge actually

brought against an accused. A new exception has been added for

civil cases.

In a criminal case, evidence may be admitted under subdivision

(b)(1) pursuant to three possible exceptions, provided the evidence

also satisfies other requirements for admissibility specified in

the Federal Rules of Evidence, including Rule 403. Subdivisions

(b)(1)(A) and (b)(1)(B) require proof in the form of specific

instances of sexual behavior in recognition of the limited

probative value and dubious reliability of evidence of reputation

or evidence in the form of an opinion.

Under subdivision (b)(1)(A), evidence of specific instances of

sexual behavior with persons other than the person whose sexual

misconduct is alleged may be admissible if it is offered to prove

that another person was the source of semen, injury or other

physical evidence. Where the prosecution has directly or indirectly

asserted that the physical evidence originated with the accused,

the defendant must be afforded an opportunity to prove that another

person was responsible. See United States v. Begay, 937 F.2d 515,

523 n. 10 (10th Cir. 1991). Evidence offered for the specific

purpose identified in this subdivision may still be excluded if it

does not satisfy Rules 401 or 403. See, e.g., United States v.

Azure, 845 F.2d 1503, 1505-06 (8th Cir. 1988) (10 year old victim's

injuries indicated recent use of force; court excluded evidence of

consensual sexual activities with witness who testified at in

camera hearing that he had never hurt victim and failed to

establish recent activities).

Under the exception in subdivision (b)(1)(B), evidence of

specific instances of sexual behavior with respect to the person

whose sexual misconduct is alleged is admissible if offered to

prove consent, or offered by the prosecution. Admissible pursuant

to this exception might be evidence of prior instances of sexual

activities between the alleged victim and the accused, as well as

statements in which the alleged victim expressed an intent to

engage in sexual intercourse with the accused, or voiced sexual

fantasies involving the specific accused. In a prosection [sic] for

child sexual abuse, for example, evidence of uncharged sexual

activity between the accused and the alleged victim offered by the

prosecution may be admissible pursuant to Rule 404(b) to show a

pattern of behavior. Evidence relating to the victim's alleged

sexual predisposition is not admissible pursuant to this exception.

Under subdivision (b)(1)(C), evidence of specific instances of

conduct may not be excluded if the result would be to deny a

criminal defendant the protections afforded by the Constitution.

For example, statements in which the victim has expressed an intent

to have sex with the first person encountered on a particular

occasion might not be excluded without violating the due process

right of a rape defendant seeking to prove consent. Recognition of

this basic principle was expressed in subdivision (b)(1) of the

original rule. The United States Supreme Court has recognized that

in various circumstances a defendant may have a right to introduce

evidence otherwise precluded by an evidence rule under the

Confrontation Clause. See, e.g., Olden v. Kentucky, 488 U.S. 227

(1988) (defendant in rape cases had right to inquire into alleged

victim's cohabitation with another man to show bias).

Subdivision (b)(2) governs the admissibility of otherwise

proscribed evidence in civil cases. It employs a balancing test

rather than the specific exceptions stated in subdivision (b)(1) in

recognition of the difficulty of foreseeing future developments in

the law. Greater flexibility is needed to accommodate evolving

causes of action such as claims for sexual harassment.

The balancing test requires the proponent of the evidence,

whether plaintiff or defendant, to convince the court that the

probative value of the proffered evidence "substantially outweighs

the danger of harm to any victim and of unfair prejudice of any

party." This test for admitting evidence offered to prove sexual

behavior or sexual propensity in civil cases differs in three

respects from the general rule governing admissibility set forth in

Rule 403. First, it reverses the usual procedure spelled out in

Rule 403 by shifting the burden to the proponent to demonstrate

admissibility rather than making the opponent justify exclusion of

the evidence. Second, the standard expressed in subdivision (b)(2)

is more stringent than in the original rule; it raises the

threshold for admission by requiring that the probative value of

the evidence substantially outweigh the specified dangers. Finally,

the Rule 412 test puts "harm to the victim" on the scale in

addition to prejudice to the parties.

Evidence of reputation may be received in a civil case only if

the alleged victim has put his or her reputation into controversy.

The victim may do so without making a specific allegation in a

pleading. Cf. Fed.R.Civ.P. 35(a).

Subdivision (c). Amended subdivision (c) is more concise and

understandable than the subdivision it replaces. The requirement of

a motion before trial is continued in the amended rule, as is the

provision that a late motion may be permitted for good cause shown.

In deciding whether to permit late filing, the court may take into

account the conditions previously included in the rule: namely

whether the evidence is newly discovered and could not have been

obtained earlier through the existence of due diligence, and

whether the issue to which such evidence relates has newly arisen

in the case. The rule recognizes that in some instances the

circumstances that justify an application to introduce evidence

otherwise barred by Rule 412 will not become apparent until trial.

The amended rule provides that before admitting evidence that

falls within the prohibition of Rule 412(a), the court must hold a

hearing in camera at which the alleged victim and any party must be

afforded the right to be present and an opportunity to be heard.

All papers connected with the motion and any record of a hearing on

the motion must be kept and remain under seal during the course of

trial and appellate proceedings unless otherwise ordered. This is

to assure that the privacy of the alleged victim is preserved in

all cases in which the court rules that proffered evidence is not

admissible, and in which the hearing refers to matters that are not

received, or are received in another form.

The procedures set forth in subdivision (c) do not apply to

discovery of a victim's past sexual conduct or predisposition in

civil cases, which will be continued to be governed by Fed.R.Civ.P.

26. In order not to undermine the rationale of Rule 412, however,

courts should enter appropriate orders pursuant to Fed.R.Civ.P.

26(c) to protect the victim against unwarranted inquiries and to

ensure confidentiality. Courts should presumptively issue

protective orders barring discovery unless the party seeking

discovery makes a showing that the evidence sought to be discovered

would be relevant under the facts and theories of the particular

case, and cannot be obtained except through discovery. In an action

for sexual harassment, for instance, while some evidence of the

alleged victim's sexual behavior and/or predisposition in the

workplace may perhaps be relevant, non-work place conduct will

usually be irrelevant. Cf. Burns v. McGregor Electronic Industries,

Inc., 989 F.2d 959, 962-63 (8th Cir. 1993) (posing for a nude

magazine outside work hours is irrelevant to issue of unwelcomeness

of sexual advances at work). Confidentiality orders should be

presumptively granted as well.

One substantive change made in subdivision (c) is the elimination

of the following sentence: "Notwithstanding subdivision (b) of Rule

104, if the relevancy of the evidence which the accused seeks to

offer in the trial depends upon the fulfillment of a condition of

fact, the court, at the hearing in chambers or at a subsequent

hearing in chambers scheduled for such purpose, shall accept

evidence on the issue of whether such condition of fact is

fulfilled and shall determine such issue." On its face, this

language would appear to authorize a trial judge to exclude

evidence of past sexual conduct between an alleged victim and an

accused or a defendant in a civil case based upon the judge's

belief that such past acts did not occur. Such an authorization

raises questions of invasion of the right to a jury trial under the

Sixth and Seventh Amendments. See 1 S. Saltzburg & M. Martin,

Federal Rules Of Evidence Manual, 396-97 (5th ed. 1990).

The Advisory Committee concluded that the amended rule provided

adequate protection for all persons claiming to be the victims of

sexual misconduct, and that it was inadvisable to continue to

include a provision in the rule that has been confusing and that

raises substantial constitutional issues.

[The Supreme Court withheld that portion of the proposed

amendment to Rule 412 transmitted to the Court by the Judicial

Conference of the United States which would apply that Rule to

civil cases. This Note was not revised to account for the Court's

action, because the Note is the commentary of the advisory

committee. The proposed amendment to Rule 412 was subsequently

amended by section 40141(b) of Pub. L. 103-322. See below.]

CONGRESSIONAL MODIFICATION OF PROPOSED 1994 AMENDMENT

Section 40141(a) of Pub. L. 103-322 [set out as a note under

section 2074 of this title] provided that the amendment proposed by

the Supreme Court in its order of Apr. 29, 1994, affecting Rule 412

of the Federal Rules of Evidence would take effect on Dec. 1, 1994,

as otherwise provided by law, and as amended by section 40141(b) of

Pub. L. 103-322. See 1994 Amendment note below.

AMENDMENT BY PUBLIC LAW

1994 - Pub. L. 103-322 amended rule generally. Prior to

amendment, rule contained provisions relating to the relevance and

admissibility of a victim's past sexual behavior in criminal sex

offense cases under chapter 109A of Title 18, Crimes and Criminal

Procedure.

1988 - Pub. L. 100-690, Sec. 7046(a)(1), substituted "Sex

Offense" for "Rape" in catchline.

Subd. (a). Pub. L. 100-690, Sec. 7046(a)(2), (3), substituted "an

offense under chapter 109A of title 18, United States Code" for

"rape or of assault with intent to commit rate" and "such offense"

for "such rape or assault".

Subd. (b). Pub. L. 100-690, Sec. 7046(a)(2), (5), substituted "an

offense under chapter 109A of title 18, United States Code" for

"rape or of assault with intent to commit rape" in introductory

provisions and "such offense" for "rape or assault" in subd.

(b)(2)(B).

Subds. (c)(1), (d). Pub. L. 100-690, Sec. 7046(a)(4), substituted

"an offense under chapter 109A of title 18, United States Code" for

"rape or assault with intent to commit rape".

EFFECTIVE DATE

Section 3 of Pub. L. 95-540 provided that: "The amendments made

by this Act [enacting this rule] shall apply to trials which begin

more than thirty days after the date of the enactment of this Act

[Oct. 28, 1978]."

-End-

-CITE-

28 USC APPENDIX Rule 413 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

Rule 413. Evidence of Similar Crimes in Sexual Assault Cases

-STATUTE-

(a) In a criminal case in which the defendant is accused of an

offense of sexual assault, evidence of the defendant's commission

of another offense or offenses of sexual assault is admissible, and

may be considered for its bearing on any matter to which it is

relevant.

(b) In a case in which the Government intends to offer evidence

under this rule, the attorney for the Government shall disclose the

evidence to the defendant, including statements of witnesses or a

summary of the substance of any testimony that is expected to be

offered, at least fifteen days before the scheduled date of trial

or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or

consideration of evidence under any other rule.

(d) For purposes of this rule and Rule 415, "offense of sexual

assault" means a crime under Federal law or the law of a State (as

defined in section 513 of title 18, United States Code) that

involved -

(1) any conduct proscribed by chapter 109A of title 18, United

States Code;

(2) contact, without consent, between any part of the

defendant's body or an object and the genitals or anus of another

person;

(3) contact, without consent, between the genitals or anus of

the defendant and any part of another person's body;

(4) deriving sexual pleasure or gratification from the

infliction of death, bodily injury, or physical pain on another

person; or

(5) an attempt or conspiracy to engage in conduct described in

paragraphs (1)-(4).

-SOURCE-

(Added Pub. L. 103-322, title XXXII, Sec. 320935(a), Sept. 13,

1994, 108 Stat. 2135.)

-MISC1-

EFFECTIVE DATE

Section 320935(b)-(e) of Pub. L. 103-322, as amended by Pub. L.

104-208, div. A, title I, Sec. 101(a), [title I, Sec. 120], Sept.

30, 1996, 110 Stat. 3009, 3009-25, provided that:

"(b) Implementation. - The amendments made by subsection (a)

[enacting this rule and rules 414 and 415 of these rules] shall

become effective pursuant to subsection (d).

"(c) Recommendations by Judicial Conference. - Not later than 150

days after the date of enactment of this Act [Sept. 13, 1994], the

Judicial Conference of the United States shall transmit to Congress

a report containing recommendations for amending the Federal Rules

of Evidence as they affect the admission of evidence of a

defendant's prior sexual assault or child molestation crimes in

cases involving sexual assault and child molestation. The Rules

Enabling Act [28 U.S.C. 2072] shall not apply to the

recommendations made by the Judicial Conference pursuant to this

section.

"(d) Congressional Action. -

"(1) If the recommendations described in subsection (c) are the

same as the amendment made by subsection (a), then the amendments

made by subsection (a) shall become effective 30 days after the

transmittal of the recommendations.

"(2) If the recommendations described in subsection (c) are

different than the amendments made by subsection (a), the

amendments made by subsection (a) shall become effective 150 days

after the transmittal of the recommendations unless otherwise

provided by law.

"(3) If the Judicial Conference fails to comply with subsection

(c), the amendments made by subsection (a) shall become effective

150 days after the date the recommendations were due under

subsection (c) unless otherwise provided by law.

"(e) Application. - The amendments made by subsection (a) shall

apply to proceedings commenced on or after the effective date of

such amendments [July 9, 1995], including all trials commenced on

or after the effective date of such amendments."

[The Judicial Conference transmitted to Congress on Feb. 9, 1995,

a report containing recommendations described in subsec. (c) that

were different than the amendments made by subsec. (a). The

amendments made by subsec. (a) became effective July 9, 1995.]

-End-

-CITE-

28 USC APPENDIX Rule 414 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

Rule 414. Evidence of Similar Crimes in Child Molestation Cases

-STATUTE-

(a) In a criminal case in which the defendant is accused of an

offense of child molestation, evidence of the defendant's

commission of another offense or offenses of child molestation is

admissible, and may be considered for its bearing on any matter to

which it is relevant.

(b) In a case in which the Government intends to offer evidence

under this rule, the attorney for the Government shall disclose the

evidence to the defendant, including statements of witnesses or a

summary of the substance of any testimony that is expected to be

offered, at least fifteen days before the scheduled date of trial

or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or

consideration of evidence under any other rule.

(d) For purposes of this rule and Rule 415, "child" means a

person below the age of fourteen, and "offense of child

molestation" means a crime under Federal law or the law of a State

(as defined in section 513 of title 18, United States Code) that

involved -

(1) any conduct proscribed by chapter 109A of title 18, United

States Code, that was committed in relation to a child;

(2) any conduct proscribed by chapter 110 of title 18, United

States Code;

(3) contact between any part of the defendant's body or an

object and the genitals or anus of a child;

(4) contact between the genitals or anus of the defendant and

any part of the body of a child;

(5) deriving sexual pleasure or gratification from the

infliction of death, bodily injury, or physical pain on a child;

or

(6) an attempt or conspiracy to engage in conduct described in

paragraphs (1)-(5).

-SOURCE-

(Added Pub. L. 103-322, title XXXII, Sec. 320935(a), Sept. 13,

1994, 108 Stat. 2136.)

-MISC1-

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.

-End-

-CITE-

28 USC APPENDIX Rule 415 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IV. RELEVANCY AND ITS LIMITS

-HEAD-

Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual

Assault or Child Molestation

-STATUTE-

(a) In a civil case in which a claim for damages or other relief

is predicated on a party's alleged commission of conduct

constituting an offense of sexual assault or child molestation,

evidence of that party's commission of another offense or offenses

of sexual assault or child molestation is admissible and may be

considered as provided in Rule 413 and Rule 414 of these rules.

(b) A party who intends to offer evidence under this Rule shall

disclose the evidence to the party against whom it will be offered,

including statements of witnesses or a summary of the substance of

any testimony that is expected to be offered, at least fifteen days

before the scheduled date of trial or at such later time as the

court may allow for good cause.

(c) This rule shall not be construed to limit the admission or

consideration of evidence under any other rule.

-SOURCE-

(Added Pub. L. 103-322, title XXXII, Sec. 320935(a), Sept. 13,

1994, 108 Stat. 2137.)

-MISC1-

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.

-End-

-CITE-

28 USC APPENDIX ARTICLE V. PRIVILEGES 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE V. PRIVILEGES

-HEAD-

ARTICLE V. PRIVILEGES

-End-

-CITE-

28 USC APPENDIX Rule 501 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE V. PRIVILEGES

-HEAD-

Rule 501. General Rule

-STATUTE-

Except as otherwise required by the Constitution of the United

States or provided by Act of Congress or in rules prescribed by the

Supreme Court pursuant to statutory authority, the privilege of a

witness, person, government, State, or political subdivision

thereof shall be governed by the principles of the common law as

they may be interpreted by the courts of the United States in the

light of reason and experience. However, in civil actions and

proceedings, with respect to an element of a claim or defense as to

which State law supplies the rule of decision, the privilege of a

witness, person, government, State, or political subdivision

thereof shall be determined in accordance with State law.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1933.)

-MISC1-

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. Sec. 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. Sec. 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. Sec. 1332 or 28 U.S.C. Sec.

1335, or between citizens of different States and removed under 28

U.S.C. Sec. 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 Sec. 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.

-End-

-CITE-

28 USC APPENDIX ARTICLE VI. WITNESSES 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

ARTICLE VI. WITNESSES

-End-

-CITE-

28 USC APPENDIX Rule 601 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

Rule 601. General Rule of Competency

-STATUTE-

Every person is competent to be a witness except as otherwise

provided in these rules. However, in civil actions and proceedings,

with respect to an element of a claim or defense as to which State

law supplies the rule of decision, the competency of a witness

shall be determined in accordance with State law.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

This general ground-clearing eliminates all grounds of

incompetency not specifically recognized in the succeeding rules of

this Article. Included among the grounds thus abolished are

religious belief, conviction of crime, and connection with the

litigation as a party or interested person or spouse of a party or

interested person. With the exception of the so-called Dead Man's

Acts, American jurisdictions generally have ceased to recognize

these grounds.

The Dead Man's Acts are surviving traces of the common law

disqualification of parties and interested persons. They exist in

variety too great to convey conviction of their wisdom and

effectiveness. These rules contain no provision of this kind. For

the reasoning underlying the decision not to give effect to state

statutes in diversity cases, see the Advisory Committee's Note to

Rule 501.

No mental or moral qualifications for testifying as a witness are

specified. Standards of mental capacity have proved elusive in

actual application. A leading commentator observes that few

witnesses are disqualified on that ground. Weihofen, Testimonial

Competence and Credibility, 34 Geo. Wash.L.Rev. 53 (1965).

Discretion is regularly exercised in favor of allowing the

testimony. A witness wholly without capacity is difficult to

imagine. The question is one particularly suited to the jury as one

of weight and credibility, subject to judicial authority to review

the sufficiency of the evidence. 2 Wigmore Secs. 501, 509.

Standards of moral qualification in practice consist essentially of

evaluating a person's truthfulness in terms of his own answers

about it. Their principal utility is in affording an opportunity on

voir dire examination to impress upon the witness his moral duty.

This result may, however, be accomplished more directly, and

without haggling in terms of legal standards, by the manner of

administering the oath or affirmation under Rule 603.

Admissibility of religious belief as a ground of impeachment is

treated in Rule 610. Conviction of crime as a ground of impeachment

is the subject of Rule 609. Marital relationship is the basis for

privilege under Rule 505. Interest in the outcome of litigation and

mental capacity are, of course, highly relevant to credibility and

require no special treatment to render them admissible along with

other matters bearing upon the perception, memory, and narration of

witnesses.

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

Rule 601 as submitted to the Congress provided that "Every person

is competent to be a witness except as otherwise provided in these

rules." One effect of the Rule as proposed would have been to

abolish age, mental capacity, and other grounds recognized in some

State jurisdictions as making a person incompetent as a witness.

The greatest controversy centered around the Rule's rendering

inapplicable in the federal courts the so-called Dead Man's

Statutes which exist in some States. Acknowledging that there is

substantial disagreement as to the merit of Dead Man's Statutes,

the Committee nevertheless believed that where such statutes have

been enacted they represent State policy which should not be

overturned in the absence of a compelling federal interest. The

Committee therefore amended the Rule to make competency in civil

actions determinable in accordance with State law with respect to

elements of claims or defenses as to which State law supplies the

rule of decision. Cf. Courtland v. Walston & Co., Inc., 340 F.Supp.

1076, 1087-1092 (S.D.N.Y. 1972).

NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277

The amendment to rule 601 parallels the treatment accorded rule

501 discussed immediately above.

NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597

Rule 601 deals with competency of witnesses. Both the House and

Senate bills provide that federal competency law applies in

criminal cases. In civil actions and proceedings, the House bill

provides that state competency law applies "to an element of a

claim or defense as to which State law supplies the rule of

decision." The Senate bill provides that "in civil actions and

proceedings arising under 28 U.S.C. Sec. 1332 or 28 U.S.C. Sec.

1335, or between citizens of different States and removed under 28

U.S.C. Sec. 1441(b) the competency of a witness, person,

government, State or political subdivision thereof is determined in

accordance with State law, unless with respect to the particular

claim or defense, Federal law supplies the rule of decision."

The wording of the House and Senate bills differs in the

treatment of civil actions and proceedings. The rule in the House

bill applies to evidence that relates to "an element of a claim or

defense." If an item of proof tends to support or defeat a claim or

defense, or an element of a claim or defense, and if state law

supplies the rule of decision for that claim or defense, then state

competency law applies to that item of proof.

For reasons similar to those underlying its action on Rule 501,

the Conference adopts the House provision.

-End-

-CITE-

28 USC APPENDIX Rule 602 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

Rule 602. Lack of Personal Knowledge

-STATUTE-

A witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has

personal knowledge of the matter. Evidence to prove personal

knowledge may, but need not, consist of the witness' own testimony.

This rule is subject to the provisions of rule 703, relating to

opinion testimony by expert witnesses.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987,

eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

"* * * [T]he rule requiring that a witness who testifies to a

fact which can be perceived by the senses must have had an

opportunity to observe, and must have actually observed the fact"

is a "most pervasive manifestation" of the common law insistence

upon "the most reliable sources of information." McCormick Sec. 10,

p. 19. These foundation requirements may, of course, be furnished

by the testimony of the witness himself; hence personal knowledge

is not an absolute but may consist of what the witness thinks he

knows from personal perception. 2 Wigmore Sec. 650. It will be

observed that the rule is in fact a specialized application of the

provisions of Rule 104(b) on conditional relevancy.

This rule does not govern the situation of a witness who

testifies to a hearsay statement as such, if he has personal

knowledge of the making of the statement. Rules 801 and 805 would

be applicable. This rule would, however, prevent him from

testifying to the subject matter of the hearsay statement, as he

has no personal knowledge of it.

The reference to Rule 703 is designed to avoid any question of

conflict between the present rule and the provisions of that rule

allowing an expert to express opinions based on facts of which he

does not have personal knowledge.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT

The amendment is technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 603 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

Rule 603. Oath or Affirmation

-STATUTE-

Before testifying, every witness shall be required to declare

that the witness will testify truthfully, by oath or affirmation

administered in a form calculated to awaken the witness' conscience

and impress the witness' mind with the duty to do so.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987,

eff. Oct. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The rule is designed to afford the flexibility required in

dealing with religious adults, atheists, conscientious objectors,

mental defectives, and children. Affirmation is simply a solemn

undertaking to tell the truth; no special verbal formula is

required. As is true generally, affirmation is recognized by

federal law. "Oath" includes affirmation, 1 U.S.C. Sec. 1; judges

and clerks may administer oaths and affirmations, 28 U.S.C. Secs.

459, 953; and affirmations are acceptable in lieu of oaths under

Rule 43(d) of the Federal Rules of Civil Procedure. Perjury by a

witness is a crime, 18 U.S.C. Sec. 1621.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 604 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

Rule 604. Interpreters

-STATUTE-

An interpreter is subject to the provisions of these rules

relating to qualification as an expert and the administration of an

oath or affirmation to make a true translation.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987,

eff. Oct. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The rule implements Rule 43(f) of the Federal Rules of Civil

Procedure and Rule 28(b) of the Federal Rules of Criminal

Procedure, both of which contain provisions for the appointment and

compensation of interpreters.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 605 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

Rule 605. Competency of Judge as Witness

-STATUTE-

The judge presiding at the trial may not testify in that trial as

a witness. No objection need be made in order to preserve the

point.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

In view of the mandate of 28 U.S.C. Sec. 455 that a judge

disqualify himself in "any case in which he * * * is or has been a

material witness," the likelihood that the presiding judge in a

federal court might be called to testify in the trial over which he

is presiding is slight. Nevertheless the possibility is not totally

eliminated.

The solution here presented is a broad rule of incompetency,

rather than such alternatives as incompetency only as to material

matters, leaving the matter to the discretion of the judge, or

recognizing no incompetency. The choice is the result of inability

to evolve satisfactory answers to questions which arise when the

judge abandons the bench for the witness stand. Who rules on

objections? Who compels him to answer? Can he rule impartially on

the weight and admissibility of his own testimony? Can he be

impeached or cross-examined effectively? Can he, in a jury trial,

avoid conferring his seal of approval on one side in the eyes of

the jury? Can he, in a bench trial, avoid an involvement

destructive of impartiality? The rule of general incompetency has

substantial support. See Report of the Special Committee on the

Propriety of Judges Appearing as Witnesses, 36 A.B.A.J. 630 (1950);

cases collected in Annot. 157 A.L.R. 311; McCormick Sec. 68, p.

147; Uniform Rule 42; California Evidence Code Sec. 703; Kansas

Code of Civil Procedure Sec. 60-442; New Jersey Evidence Rule 42.

Cf. 6 Wigmore Sec. 1909, which advocates leaving the matter to the

discretion of the judge, and statutes to that effect collected in

Annot. 157 A.L.R. 311.

The rule provides an "automatic" objection. To require an actual

objection would confront the opponent with a choice between not

objecting, with the result of allowing the testimony, and

objecting, with the probable result of excluding the testimony but

at the price of continuing the trial before a judge likely to feel

that his integrity had been attacked by the objector.

-End-

-CITE-

28 USC APPENDIX Rule 606 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

Rule 606. Competency of Juror as Witness

-STATUTE-

(a) At the trial. - A member of the jury may not testify as a

witness before that jury in the trial of the case in which the

juror is sitting. If the juror is called so to testify, the

opposing party shall be afforded an opportunity to object out of

the presence of the jury.

(b) Inquiry into validity of verdict or indictment. - Upon an

inquiry into the validity of a verdict or indictment, a juror may

not testify as to any matter or statement occurring during the

course of the jury's deliberations or to the effect of anything

upon that or any other juror's mind or emotions as influencing the

juror to assent to or dissent from the verdict or indictment or

concerning the juror's mental processes in connection therewith,

except that a juror may testify on the question whether extraneous

prejudicial information was improperly brought to the jury's

attention or whether any outside influence was improperly brought

to bear upon any juror. Nor may a juror's affidavit or evidence of

any statement by the juror concerning a matter about which the

juror would be precluded from testifying be received for these

purposes.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934; Pub. L.

94-149, Sec. 1(10), Dec. 12, 1975, 89 Stat. 805; Mar. 2, 1987, eff.

Oct. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Subdivision (a). The considerations which bear upon the

permissibility of testimony by a juror in the trial in which he is

sitting as juror bear an obvious similarity to those evoked when

the judge is called as a witness. See Advisory Committee's Note to

Rule 605. The judge is not, however in this instance so involved as

to call for departure from usual principles requiring objection to

be made; hence the only provision on objection is that opportunity

be afforded for its making out of the presence of the jury. Compare

Rules 605.

Subdivision (b). Whether testimony, affidavits, or statements of

jurors should be received for the purpose of invalidating or

supporting a verdict or indictment, and if so, under what

circumstances, has given rise to substantial differences of

opinion. The familiar rubric that a juror may not impeach his own

verdict, dating from Lord Mansfield's time, is a gross

oversimplification. The values sought to be promoted by excluding

the evidence include freedom of deliberation, stability and

finality of verdicts, and protection of jurors against annoyance

and embarrassment. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 785,

59 L.Ed. 1300 (1915). On the other hand, simply putting verdicts

beyond effective reach can only promote irregularity and injustice.

The rule offers an accommodation between these competing

considerations.

The mental operations and emotional reactions of jurors in

arriving at a given result would, if allowed as a subject of

inquiry, place every verdict at the mercy of jurors and invite

tampering and harassment. See Grenz v. Werre, 129 N.W.2d 681 (N.D.

1964). The authorities are in virtually complete accord in

excluding the evidence. Fryer, Note on Disqualification of

Witnesses, Selected Writings on Evidence and Trial 345, 347 (Fryer

ed. 1957); Maguire, Weinstein, et al., Cases on Evidence 887 (5th

ed. 1965); 8 Wigmore Sec. 2340 (McNaughton Rev. 1961). As to

matters other than mental operations and emotional reactions of

jurors, substantial authority refuses to allow a juror to disclose

irregularities which occur in the jury room, but allows his

testimony as to irregularities occurring outside and allows

outsiders to testify as to occurrences both inside and out. 8

Wigmore Sec. 2354 (McNaughton Rev. 1961). However, the door of the

jury room is not necessarily a satisfactory dividing point, and the

Supreme Court has refused to accept it for every situation. Mattox

v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892).

Under the federal decisions the central focus has been upon

insulation of the manner in which the jury reached its verdict, and

this protection extends to each of the components of deliberation,

including arguments, statements, discussions, mental and emotional

reactions, votes, and any other feature of the process. Thus

testimony or affidavits of jurors have been held incompetent to

show a compromise verdict, Hyde v. United States, 225 U.S. 347, 382

(1912); a quotient verdict, McDonald v. Pless, 238 U.S. 264 (1915);

speculation as to insurance coverage, Holden v. Porter, 495 F.2d

878 (10th Cir.1969), Farmers Coop. Elev. Ass'n v. Strand, 382 F.2d

224, 230 (8th Cir. 1967), cert. denied 389 U.S. 1014;

misinterpretations of instructions, Farmers Coop. Elev. Ass'n v.

Strand, supra; mistake in returning verdict, United States v.

Chereton, 309 F.2d 197 (6th Cir. 1962); interpretation of guilty

plea by one defendant as implicating others, United States v.

Crosby, 294 F.2d 928, 949 (2d Cir. 1961). The policy does not,

however, foreclose testimony by jurors as to prejudicial extraneous

information or influences injected into or brought to bear upon the

deliberative process. Thus a juror is recognized as competent to

testify to statements by the bailiff or the introduction of a

prejudicial newspaper account into the jury room, Mattox v. United

States, 146 U.S. 140 (1892). See also Parker v. Gladden, 385 U.S.

363 (1966).

This rule does not purport to specify the substantive grounds for

setting aside verdicts for irregularity; it deals only with the

competency of jurors to testify concerning those grounds. Allowing

them to testify as to matters other than their own inner reactions

involves no particular hazard to the values sought to be protected.

The rules is based upon this conclusion. It makes no attempt to

specify the substantive grounds for setting aside verdicts for

irregularity.

See also Rule 6(e) of the Federal Rules of Criminal Procedure and

18 U.S.C. Sec. 3500, governing the secrecy of grand jury

proceedings. The present rules does not relate to secrecy and

disclosure but to the competency of certain witnesses and evidence.

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

As proposed by the Court, Rule 606(b) limited testimony by a

juror in the course of an inquiry into the validity of a verdict or

indictment. He could testify as to the influence of extraneous

prejudicial information brought to the jury's attention (e.g. a

radio newscast or a newspaper account) or an outside influence

which improperly had been brought to bear upon a juror (e.g. a

threat to the safety of a member of his family), but he could not

testify as to other irregularities which occurred in the jury room.

Under this formulation a quotient verdict could not be attacked

through the testimony of a juror, nor could a juror testify to the

drunken condition of a fellow juror which so disabled him that he

could not participate in the jury's deliberations.

The 1969 and 1971 Advisory Committee drafts would have permitted

a member of the jury to testify concerning these kinds of

irregularities in the jury room. The Advisory Committee note in the

1971 draft stated that "* * * the door of the jury room is not a

satisfactory dividing point, and the Supreme Court has refused to

accept it." The Advisory Committee further commented that -

The trend has been to draw the dividing line between testimony

as to mental processes, on the one hand, and as to the existence

of conditions or occurrences of events calculated improperly to

influence the verdict, on the other hand, without regard to

whether the happening is within or without the jury room. * * *

The jurors are the persons who know what really happened.

Allowing them to testify as to matters other than their own

reactions involves no particular hazard to the values sought to

be protected. The rule is based upon this conclusion. It makes no

attempt to specify the substantive grounds for setting aside

verdicts for irregularity.

Objective jury misconduct may be testified to in California,

Florida, Iowa, Kansas, Nebraska, New Jersey, North Dakota, Ohio,

Oregon, Tennessee, Texas, and Washington.

Persuaded that the better practice is that provided for in the

earlier drafts, the Committee amended subdivision (b) to read in

the text of those drafts.

NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277

As adopted by the House, this rule would permit the impeachment

of verdicts by inquiry into, not the mental processes of the

jurors, but what happened in terms of conduct in the jury room.

This extension of the ability to impeach a verdict is felt to be

unwarranted and ill-advised.

The rule passed by the House embodies a suggestion by the

Advisory Committee of the Judicial Conference that is considerably

broader than the final version adopted by the Supreme Court, which

embodies long-accepted Federal law. Although forbidding the

impeachment of verdicts by inquiry into the jurors' mental

processes, it deletes from the Supreme Court version the

proscription against testimony "as to any matter or statement

occurring during the course of the jury's deliberations." This

deletion would have the effect of opening verdicts up to challenge

on the basis of what happened during the jury's internal

deliberations, for example, where a juror alleged that the jury

refused to follow the trial judge's instructions or that some of

the jurors did not take part in deliberations.

Permitting an individual to attack a jury verdict based upon the

jury's internal deliberations has long been recognized as unwise by

the Supreme Court. In McDonald v. Pless, the Court stated:

* * * * *

[L]et it once be established that verdicts solemnly made and

publicly returned into court can be attacked and set aside on the

testimony of those who took part in their publication and all

verdicts could be, and many would be, followed by an inquiry in

the hope of discovering something which might invalidate the

finding. Jurors would be harassed and beset by the defeated party

in an effort to secure from them evidence of facts which might

establish misconduct sufficient to set aside a verdict. If

evidence thus secured could be thus used, the result would be to

make what was intended to be a private deliberation, the constant

subject of public investigation - to the destruction of all

frankness and freedom of discussion and conference [238 U.S. 264,

at 267 (1914)].

* * * * *

As it stands then, the rule would permit the harassment of former

jurors by losing parties as well as the possible exploitation of

disgruntled or otherwise badly-motivated ex-jurors.

Public policy requires a finality to litigation. And common

fairness requires that absolute privacy be preserved for jurors to

engage in the full and free debate necessary to the attainment of

just verdicts. Jurors will not be able to function effectively if

their deliberations are to be scrutinized in post-trial litigation.

In the interest of protecting the jury system and the citizens who

make it work, rule 606 should not permit any inquiry into the

internal deliberations of the jurors.

NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597

Rule 606(b) deals with juror testimony in an inquiry into the

validity of a verdict or indictment. The House bill provides that a

juror cannot testify about his mental processes or about the effect

of anything upon his or another juror's mind as influencing him to

assent to or dissent from a verdict or indictment. Thus, the House

bill allows a juror to testify about objective matters occurring

during the jury's deliberation, such as the misconduct of another

juror or the reaching of a quotient verdict. The Senate bill does

not permit juror testimony about any matter or statement occurring

during the course of the jury's deliberations. The Senate bill does

provide, however, that a juror may testify on the question whether

extraneous prejudicial information was improperly brought to the

jury's attention and on the question whether any outside influence

was improperly brought to bear on any juror.

The Conference adopts the Senate amendment. The Conferees believe

that jurors should be encouraged to be conscientious in promptly

reporting to the court misconduct that occurs during jury

deliberations.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

AMENDMENT BY PUBLIC LAW

1975 - Subd. (b). Pub. L. 94-149 substituted "which" for "what"

in last sentence.

-End-

-CITE-

28 USC APPENDIX Rule 607 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

Rule 607. Who May Impeach

-STATUTE-

The credibility of a witness may be attacked by any party,

including the party calling the witness.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1934; Mar. 2, 1987,

eff. Oct. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The traditional rule against impeaching one's own witness is

abandoned as based on false premises. A party does not hold out his

witnesses as worthy of belief, since he rarely has a free choice in

selecting them. Denial of the right leaves the party at the mercy

of the witness and the adversary. If the impeachment is by a prior

statement, it is free from hearsay dangers and is excluded from the

category of hearsay under Rule 801(d)(1). Ladd, Impeachment of

One's Own Witness - New Developments 4 U.Chi.L.Rev. 69 (1936);

McCormick Sec. 38; 3 Wigmore Secs. 896-918. The substantial inroads

into the old rule made over the years by decisions, rules, and

statutes are evidence of doubts as to its basic soundness and

workability. Cases are collected in 3 Wigmore Sec. 905. Revised

Rule 32(a)(1) of the Federal Rules of Civil Procedure allows any

party to impeach a witness by means of his deposition, and Rule

43(b) has allowed the calling and impeachment of an adverse party

or person identified with him. Illustrative statutes allowing a

party to impeach his own witness under varying circumstances are

Ill.Rev. Stats.1967, c. 110, Sec. 60; Mass.Laws Annot. 1959, c. 233

Sec. 23; 20 N.M.Stats. Annot. 1953, Sec. 20-2-4; N.Y. CPLR Sec.

4514 (McKinney 1963); 12 Vt.Stats. Annot. 1959, Secs. 1641a, 1642.

Complete judicial rejection of the old rule is found in United

States v. Freeman, 302 F.2d 347 (2d Cir. 1962). The same result is

reached in Uniform Rule 20; California Evidence Code Sec. 785;

Kansas Code of Civil Procedure Sec. 60-420. See also New Jersey

Evidence Rule 20.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 608 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

Rule 608. Evidence of Character and Conduct of Witness

-STATUTE-

(a) Opinion and reputation evidence of character. - The

credibility of a witness may be attacked or supported by evidence

in the form of opinion or reputation, but subject to these

limitations: (1) the evidence may refer only to character for

truthfulness or untruthfulness, and (2) evidence of truthful

character is admissible only after the character of the witness for

truthfulness has been attacked by opinion or reputation evidence or

otherwise.

(b) Specific instances of conduct. - Specific instances of the

conduct of a witness, for the purpose of attacking or supporting

the witness' credibility, other than conviction of crime as

provided in rule 609, may not be proved by extrinsic evidence. They

may, however, in the discretion of the court, if probative of

truthfulness or untruthfulness, be inquired into on

cross-examination of the witness (1) concerning the witness'

character for truthfulness or untruthfulness, or (2) concerning the

character for truthfulness or untruthfulness of another witness as

to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other

witness, does not operate as a waiver of the accused's or the

witness' privilege against self-incrimination when examined with

respect to matters which relate only to credibility.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1935; Mar. 2, 1987,

eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Subdivision (a). In Rule 404(a) the general position is taken

that character evidence is not admissible for the purpose of

proving that the person acted in conformity therewith, subject,

however, to several exceptions, one of which is character evidence

of a witness as bearing upon his credibility. The present rule

develops that exception.

In accordance with the bulk of judicial authority, the inquiry is

strictly limited to character for veracity, rather than allowing

evidence as to character generally. The result is to sharpen

relevancy, to reduce surprise, waste of time, and confusion, and to

make the lot of the witness somewhat less unattractive. McCormick

Sec. 44.

The use of opinion and reputation evidence as means of proving

the character of witnesses is consistent with Rule 405(a). While

the modern practice has purported to exclude opinion witnesses who

testify to reputation seem in fact often to be giving their

opinions, disguised somewhat misleadingly as reputation. See

McCormick Sec. 44. And even under the modern practice, a common

relaxation has allowed inquiry as to whether the witnesses would

believe the principal witness under oath. United States v. Walker,

313 F.2d 236 (6th Cir. 1963), and cases cited therein; McCormick

Sec. 44, pp. 94-95, n. 3.

Character evidence in support of credibility is admissible under

the rule only after the witness' character has first been attacked,

as has been the case at common law. Maguire, Weinstein, et al.,

Cases on Evidence 295 (5th ed. 1965); McCormick Sec. 49, p. 105; 4

Wigmore Sec. 1104. The enormous needless consumption of time which

a contrary practice would entail justifies the limitation. Opinion

or reputation that the witness is untruthful specifically qualifies

as an attack under the rule, and evidence or misconduct, including

conviction of crime, and of corruption also fall within this

category. Evidence of bias or interest does not. McCormick Sec. 49;

4 Wigmore Secs. 1106, 1107. Whether evidence in the form of

contradiction is an attack upon the character of the witness must

depend Secs. 1108, 1109.

As to the use of specific instances on direct by an opinion

witness, see the Advisory Committee's Note to Rule 405, supra.

Subdivision (b). In conformity with Rule 405, which forecloses

use of evidence of specific incidents as proof in chief of

character unless character is an issue in the case, the present

rule generally bars evidence of specific instances of conduct of a

witness for the purpose of attacking or supporting his credibility.

There are, however, two exceptions: (1) specific instances are

provable when they have been the subject of criminal conviction,

and (2) specific instances may be inquired into on

cross-examination of the principal witness or of a witness giving

an opinion of his character for truthfulness.

(1) Conviction of crime as a technique of impeachment is treated

in detail in Rule 609, and here is merely recognized as an

exception to the general rule excluding evidence of specific

incidents for impeachment purposes.

(2) Particular instances of conduct, though not the subject of

criminal conviction, may be inquired into on cross-examination of

the principal witness himself or of a witness who testifies

concerning his character for truthfulness. Effective

cross-examination demands that some allowance be made for going

into matters of this kind, but the possibilities of abuse are

substantial. Consequently safeguards are erected in the form of

specific requirements that the instances inquired into be probative

of truthfulness or its opposite and not remote in time. Also, the

overriding protection of Rule 403 requires that probative value not

be outweighed by danger of unfair prejudice, confusion of issues,

or misleading the jury, and that of Rule 611 bars harassment and

undue embarrassment.

The final sentence constitutes a rejection of the doctrine of

such cases as People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637 (1950),

that any past criminal act relevant to credibility may be inquired

into on cross-examination, in apparent disregard of the privilege

against self-incrimination. While it is clear that an ordinary

witness cannot make a partial disclosure of incriminating matter

and then invoke the privilege on cross-examination, no tenable

contention can be made that merely by testifying he waives his

right to foreclose inquiry on cross-examination into criminal

activities for the purpose of attacking his credibility. So to hold

would reduce the privilege to a nullity. While it is true that an

accused, unlike an ordinary witness, has an option whether to

testify, if the option can be exercised only at the price of

opening up inquiry as to any and all criminal acts committed during

his lifetime, the right to testify could scarcely be said to

possess much vitality. In Griffin v. California, 380 U.S. 609, 85

S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Court held that allowing

comment on the election of an accused not to testify exacted a

constitutionally impermissible price, and so here. While no

specific provision in terms confers constitutional status on the

right of an accused to take the stand in his own defense, the

existence of the right is so completely recognized that a denial of

it or substantial infringement upon it would surely be of due

process dimensions. See Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct.

756, 5 L.Ed.2d 783 (1961); McCormick Sec. 131; 8 Wigmore Sec. 2276

(McNaughton Rev. 1961). In any event, wholly aside from

constitutional considerations, the provision represents a sound

policy.

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

Rule 608(a) as submitted by the Court permitted attack to be made

upon the character for truthfulness or untruthfulness of a witness

either by reputation or opinion testimony. For the same reasons

underlying its decision to eliminate the admissibility of opinion

testimony in Rule 405(a), the Committee amended Rule 608(a) to

delete the reference to opinion testimony.

The second sentence of Rule 608(b) as submitted by the Court

permitted specific instances of misconduct of a witness to be

inquired into on cross-examination for the purpose of attacking his

credibility, if probative of truthfulness or untruthfulness, "and

not remote in time". Such cross-examination could be of the witness

himself or of another witness who testifies as to "his" character

for truthfulness or untruthfulness.

The Committee amended the Rule to emphasize the discretionary

power of the court in permitting such testimony and deleted the

reference to remoteness in time as being unnecessary and confusing

(remoteness from time of trial or remoteness from the incident

involved?). As recast, the Committee amendment also makes clear the

antecedent of "his" in the original Court proposal.

NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597

The Senate amendment adds the words "opinion or" to conform the

first sentence of the rule with the remainder of the rule.

The Conference adopts the Senate amendment.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT

The amendment is technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 609 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

Rule 609. Impeachment by Evidence of Conviction of Crime

-STATUTE-

(a) General rule. - For the purpose of attacking the credibility

of a witness,

(1) evidence that a witness other than an accused has been

convicted of a crime shall be admitted, subject to Rule 403, if

the crime was punishable by death or imprisonment in excess of

one year under the law under which the witness was convicted, and

evidence that an accused has been convicted of such a crime shall

be admitted if the court determines that the probative value of

admitting this evidence outweighs its prejudicial effect to the

accused; and

(2) evidence that any witness has been convicted of a crime

shall be admitted if it involved dishonesty or false statement,

regardless of the punishment.

(b) Time limit. - Evidence of a conviction under this rule is not

admissible if a period of more than ten years has elapsed since the

date of the conviction or of the release of the witness from the

confinement imposed for that conviction, whichever is the later

date, unless the court determines, in the interests of justice,

that the probative value of the conviction supported by specific

facts and circumstances substantially outweighs its prejudicial

effect. However, evidence of a conviction more than 10 years old as

calculated herein, is not admissible unless the proponent gives to

the adverse party sufficient advance written notice of intent to

use such evidence to provide the adverse party with a fair

opportunity to contest the use of such evidence.

(c) Effect of pardon, annulment, or certificate of

rehabilitation. - Evidence of a conviction is not admissible under

this rule if (1) the conviction has been the subject of a pardon,

annulment, certificate of rehabilitation, or other equivalent

procedure based on a finding of the rehabilitation of the person

convicted, and that person has not been convicted of a subsequent

crime which was punishable by death or imprisonment in excess of

one year, or (2) the conviction has been the subject of a pardon,

annulment, or other equivalent procedure based on a finding of

innocence.

(d) Juvenile adjudications. - Evidence of juvenile adjudications

is generally not admissible under this rule. The court may,

however, in a criminal case allow evidence of a juvenile

adjudication of a witness other than the accused if conviction of

the offense would be admissible to attack the credibility of an

adult and the court is satisfied that admission in evidence is

necessary for a fair determination of the issue of guilt or

innocence.

(e) Pendency of appeal. - The pendency of an appeal therefrom

does not render evidence of a conviction inadmissible. Evidence of

the pendency of an appeal is admissible.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1935; Mar. 2, 1987,

eff. Oct. 1, 1987; Jan. 26, 1990, eff. Dec. 1, 1990.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

As a means of impeachment, evidence of conviction of crime is

significant only because it stands as proof of the commission of

the underlying criminal act. There is little dissent from the

general proposition that at least some crimes are relevant to

credibility but much disagreement among the cases and commentators

about which crimes are usable for this purpose. See McCormick Sec.

43; 2 Wright, Federal Practice and Procedure; Criminal Sec. 416

(1969). The weight of traditional authority has been to allow use

of felonies generally, without regard to the nature of the

particular offense, and of crimen falsi without regard to the grade

of the offense. This is the view accepted by Congress in the 1970

amendment of Sec. 14-305 of the District of Columbia Code, P.L.

91-358, 84 Stat. 473. Uniform Rule 21 and Model Code Rule 106

permit only crimes involving "dishonesty or false statement."

Others have thought that the trial judge should have discretion to

exclude convictions if the probative value of the evidence of the

crime is substantially outweighed by the danger of unfair

prejudice. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d

763 (1965); McGowan, Impeachment of Criminal Defendants by Prior

Convictions, 1970 Law & Soc. Order 1. Whatever may be the merits of

those views, this rule is drafted to accord with the Congressional

policy manifested in the 1970 legislation.

The proposed rule incorporates certain basic safeguards, in terms

applicable to all witnesses but of particular significance to an

accused who elects to testify. These protections include the

imposition of definite time limitations, giving effect to

demonstrated rehabilitation, and generally excluding juvenile

adjudications.

Subdivision (a). For purposes of impeachment, crimes are divided

into two categories by the rule: (1) those of what is generally

regarded as felony grade, without particular regard to the nature

of the offense, and (2) those involving dishonesty or false

statement, without regard to the grade of the offense. Provable

convictions are not limited to violations of federal law. By reason

of our constitutional structure, the federal catalog of crimes is

far from being a complete one, and resort must be had to the laws

of the states for the specification of many crimes. For example,

simple theft as compared with theft from interstate commerce. Other

instances of borrowing are the Assimilative Crimes Act, making the

state law of crimes applicable to the special territorial and

maritime jurisdiction of the United States, 18 U.S.C. Sec. 13, and

the provision of the Judicial Code disqualifying persons as jurors

on the grounds of state as well as federal convictions, 28 U.S.C.

Sec. 1865. For evaluation of the crime in terms of seriousness,

reference is made to the congressional measurement of felony

(subject to imprisonment in excess of one year) rather than

adopting state definitions which vary considerably. See 28 U.S.C.

Sec. 1865, supra, disqualifying jurors for conviction in state or

federal court of crime punishable by imprisonment for more than one

year.

Subdivision (b). Few statutes recognize a time limit on

impeachment by evidence of conviction. However, practical

considerations of fairness and relevancy demand that some boundary

be recognized. See Ladd, Credibility Tests - Current Trends, 89

U.Pa.L.Rev. 166, 176-177 (1940). This portion of the rule is

derived from the proposal advanced in Recommendation Proposing in

Evidence Code, Sec. 788(5), p. 142, Cal.Law Rev.Comm'n (1965),

though not adopted. See California Evidence Code Sec. 788.

Subdivision (c). A pardon or its equivalent granted solely for

the purpose of restoring civil rights lost by virtue of a

conviction has no relevance to an inquiry into character. If,

however, the pardon or other proceeding is hinged upon a showing of

rehabilitation the situation is otherwise. The result under the

rule is to render the conviction inadmissible. The alternative of

allowing in evidence both the conviction and the rehabilitation has

not been adopted for reasons of policy, economy of time, and

difficulties of evaluation.

A similar provision is contained in California Evidence Code Sec.

788. Cf. A.L.I. Model Penal Code, Proposed Official Draft Sec.

306.6(3)(e) (1962), and discussion in A.L.I. Proceedings 310

(1961).

Pardons based on innocence have the effect, of course, of

nullifying the conviction ab initio.

Subdivision (d). The prevailing view has been that a juvenile

adjudication is not usable for impeachment. Thomas v. United

States, 74 App.D.C. 167, 121 F.2d 905 (1941); Cotton v. United

States, 355 F.2d 480 (10th Cir. 1966). This conclusion was based

upon a variety of circumstances. By virtue of its informality,

frequently diminished quantum of required proof, and other

departures from accepted standards for criminal trials under the

theory of parens patriae, the juvenile adjudication was considered

to lack the precision and general probative value of the criminal

conviction. While In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18

L.Ed.2d 527 (1967), no doubt eliminates these characteristics

insofar as objectionable, other obstacles remain. Practical

problems of administration are raised by the common provisions in

juvenile legislation that records be kept confidential and that

they be destroyed after a short time. While Gault was skeptical as

to the realities of confidentiality of juvenile records, it also

saw no constitutional obstacles to improvement. 387 U.S. at 25, 87

S.Ct. 1428. See also Note, Rights and Rehabilitation in the

Juvenile Courts, 67 Colum.L.Rev. 281, 289 (1967). In addition,

policy considerations much akin to those which dictate exclusion of

adult convictions after rehabilitation has been established

strongly suggest a rule of excluding juvenile adjudications.

Admittedly, however, the rehabilitative process may in a given case

be a demonstrated failure, or the strategic importance of a given

witness may be so great as to require the overriding of general

policy in the interests of particular justice. See Giles v.

Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). Wigmore

was outspoken in his condemnation of the disallowance of juvenile

adjudications to impeach, especially when the witness is the

complainant in a case of molesting a minor. 1 Wigmore Sec. 196; 3

Id. Secs. 924a, 980. The rule recognizes discretion in the judge to

effect an accommodation among these various factors by departing

from the general principle of exclusion. In deference to the

general pattern and policy of juvenile statutes, however, no

discretion is accorded when the witness is the accused in a

criminal case.

Subdivision (e). The presumption of correctness which ought to

attend judicial proceedings supports the position that pendency of

an appeal does not preclude use of a conviction for impeachment.

United States v. Empire Packing Co., 174 F.2d 16 (7th Cir. 1949),

cert. denied 337 U.S. 959, 69 S.Ct. 1534, 93 L.Ed. 1758; Bloch v.

United States, 226 F.2d 185 (9th Cir. 1955), cert. denied 350 U.S.

948, 76 S.Ct. 323, 100 L.Ed. 826 and 353 U.S. 959, 77 S.Ct. 868, 1

L.Ed.2d 910; and see Newman v. United States, 331 F.2d 968 (8th

Cir. 1964), Contra, Campbell v. United States, 85 U.S.App.D.C. 133,

176 F.2d 45 (1949). The pendency of an appeal is, however, a

qualifying circumstance properly considerable.

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

Rule 609(a) as submitted by the Court was modeled after Section

133(a) of Public Law 91-358, 14 D.C. Code 305(b)(1), enacted in

1970. The Rule provided that:

For the purpose of attacking the credibility of a witness,

evidence that he has been convicted of a crime is admissible but

only if the crime (1) was punishable by death or imprisonment in

excess of one year under the law under which he was convicted or

(2) involved dishonesty or false statement regardless of the

punishment.

As reported to the Committee by the Subcommittee, Rule 609(a) was

amended to read as follows:

For the purpose of attacking the credibility of a witness,

evidence that he has been convicted of a crime is admissible only

if the crime (1) was punishable by death or imprisonment in

excess of one year, unless the court determines that the danger

of unfair prejudice outweighs the probative value of the evidence

of the conviction, or (2) involved dishonesty or false statement.

In full committee, the provision was amended to permit attack

upon the credibility of a witness by prior conviction only if the

prior crime involved dishonesty or false statement. While

recognizing that the prevailing doctrine in the federal courts and

in most States allows a witness to be impeached by evidence of

prior felony convictions without restriction as to type, the

Committee was of the view that, because of the danger of unfair

prejudice in such practice and the deterrent effect upon an accused

who might wish to testify, and even upon a witness who was not the

accused, cross-examination by evidence of prior conviction should

be limited to those kinds of convictions bearing directly on

credibility, i.e., crimes involving dishonesty or false statement.

Rule 609(b) as submitted by the Court was modeled after Section

133(a) of Public Law 91-358, 14 D.C. Code 305(b)(2)(B), enacted in

1970. The Rule provided:

Evidence of a conviction under this rule is not admissible if a

period of more than ten years has elapsed since the date of the

release of the witness from confinement imposed for his most

recent conviction, or the expiration of the period of his parole,

probation, or sentence granted or imposed with respect to his

most recent conviction, whichever is the later date.

Under this formulation, a witness' entire past record of criminal

convictions could be used for impeachment (provided the conviction

met the standard of subdivision (a)), if the witness had been most

recently released from confinement, or the period of his parole or

probation had expired, within ten years of the conviction.

The Committee amended the Rule to read in the text of the 1971

Advisory Committee version to provide that upon the expiration of

ten years from the date of a conviction of a witness, or of his

release from confinement for that offense, that conviction may no

longer be used for impeachment. The Committee was of the view that

after ten years following a person's release from confinement (or

from the date of his conviction) the probative value of the

conviction with respect to that person's credibility diminished to

a point where it should no longer be admissible.

Rule 609(c) as submitted by the Court provided in part that

evidence of a witness' prior conviction is not admissible to attack

his credibility if the conviction was the subject of a pardon,

annulment, or other equivalent procedure, based on a showing of

rehabilitation, and the witness has not been convicted of a

subsequent crime. The Committee amended the Rule to provide that

the "subsequent crime" must have been "punishable by death or

imprisonment in excess of one year", on the ground that a

subsequent conviction of an offense not a felony is insufficient to

rebut the finding that the witness has been rehabilitated. The

Committee also intends that the words "based on a finding of the

rehabilitation of the person convicted" apply not only to

"certificate of rehabilitation, or other equivalent procedure," but

also to "pardon" and "annulment."

NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277

As proposed by the Supreme Court, the rule would allow the use of

prior convictions to impeach if the crime was a felony or a

misdemeanor if the misdemeanor involved dishonesty or false

statement. As modified by the House, the rule would admit prior

convictions for impeachment purposes only if the offense, whether

felony or misdemeanor, involved dishonesty or false statement.

The committee has adopted a modified version of the House-passed

rule. In your committee's view, the danger of unfair prejudice is

far greater when the accused, as opposed to other witnesses,

testifies, because the jury may be prejudiced not merely on the

question of credibility but also on the ultimate question of guilt

or innocence. Therefore, with respect to defendants, the committee

agreed with the House limitation that only offenses involving false

statement or dishonesty may be used. By that phrase, the committee

means crimes such as perjury or subordination of perjury, false

statement, criminal fraud, embezzlement or false pretense, or any

other offense, in the nature of crimen falsi the commission of

which involves some element of untruthfulness, deceit, or

falsification bearing on the accused's propensity to testify

truthfully.

With respect to other witnesses, in addition to any prior

conviction involving false statement or dishonesty, any other

felony may be used to impeach if, and only if, the court finds that

the probative value of such evidence outweighs its prejudicial

effect against the party offering that witness.

Notwithstanding this provision, proof of any prior offense

otherwise admissible under rule 404 could still be offered for the

purposes sanctioned by that rule. Furthermore, the committee

intends that notwithstanding this rule, a defendant's

misrepresentation regarding the existence or nature of prior

convictions may be met by rebuttal evidence, including the record

of such prior convictions. Similarly, such records may be offered

to rebut representations made by the defendant regarding his

attitude toward or willingness to commit a general category of

offense, although denials or other representations by the defendant

regarding the specific conduct which forms the basis of the charge

against him shall not make prior convictions admissible to rebut

such statement.

In regard to either type of representation, of course, prior

convictions may be offered in rebuttal only if the defendant's

statement is made in response to defense counsel's questions or is

made gratuitously in the course of cross-examination. Prior

convictions may not be offered as rebuttal evidence if the

prosecution has sought to circumvent the purpose of this rule by

asking questions which elicit such representations from the

defendant.

One other clarifying amendment has been added to this subsection,

that is, to provide that the admissibility of evidence of a prior

conviction is permitted only upon cross-examination of a witness.

It is not admissible if a person does not testify. It is to be

understood, however, that a court record of a prior conviction is

admissible to prove that conviction if the witness has forgotten or

denies its existence.

Although convictions over ten years old generally do not have

much probative value, there may be exceptional circumstances under

which the conviction substantially bears on the credibility of the

witness. Rather than exclude all convictions over 10 years old, the

committee adopted an amendment in the form of a final clause to the

section granting the court discretion to admit convictions over 10

years old, but only upon a determination by the court that the

probative value of the conviction supported by specific facts and

circumstances, substantially outweighs its prejudicial effect.

It is intended that convictions over 10 years old will be

admitted very rarely and only in exceptional circumstances. The

rules provide that the decision be supported by specific facts and

circumstances thus requiring the court to make specific findings on

the record as to the particular facts and circumstances it has

considered in determining that the probative value of the

conviction substantially outweighs its prejudicial impact. It is

expected that, in fairness, the court will give the party against

whom the conviction is introduced a full and adequate opportunity

to contest its admission.

NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597

Rule 609 defines when a party may use evidence of a prior

conviction in order to impeach a witness. The Senate amendments

make changes in two subsections of Rule 609.

The House bill provides that the credibility of a witness can be

attacked by proof of prior conviction of a crime only if the crime

involves dishonesty or false statement. The Senate amendment

provides that a witness' credibility may be attacked if the crime

(1) was punishable by death or imprisonment in excess of one year

under the law under which he was convicted or (2) involves

dishonesty or false statement, regardless of the punishment.

The Conference adopts the Senate amendment with an amendment. The

Conference amendment provides that the credibility of a witness,

whether a defendant or someone else, may be attacked by proof of a

prior conviction but only if the crime: (1) was punishable by death

or imprisonment in excess of one year under the law under which he

was convicted and the court determines that the probative value of

the conviction outweighs its prejudicial effect to the defendant;

or (2) involved dishonesty or false statement regardless of the

punishment.

By the phrase "dishonesty and false statement" the Conference

means crimes such as perjury or subornation of perjury, false

statement, criminal fraud, embezzlement, or false pretense, or any

other offense in the nature of crimen falsi, the commission of

which involves some element of deceit, untruthfulness, or

falsification bearing on the accused's propensity to testify

truthfully.

The admission of prior convictions involving dishonesty and false

statement is not within the discretion of the Court. Such

convictions are peculiarly probative of credibility and, under this

rule, are always to be admitted. Thus, judicial discretion granted

with respect to the admissibility of other prior convictions is not

applicable to those involving dishonesty or false statement.

With regard to the discretionary standard established by

paragraph (1) of rule 609(a), the Conference determined that the

prejudicial effect to be weighed against the probative value of the

conviction is specifically the prejudicial effect to the defendant.

The danger of prejudice to a witness other than the defendant (such

as injury to the witness' reputation in his community) was

considered and rejected by the Conference as an element to be

weighed in determining admissibility. It was the judgment of the

Conference that the danger of prejudice to a nondefendant witness

is outweighed by the need for the trier of fact to have as much

relevant evidence on the issue of credibility as possible. Such

evidence should only be excluded where it presents a danger of

improperly influencing the outcome of the trial by persuading the

trier of fact to convict the defendant on the basis of his prior

criminal record.

The House bill provides in subsection (b) that evidence of

conviction of a crime may not be used for impeachment purposes

under subsection (a) if more than ten years have elapsed since the

date of the conviction or the date the witness was released from

confinement imposed for the conviction, whichever is later. The

Senate amendment permits the use of convictions older than ten

years, if the court determines, in the interests of justice, that

the probative value of the conviction, supported by specific facts

and circumstances, substantially outweighs its prejudicial effect.

The Conference adopts the Senate amendment with an amendment

requiring notice by a party that he intends to request that the

court allow him to use a conviction older than ten years. The

Conferees anticipate that a written notice, in order to give the

adversary a fair opportunity to contest the use of the evidence,

will ordinarily include such information as the date of the

conviction, the jurisdiction, and the offense or statute involved.

In order to eliminate the possibility that the flexibility of this

provision may impair the ability of a party-opponent to prepare for

trial, the Conferees intend that the notice provision operate to

avoid surprise.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1990 AMENDMENT

The amendment to Rule 609(a) makes two changes in the rule. The

first change removes from the rule the limitation that the

conviction may only be elicited during cross-examination, a

limitation that virtually every circuit has found to be

inapplicable. It is common for witnesses to reveal on direct

examination their convictions to "remove the sting" of the

impeachment. See e.g., United States v. Bad Cob, 560 F.2d 877 (8th

Cir. 1977). The amendment does not contemplate that a court will

necessarily permit proof of prior convictions through testimony,

which might be time-consuming and more prejudicial than proof

through a written record. Rules 403 and 611(a) provide sufficient

authority for the court to protect against unfair or disruptive

methods of proof.

The second change effected by the amendment resolves an ambiguity

as to the relationship of Rules 609 and 403 with respect to

impeachment of witnesses other than the criminal defendant. See,

Green v. Bock Laundry Machine Co., 109 S. Ct. 1981, 490 U.S. 504

(1989). The amendment does not disturb the special balancing test

for the criminal defendant who chooses to testify. Thus, the rule

recognizes that, in virtually every case in which prior convictions

are used to impeach the testifying defendant, the defendant faces a

unique risk of prejudice - i.e., the danger that convictions that

would be excluded under Fed.R.Evid. 404 will be misused by a jury

as propensity evidence despite their introduction solely for

impeachment purposes. Although the rule does not forbid all use of

convictions to impeach a defendant, it requires that the government

show that the probative value of convictions as impeachment

evidence outweighs their prejudicial effect.

Prior to the amendment, the rule appeared to give the defendant

the benefit of the special balancing test when defense witnesses

other than the defendant were called to testify. In practice,

however, the concern about unfairness to the defendant is most

acute when the defendant's own convictions are offered as evidence.

Almost all of the decided cases concern this type of impeachment,

and the amendment does not deprive the defendant of any meaningful

protection, since Rule 403 now clearly protects against unfair

impeachment of any defense witness other than the defendant. There

are cases in which a defendant might be prejudiced when a defense

witness is impeached. Such cases may arise, for example, when the

witness bears a special relationship to the defendant such that the

defendant is likely to suffer some spill-over effect from

impeachment of the witness.

The amendment also protects other litigants from unfair

impeachment of their witnesses. The danger of prejudice from the

use of prior convictions is not confined to criminal defendants.

Although the danger that prior convictions will be misused as

character evidence is particularly acute when the defendant is

impeached, the danger exists in other situations as well. The

amendment reflects the view that it is desirable to protect all

litigants from the unfair use of prior convictions, and that the

ordinary balancing test of Rule 403, which provides that evidence

shall not be excluded unless its prejudicial effect substantially

outweighs its probative value, is appropriate for assessing the

admissibility of prior convictions for impeachment of any witness

other than a criminal defendant.

The amendment reflects a judgment that decisions interpreting

Rule 609(a) as requiring a trial court to admit convictions in

civil cases that have little, if anything, to do with credibility

reach undesirable results. See, e.g., Diggs v. Lyons, 741 F.2d 577

(3d Cir. 1984), cert. denied, 105 S. Ct. 2157 (1985). The amendment

provides the same protection against unfair prejudice arising from

prior convictions used for impeachment purposes as the rules

provide for other evidence. The amendment finds support in decided

cases. See, e.g., Petty v. Ideco, 761 F.2d 1146 (5th Cir. 1985);

Czaka v. Hickman, 703 F.2d 317 (8th Cir. 1983).

Fewer decided cases address the question whether Rule 609(a)

provides any protection against unduly prejudicial prior

convictions used to impeach government witnesses. Some courts have

read Rule 609(a) as giving the government no protection for its

witnesses. See, e.g., United States v. Thorne, 547 F.2d 56 (8th

Cir. 1976); United States v. Nevitt, 563 F.2d 406 (9th Cir. 1977),

cert. denied, 444 U.S. 847 (1979). This approach also is rejected

by the amendment. There are cases in which impeachment of

government witnesses with prior convictions that have little, if

anything, to do with credibility may result in unfair prejudice to

the government's interest in a fair trial and unnecessary

embarrassment to a witness. Fed.R.Evid. 412 already recognizes this

and excluded certain evidence of past sexual behavior in the

context of prosecutions for sexual assaults.

The amendment applies the general balancing test of Rule 403 to

protect all litigants against unfair impeachment of witnesses. The

balancing test protects civil litigants, the government in criminal

cases, and the defendant in a criminal case who calls other

witnesses. The amendment addresses prior convictions offered under

Rule 609, not for other purposes, and does not run afoul,

therefore, of Davis v. Alaska, 415 U.S. 308 (1974). Davis involved

the use of a prior juvenile adjudication not to prove a past law

violation, but to prove bias. The defendant in a criminal case has

the right to demonstrate the bias of a witness and to be assured a

fair trial, but not to unduly prejudice a trier of fact. See

generally Rule 412. In any case in which the trial court believes

that confrontation rights require admission of impeachment

evidence, obviously the Constitution would take precedence over the

rule.

The probability that prior convictions of an ordinary government

witness will be unduly prejudicial is low in most criminal cases.

Since the behavior of the witness is not the issue in dispute in

most cases, there is little chance that the trier of fact will

misuse the convictions offered as impeachment evidence as

propensity evidence. Thus, trial courts will be skeptical when the

government objects to impeachment of its witnesses with prior

convictions. Only when the government is able to point to a real

danger of prejudice that is sufficient to outweigh substantially

the probative value of the conviction for impeachment purposes will

the conviction be excluded.

The amendment continues to divide subdivision (a) into

subsections (1) and (2) thus facilitating retrieval under current

computerized research programs which distinguish the two

provisions. The Committee recommended no substantive change in

subdivision (a)(2), even though some cases raise a concern about

the proper interpretation of the words "dishonesty or false

statement." These words were used but not explained in the original

Advisory Committee Note accompanying Rule 609. Congress extensively

debated the rule, and the Report of the House and Senate Conference

Committee states that "[b]y the phrase 'dishonesty and false

statement,' the Conference means crimes such as perjury,

subornation of perjury, false statement, criminal fraud,

embezzlement, or false pretense, or any other offense in the nature

of crimen falsi, commission of which involves some element of

deceit, untruthfulness, or falsification bearing on the accused's

propensity to testify truthfully." The Advisory Committee concluded

that the Conference Report provides sufficient guidance to trial

courts and that no amendment is necessary, notwithstanding some

decisions that take an unduly broad view of "dishonesty," admitting

convictions such as for bank robbery or bank larceny. Subsection

(a)(2) continues to apply to any witness, including a criminal

defendant.

Finally, the Committee determined that it was unnecessary to add

to the rule language stating that, when a prior conviction is

offered under Rule 609, the trial court is to consider the

probative value of the prior conviction for impeachment, not for

other purposes. The Committee concluded that the title of the rule,

its first sentence, and its placement among the impeachment rules

clearly establish that evidence offered under Rule 609 is offered

only for purposes of impeachment.

-End-

-CITE-

28 USC APPENDIX Rule 610 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

Rule 610. Religious Beliefs or Opinions

-STATUTE-

Evidence of the beliefs or opinions of a witness on matters of

religion is not admissible for the purpose of showing that by

reason of their nature the witness' credibility is impaired or

enhanced.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987,

eff. Oct. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

While the rule forecloses inquiry into the religious beliefs or

opinions of a witness for the purpose of showing that his character

for truthfulness is affected by their nature, an inquiry for the

purpose of showing interest or bias because of them is not within

the prohibition. Thus disclosure of affiliation with a church which

is a party to the litigation would be allowable under the rule. Cf.

Tucker v. Reil, 51 Ariz. 357, 77 P.2d 203 (1938). To the same

effect, though less specifically worded, is California Evidence

Code Sec. 789. See 3 Wigmore Sec. 936.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 611 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

Rule 611. Mode and Order of Interrogation and Presentation

-STATUTE-

(a) Control by court. - The court shall exercise reasonable

control over the mode and order of interrogating witnesses and

presenting evidence so as to (1) make the interrogation and

presentation effective for the ascertainment of the truth, (2)

avoid needless consumption of time, and (3) protect witnesses from

harassment or undue embarrassment.

(b) Scope of cross-examination. - Cross-examination should be

limited to the subject matter of the direct examination and matters

affecting the credibility of the witness. The court may, in the

exercise of discretion, permit inquiry into additional matters as

if on direct examination.

(c) Leading questions. - Leading questions should not be used on

the direct examination of a witness except as may be necessary to

develop the witness' testimony. Ordinarily leading questions should

be permitted on cross-examination. When a party calls a hostile

witness, an adverse party, or a witness identified with an adverse

party, interrogation may be by leading questions.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987,

eff. Oct. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Subdivision (a). Spelling out detailed rules to govern the mode

and order of interrogating witnesses presenting evidence is neither

desirable nor feasible. The ultimate responsibility for the

effective working of the adversary system rests with the judge. The

rule sets forth the objectives which he should seek to attain.

Item (1) restates in broad terms the power and obligation of the

judge as developed under common law principles. It covers such

concerns as whether testimony shall be in the form of a free

narrative or responses to specific questions, McCormick Sec. 5, the

order of calling witnesses and presenting evidence, 6 Wigmore Sec.

1867, the use of demonstrative evidence, McCormick Sec. 179, and

the many other questions arising during the course of a trial which

can be solved only by the judge's common sense and fairness in view

of the particular circumstances.

Item (2) is addressed to avoidance of needless consumption of

time, a matter of daily concern in the disposition of cases. A

companion piece is found in the discretion vested in the judge to

exclude evidence as a waste of time in Rule 403(b).

Item (3) calls for a judgement under the particular circumstances

whether interrogation tactics entail harassment or undue

embarrassment. Pertinent circumstances include the importance of

the testimony, the nature of the inquiry, its relevance to

credibility, waste of time, and confusion. McCormick Sec. 42. In

Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed.

624 (1931), the Court pointed out that, while the trial judge

should protect the witness from questions which "go beyond the

bounds of proper cross-examination merely to harass, annoy or

humiliate," this protection by no means forecloses efforts to

discredit the witness. Reference to the transcript of the

prosecutor's cross-examination in Berger v. United States, 295 U.S.

78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), serves to lay at rest any

doubts as to the need for judicial control in this area.

The inquiry into specific instances of conduct of a witness

allowed under Rule 608(b) is, of course, subject to this rule.

Subdivision (b). The tradition in the federal courts and in

numerous state courts has been to limit the scope of

cross-examination to matters testified to on direct, plus matters

bearing upon the credibility of the witness. Various reasons have

been advanced to justify the rule of limited cross-examination. (1)

A party vouches for his own witness but only to the extent of

matters elicited on direct. Resurrection Gold Mining Co. v. Fortune

Gold Mining Co., 129 F. 668, 675 (8th Cir. 1904), quoted in

Maguire, Weinstein, et al., Cases on Evidence 277, n. 38 (5th ed.

1965). But the concept of vouching is discredited, and Rule 607

rejects it. (2) A party cannot ask his own witness leading

questions. This is a problem properly solved in terms of what is

necessary for a proper development of the testimony rather than by

a mechanistic formula similar to the vouching concept. See

discussion under subdivision (c). (3) A practice of limited

cross-examination promotes orderly presentation of the case. Finch

v. Weiner, 109 Conn. 616, 145 A. 31 (1929). While this latter

reason has merit, the matter is essentially one of the order of

presentation and not one in which involvement at the appellate

level is likely to prove fruitful. See for example, Moyer v. Aetna

Life Ins. Co., 126 F.2d 141 (3rd Cir. 1942); Butler v. New York

Central R. Co., 253 F.2d 281 (7th Cir. 1958); United States v.

Johnson, 285 F.2d 35 (9th Cir. 1960); Union Automobile Indemnity

Ass'n. v. Capitol Indemnity Ins. Co., 310 F.2d 318 (7th Cir. 1962).

In evaluating these considerations, McCormick says:

"The foregoing considerations favoring the wide-open or

restrictive rules may well be thought to be fairly evenly balanced.

There is another factor, however, which seems to swing the balance

overwhelmingly in favor of the wide-open rule. This is the

consideration of economy of time and energy. Obviously, the

wide-open rule presents little or no opportunity for dispute in its

application. The restrictive practice in all its forms, on the

other hand, is productive in many court rooms, of continual

bickering over the choice of the numerous variations of the 'scope

of the direct' criterion, and of their application to particular

cross-questions. These controversies are often reventilated on

appeal, and reversals for error in their determination are

frequent. Observance of these vague and ambiguous restrictions is a

matter of constant and hampering concern to the cross-examiner. If

these efforts, delays and misprisions were the necessary incidents

to the guarding of substantive rights or the fundamentals of fair

trial, they might be worth the cost. As the price of the choice of

an obviously debatable regulation of the order of evidence, the

sacrifice seems misguided. The American Bar Association's Committee

for the Improvement of the Law of Evidence for the year 1937-38

said this:

"The rule limiting cross-examination to the precise subject of

the direct examination is probably the most frequent rule (except

the Opinion rule) leading in the trial practice today to refined

and technical quibbles which obstruct the progress of the trial,

confuse the jury, and give rise to appeal on technical grounds

only. Some of the instances in which Supreme Courts have ordered

new trials for the mere transgression of this rule about the order

of evidence have been astounding.

"We recommend that the rule allowing questions upon any part of

the issue known to the witness * * * be adopted. * * *' "

McCormick, Sec. 27, p. 51. See also 5 Moore's Federal Practice

&#182; 43.10 (2nd ed. 1964).

The provision of the second sentence, that the judge may in the

interests of justice limit inquiry into new matters on

cross-examination, is designed for those situations in which the

result otherwise would be confusion, complication, or protraction

of the case, not as a matter of rule but as demonstrable in the

actual development of the particular case.

The rule does not purport to determine the extent to which an

accused who elects to testify thereby waives his privilege against

self-incrimination. The question is a constitutional one, rather

than a mere matter of administering the trial. Under Simmons v.

United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968),

no general waiver occurs when the accused testifies on such

preliminary matters as the validity of a search and seizure or the

admissibility of a confession. Rule 104(d), supra. When he

testifies on the merits, however, can he foreclose inquiry into an

aspect or element of the crime by avoiding it on direct? The

affirmative answer given in Tucker v. United States, 5 F.2d 818

(8th Cir. 1925), is inconsistent with the description of the waiver

as extending to "all other relevant facts" in Johnson v. United

States, 318 U.S. 189, 195, 63 S.Ct. 549, 87 L.Ed. 704 (1943). See

also Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d

589 (1958). The situation of an accused who desires to testify on

some but not all counts of a multiple-count indictment is one to be

approached, in the first instance at least, as a problem of

severance under Rule 14 of the Federal Rules of Criminal Procedure.

Cross v. United States, 118 U.S.App.D.C. 324, 335 F.2d 987 (1964).

Cf. United States v. Baker, 262 F.Supp. 657, 686 (D.D.C. 1966). In

all events, the extent of the waiver of the privilege against

self-incrimination ought not to be determined as a by-product of a

rule on scope of cross-examination.

Subdivision (c). The rule continues the traditional view that the

suggestive powers of the leading question are as a general

proposition undesirable. Within this tradition, however, numerous

exceptions have achieved recognition: The witness who is hostile,

unwilling, or biased; the child witness or the adult with

communication problems; the witness whose recollection is

exhausted; and undisputed preliminary matters. 3 Wigmore Sec. Sec.

774-778. An almost total unwillingness to reverse for infractions

has been manifested by appellate courts. See cases cited in 3

Wigmore Sec. 770. The matter clearly falls within the area of

control by the judge over the mode and order of interrogation and

presentation and accordingly is phrased in words of suggestion

rather than command.

The rule also conforms to tradition in making the use of leading

questions on cross-examination a matter of right. The purpose of

the qualification "ordinarily" is to furnish a basis for denying

the use of leading questions when the cross-examination is

cross-examination in form only and not in fact, as for example the

"cross-examination" of a party by his own counsel after being

called by the opponent (savoring more of re-direct) or of an

insured defendant who proves to be friendly to the plaintiff.

The final sentence deals with categories of witnesses

automatically regarded and treated as hostile. Rule 43(b) of the

Federal Rules of Civil Procedure has included only "an adverse

party or an officer, director, or managing agent of a public or

private corporation or of a partnership or association which is an

adverse party." This limitation virtually to persons whose

statements would stand as admissions is believed to be an unduly

narrow concept of those who may safely be regarded as hostile

without further demonstration. See, for example, Maryland Casualty

Co. v. Kador, 225 F.2d 120 (5th Cir. 1955), and Degelos v. Fidelity

and Casualty Co., 313 F.2d 809 (5th Cir. 1963), holding despite the

language of Rule 43(b) that an insured fell within it, though not a

party in an action under the Louisiana direct action statute. The

phrase of the rule, "witness identified with" an adverse party, is

designed to enlarge the category of persons thus callable.

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

As submitted by the Court, Rule 611(b) provided:

A witness may be cross-examined on any matter relevant to any

issue in the case, including credibility. In the interests of

justice, the judge may limit cross-examination with respect to

matters not testified to on direct examination.

The Committee amended this provision to return to the rule which

prevails in the federal courts and thirty-nine State jurisdictions.

As amended, the Rule is in the text of the 1969 Advisory Committee

draft. It limits cross-examination to credibility and to matters

testified to on direct examination, unless the judge permits more,

in which event the cross-examiner must proceed as if on direct

examination. This traditional rule facilitates orderly presentation

by each party at trial. Further, in light of existing discovery

procedures, there appears to be no need to abandon the traditional

rule.

The third sentence of Rule 611(c) as submitted by the Court

provided that:

In civil cases, a party is entitled to call an adverse party or

witness identified with him and interrogate by leading questions.

The Committee amended this Rule to permit leading questions to be

used with respect to any hostile witness, not only an adverse party

or person identified with such adverse party. The Committee also

substituted the word "When" for the phrase "In civil cases" to

reflect the possibility that in criminal cases a defendant may be

entitled to call witnesses identified with the government, in which

event the Committee believed the defendant should be permitted to

inquire with leading questions.

NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277

Rule 611(b) as submitted by the Supreme Court permitted a broad

scope of cross-examination: "cross-examination on any matter

relevant to any issue in the case" unless the judge, in the

interests of justice, limited the scope of cross-examination.

The House narrowed the Rule to the more traditional practice of

limiting cross-examination to the subject matter of direct

examination (and credibility), but with discretion in the judge to

permit inquiry into additional matters in situations where that

would aid in the development of the evidence or otherwise

facilitate the conduct of the trial.

The committee agrees with the House amendment. Although there are

good arguments in support of broad cross-examination from

perspectives of developing all relevant evidence, we believe the

factors of insuring an orderly and predictable development of the

evidence weigh in favor of the narrower rule, especially when

discretion is given to the trial judge to permit inquiry into

additional matters. The committee expressly approves this

discretion and believes it will permit sufficient flexibility

allowing a broader scope of cross-examination whenever appropriate.

The House amendment providing broader discretionary

cross-examination permitted inquiry into additional matters only as

if on direct examination. As a general rule, we concur with this

limitation, however, we would understand that this limitation would

not preclude the utilization of leading questions if the conditions

of subsection (c) of this rule were met, bearing in mind the

judge's discretion in any case to limit the scope of

cross-examination [see McCormick on Evidence, Secs. 24-26

(especially 24) (2d ed. 1972)].

Further, the committee has received correspondence from Federal

judges commenting on the applicability of this rule to section 1407

of title 28. It is the committee's judgment that this rule as

reported by the House is flexible enough to provide sufficiently

broad cross-examination in appropriate situations in multidistrict

litigation.

As submitted by the Supreme Court, the rule provided: "In civil

cases, a party is entitled to call an adverse party or witness

identified with him and interrogate by leading questions."

The final sentence of subsection (c) was amended by the House for

the purpose of clarifying the fact that a "hostile witness" - that

is a witness who is hostile in fact - could be subject to

interrogation by leading questions. The rule as submitted by the

Supreme Court declared certain witnesses hostile as a matter of law

and thus subject to interrogation by leading questions without any

showing of hostility in fact. These were adverse parties or

witnesses identified with adverse parties. However, the wording of

the first sentence of subsection (c) while generally, prohibiting

the use of leading questions on direct examination, also provides

"except as may be necessary to develop his testimony." Further, the

first paragraph of the Advisory Committee note explaining the

subsection makes clear that they intended that leading questions

could be asked of a hostile witness or a witness who was unwilling

or biased and even though that witness was not associated with an

adverse party. Thus, we question whether the House amendment was

necessary.

However, concluding that it was not intended to affect the

meaning of the first sentence of the subsection and was intended

solely to clarify the fact that leading questions are permissible

in the interrogation of a witness, who is hostile in fact, the

committee accepts that House amendment.

The final sentence of this subsection was also amended by the

House to cover criminal as well as civil cases. The committee

accepts this amendment, but notes that it may be difficult in

criminal cases to determine when a witness is "identified with an

adverse party," and thus the rule should be applied with caution.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 612 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

Rule 612. Writing Used To Refresh Memory

-STATUTE-

Except as otherwise provided in criminal proceedings by section

3500 of title 18, United States Code, if a witness uses a writing

to refresh memory for the purpose of testifying, either -

(1) while testifying, or

(2) before testifying, if the court in its discretion

determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the

hearing, to inspect it, to cross-examine the witness thereon, and

to introduce in evidence those portions which relate to the

testimony of the witness. If it is claimed that the writing

contains matters not related to the subject matter of the testimony

the court shall examine the writing in camera, excise any portions

not so related, and order delivery of the remainder to the party

entitled thereto. Any portion withheld over objections shall be

preserved and made available to the appellate court in the event of

an appeal. If a writing is not produced or delivered pursuant to

order under this rule, the court shall make any order justice

requires, except that in criminal cases when the prosecution elects

not to comply, the order shall be one striking the testimony or, if

the court in its discretion determines that the interests of

justice so require, declaring a mistrial.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987,

eff. Oct. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The treatment of writings used to refresh recollection while on

the stand is in accord with settled doctrine. McCormick Sec. 9, p.

15. The bulk of the case law has, however, denied the existence of

any right to access by the opponent when the writing is used prior

to taking the stand, though the judge may have discretion in the

matter. Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86

L.Ed. 1322 (1942); Needelman v. United States, 261 F.2d 802 (5th

Cir. 1958), cert. dismissed 362 U.S. 600, 80 S.Ct. 960, 4 L.Ed.2d

980, rehearing denied 363 U.S. 858, 80 S.Ct. 1606, 4 L.Ed.2d 1739,

Annot., 82 A.L.R.2d 473, 562 and 7 A.L.R.3d 181, 247. An increasing

group of cases has repudiated the distinction, People v. Scott, 29

Ill.2d 97, 193 N.E.2d 814 (1963); State v. Mucci, 25 N.J. 423, 136

A.2d 761 (1957); State v. Hunt, 25 N.J. 514, 138 A.2d 1 (1958);

State v. Desolvers, 40 R.I. 89, 100, A. 64 (1917), and this

position is believed to be correct. As Wigmore put it, "the risk of

imposition and the need of safeguard is just as great" in both

situations. 3 Wigmore Sec. 762, p. 111. To the same effect is

McCormick Sec. 9, p. 17.

The purpose of the phrase "for the purpose of testifying" is to

safeguard against using the rule as a pretext for wholesale

exploration of an opposing party's files and to insure that access

is limited only to those writings which may fairly be said in fact

to have an impact upon the testimony of the witness.

The purpose of the rule is the same as that of the Jencks

statute, 18 U.S.C. Sec. 3500: to promote the search of credibility

and memory. The same sensitivity to disclosure of government files

may be involved; hence the rule is expressly made subject to the

statute, subdivision (a) of which provides: "In any criminal

prosecution brought by the United States, no statement or report in

the possession of the United States which was made by a Government

witness or prospective Government witness (other than the

defendant) shall be the subject of a subpena, discovery, or

inspection until said witness has testified on direct examination

in the trial of the case." Items falling within the purview of the

statute are producible only as provided by its terms, Palermo v.

United States, 360 U.S. 343, 351 (1959), and disclosure under the

rule is limited similarly by the statutory conditions. With this

limitation in mind, some differences of application may be noted.

The Jencks statute applies only to statements of witnesses; the

rule is not so limited. The statute applies only to criminal cases;

the rule applies to all cases. The statute applies only to

government witnesses; the rule applies to all witnesses. The

statute contains no requirement that the statement be consulted for

purposes of refreshment before or while testifying; the rule so

requires. Since many writings would qualify under either statute or

rule, a substantial overlap exists, but the identity of procedures

makes this of no importance.

The consequences of nonproduction by the government in a criminal

case are those of the Jencks statute, striking the testimony or in

exceptional cases a mistrial. 18 U.S.C. Sec. 3500(d). In other

cases these alternatives are unduly limited, and such possibilities

as contempt, dismissal, finding issues against the offender, and

the like are available. See Rule 16(g) of the Federal Rules of

Criminal Procedure and Rule 37(b) of the Federal Rules of Civil

Procedure for appropriate sanctions.

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

As submitted to Congress, Rule 612 provided that except as set

forth in 18 U.S.C. 3500, if a witness uses a writing to refresh his

memory for the purpose of testifying, "either before or while

testifying," an adverse party is entitled to have the writing

produced at the hearing, to inspect it, to cross-examine the

witness on it, and to introduce in evidence those portions relating

to the witness' testimony. The Committee amended the Rule so as

still to require the production of writings used by a witness while

testifying, but to render the production of writings used by a

witness to refresh his memory before testifying discretionary with

the court in the interests of justice, as is the case under

existing federal law. See Goldman v. United States, 316 U.S. 129

(1942). The Committee considered that permitting an adverse party

to require the production of writings used before testifying could

result in fishing expeditions among a multitude of papers which a

witness may have used in preparing for trial.

The Committee intends that nothing in the Rule be construed as

barring the assertion of a privilege with respect to writings used

by a witness to refresh his memory.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 613 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

Rule 613. Prior Statements of Witnesses

-STATUTE-

(a) Examining witness concerning prior statement. - In examining

a witness concerning a prior statement made by the witness, whether

written or not, the statement need not be shown nor its contents

disclosed to the witness at that time, but on request the same

shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of

witness. - Extrinsic evidence of a prior inconsistent statement by

a witness is not admissible unless the witness is afforded an

opportunity to explain or deny the same and the opposite party is

afforded an opportunity to interrogate the witness thereon, or the

interests of justice otherwise require. This provision does not

apply to admissions of a party-opponent as defined in rule

801(d)(2).

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1936; Mar. 2, 1987,

eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Subdivision (a). The Queen's Case, 2 Br. & B. 284, 129 Eng. Rep.

976 (1820), laid down the requirement that a cross-examiner, prior

to questioning the witness about his own prior statement in

writing, must first show it to the witness. Abolished by statute in

the country of its origin, the requirement nevertheless gained

currency in the United States. The rule abolishes this useless

impediment, to cross-examination. Ladd, Some Observations on

Credibility: Impeachment of Witnesses, 52 Cornell L.Q. 239, 246-247

(1967); McCormick Sec. 28; 4 Wigmore Secs. 1259-1260. Both oral and

written statements are included.

The provision for disclosure to counsel is designed to protect

against unwarranted insinuations that a statement has been made

when the fact is to the contrary.

The rule does not defeat the application of Rule 1002 relating to

production of the original when the contents of a writing are

sought to be proved. Nor does it defeat the application of Rule

26(b)(3) of the Rules of Civil Procedure, as revised, entitling a

person on request to a copy of his own statement, though the

operation of the latter may be suspended temporarily.

Subdivision (b). The familiar foundation requirement that an

impeaching statement first be shown to the witness before it can be

proved by extrinsic evidence is preserved but with some

modifications. See Ladd, Some Observations on Credibility:

Impeachment of Witnesses, 52 Cornell L.Q. 239, 247 (1967). The

traditional insistence that the attention of the witness be

directed to the statement on cross-examination is relaxed in favor

of simply providing the witness an opportunity to explain and the

opposite party an opportunity to examine on the statement, with no

specification of any particular time or sequence. Under this

procedure, several collusive witnesses can be examined before

disclosure of a joint prior inconsistent statement. See Comment to

California Evidence Code Sec. 770. Also, dangers of oversight are

reduced.

See McCormick Sec. 37, p. 68.

In order to allow for such eventualities as the witness becoming

unavailable by the time the statement is discovered, a measure of

discretion is conferred upon the judge. Similar provisions are

found in California Evidence Code Sec. 770 and New Jersey Evidence

Rule 22(b).

Under principles of expression unius the rule does not apply to

impeachment by evidence of prior inconsistent conduct. The use of

inconsistent statements to impeach a hearsay declaration is treated

in Rule 806.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT

The amendment is technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 614 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

Rule 614. Calling and Interrogation of Witnesses by Court

-STATUTE-

(a) Calling by court. - The court may, on its own motion or at

the suggestion of a party, call witnesses, and all parties are

entitled to cross-examine witnesses thus called.

(b) Interrogation by court. - The court may interrogate

witnesses, whether called by itself or by a party.

(c) Objections. - Objections to the calling of witnesses by the

court or to interrogation by it may be made at the time or at the

next available opportunity when the jury is not present.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Subdivision (a). While exercised more frequently in criminal than

in civil cases, the authority of the judge to call witnesses is

well established. McCormick Sec. 8, p. 14; Maguire, Weinstein, et

al., Cases on Evidence 303-304 (5th ed. 1965); 9 Wigmore Sec. 2484.

One reason for the practice, the old rule against impeaching one's

own witness, no longer exists by virtue of Rule 607, supra. Other

reasons remain, however, to justify the continuation of the

practice of calling court's witnesses. The right to cross-examine,

with all it implies, is assured. The tendency of juries to

associate a witness with the party calling him, regardless of

technical aspects of vouching, is avoided. And the judge is not

imprisoned within the case as made by the parties.

Subdivision (b). The authority of the judge to question witnesses

is also well established. McCormick Sec. 8, pp. 12-13; Maguire,

Weinstein, et al., Cases on Evidence 737-739 (5th ed. 1965); 3

Wigmore Sec. 784. The authority is, of course, abused when the

judge abandons his proper role and assumes that of advocate, but

the manner in which interrogation should be conducted and the

proper extent of its exercise are not susceptible of formulation in

a rule. The omission in no sense precludes courts of review from

continuing to reverse for abuse.

Subdivision (c). The provision relating to objections is designed

to relieve counsel of the embarrassment attendant upon objecting to

questions by the judge in the presence of the jury, while at the

same time assuring that objections are made in apt time to afford

the opportunity to take possible corrective measures. Compare the

"automatic" objection feature of Rule 605 when the judge is called

as a witness.

-End-

-CITE-

28 USC APPENDIX Rule 615 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VI. WITNESSES

-HEAD-

Rule 615. Exclusion of Witnesses

-STATUTE-

At the request of a party the court shall order witnesses

excluded so that they cannot hear the testimony of other witnesses,

and it may make the order of its own motion. This rule does not

authorize exclusion of (1) a party who is a natural person, or (2)

an officer or employee of a party which is not a natural person

designated as its representative by its attorney, or (3) a person

whose presence is shown by a party to be essential to the

presentation of the party's cause, or (4) a person authorized by

statute to be present.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937; Mar. 2, 1987,

eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Pub. L.

100-690, title VII, Sec. 7075(a), Nov. 18, 1988, 102 Stat. 4405;

Apr. 24, 1998, eff. Dec. 1, 1998.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The efficacy of excluding or sequestering witnesses has long been

recognized as a means of discouraging and exposing fabrication,

inaccuracy, and collusion. 6 Wigmore Secs. 1837-1838. The authority

of the judge is admitted, the only question being whether the

matter is committed to his discretion or one of right. The rule

takes the latter position. No time is specified for making the

request.

Several categories of persons are excepted. (1) Exclusion of

persons who are parties would raise serious problems of

confrontation and due process. Under accepted practice they are not

subject to exclusion. 6 Wigmore Sec. 1841. (2) As the equivalent of

the right of a natural-person party to be present, a party which is

not a natural person is entitled to have a representative present.

Most of the cases have involved allowing a police officer who has

been in charge of an investigation to remain in court despite the

fact that he will be a witness. United States v. Infanzon, 235 F.2d

318 (2d Cir. 1956); Portomene v. United States, 221 F.2d 582 (5th

Cir. 1955); Powell v. United States, 208 F.2d 618 (6th Cir. 1953);

Jones v. United States, 252 F.Supp. 781 (W.D.Okl. 1966).

Designation of the representative by the attorney rather than by

the client may at first glance appear to be an inversion of the

attorney-client relationship, but it may be assumed that the

attorney will follow the wishes of the client, and the solution is

simple and workable. See California Evidence Code Sec. 777. (3) The

category contemplates such persons as an agent who handled the

transaction being litigated or an expert needed to advise counsel

in the management of the litigation. See 6 Wigmore Sec. 1841, n. 4.

NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277

Many district courts permit government counsel to have an

investigative agent at counsel table throughout the trial although

the agent is or may be a witness. The practice is permitted as an

exception to the rule of exclusion and compares with the situation

defense counsel finds himself in - he always has the client with

him to consult during the trial. The investigative agent's presence

may be extremely important to government counsel, especially when

the case is complex or involves some specialized subject matter.

The agent, too, having lived with the case for a long time, may be

able to assist in meeting trial surprises where the best-prepared

counsel would otherwise have difficulty. Yet, it would not seem the

Government could often meet the burden under rule 615 of showing

that the agent's presence is essential. Furthermore, it could be

dangerous to use the agent as a witness as early in the case as

possible, so that he might then help counsel as a nonwitness, since

the agent's testimony could be needed in rebuttal. Using another,

nonwitness agent from the same investigative agency would not

generally meet government counsel's needs.

This problem is solved if it is clear that investigative agents

are within the group specified under the second exception made in

the rule, for "an officer or employee of a party which is not a

natural person designated as its representative by its attorney."

It is our understanding that this was the intention of the House

committee. It is certainly this committee's construction of the

rule.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT

The amendment is technical. No substantive change is intended.

COMMITTEE NOTES ON RULES - 1998 AMENDMENT

The amendment is in response to: (1) the Victim's Rights and

Restitution Act of 1990, 42 U.S.C. Sec. 10606, which guarantees,

within certain limits, the right of a crime victim to attend the

trial; and (2) the Victim Rights Clarification Act of 1997 (18

U.S.C. Sec. 3510).

AMENDMENT BY PUBLIC LAW

1988 - Pub. L. 100-690, which directed amendment of rule by

inserting "a" before "party which is not a natural person.", could

not be executed because the words "party which is not a natural

person." did not appear. However, the word "a" was inserted by the

intervening amendment by the Court by order dated Apr. 25, 1988,

eff. Nov. 1, 1988.

-End-

-CITE-

28 USC APPENDIX ARTICLE VII. OPINIONS AND EXPERT

TESTIMONY 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

-HEAD-

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

-End-

-CITE-

28 USC APPENDIX Rule 701 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

-HEAD-

Rule 701. Opinion Testimony by Lay Witnesses

-STATUTE-

If the witness is not testifying as an expert, the witness'

testimony in the form of opinions or inferences is limited to those

opinions or inferences which are (a) rationally based on the

perception of the witness, and (b) helpful to a clear understanding

of the witness' testimony or the determination of a fact in issue,

and (c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937; Mar. 2, 1987,

eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The rule retains the traditional objective of putting the trier

of fact in possession of an accurate reproduction of the event.

Limitation (a) is the familiar requirement of first-hand

knowledge or observation.

Limitation (b) is phrased in terms of requiring testimony to be

helpful in resolving issues. Witnesses often find difficulty in

expressing themselves in language which is not that of an opinion

or conclusion. While the courts have made concessions in certain

recurring situations, necessity as a standard for permitting

opinions and conclusions has proved too elusive and too unadaptable

to particular situations for purposes of satisfactory judicial

administration. McCormick Sec. 11. Moreover, the practical

impossibility of determinating by rule what is a "fact,"

demonstrated by a century of litigation of the question of what is

a fact for purposes of pleading under the Field Code, extends into

evidence also. 7 Wigmore Sec. 1919. The rule assumes that the

natural characteristics of the adversary system will generally lead

to an acceptable result, since the detailed account carries more

conviction than the broad assertion, and a lawyer can be expected

to display his witness to the best advantage. If he fails to do so,

cross-examination and argument will point up the weakness. See

Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 415-417 (1952). If,

despite these considerations, attempts are made to introduce

meaningless assertions which amount to little more than choosing up

sides, exclusion for lack of helpfulness is called for by the rule.

The language of the rule is substantially that of Uniform. Rule

56(1). Similar provisions are California Evidence Code Sec. 800;

Kansas Code of Civil Procedure Sec. 60-456(a); New Jersey Evidence

Rule 56(1).

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

COMMITTEE NOTES ON RULES - 2000 AMENDMENT

Rule 701 has been amended to eliminate the risk that the

reliability requirements set forth in Rule 702 will be evaded

through the simple expedient of proffering an expert in lay witness

clothing. Under the amendment, a witness' testimony must be

scrutinized under the rules regulating expert opinion to the extent

that the witness is providing testimony based on scientific,

technical, or other specialized knowledge within the scope of Rule

702. See generally Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57

F.3d 1190 (3d Cir. 1995). By channeling testimony that is actually

expert testimony to Rule 702, the amendment also ensures that a

party will not evade the expert witness disclosure requirements set

forth in Fed.R.Civ.P. 26 and Fed.R.Crim.P. 16 by simply calling an

expert witness in the guise of a layperson. See Joseph, Emerging

Expert Issues Under the 1993 Disclosure Amendments to the Federal

Rules of Civil Procedure, 164 F.R.D. 97, 108 (1996) (noting that

"there is no good reason to allow what is essentially surprise

expert testimony," and that "the Court should be vigilant to

preclude manipulative conduct designed to thwart the expert

disclosure and discovery process"). See also United States v.

Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997) (law

enforcement agents testifying that the defendant's conduct was

consistent with that of a drug trafficker could not testify as lay

witnesses; to permit such testimony under Rule 701 "subverts the

requirements of Federal Rule of Criminal Procedure 16(a)(1)(E)").

The amendment does not distinguish between expert and lay

witnesses, but rather between expert and lay testimony. Certainly

it is possible for the same witness to provide both lay and expert

testimony in a single case. See, e.g., United States v.

Figueroa-Lopez, 125 F.3d 1241, 1246 (9th Cir. 1997) (law

enforcement agents could testify that the defendant was acting

suspiciously, without being qualified as experts; however, the

rules on experts were applicable where the agents testified on the

basis of extensive experience that the defendant was using code

words to refer to drug quantities and prices). The amendment makes

clear that any part of a witness' testimony that is based upon

scientific, technical, or other specialized knowledge within the

scope of Rule 702 is governed by the standards of Rule 702 and the

corresponding disclosure requirements of the Civil and Criminal

Rules.

The amendment is not intended to affect the "prototypical

example[s] of the type of evidence contemplated by the adoption of

Rule 701 relat[ing] to the appearance of persons or things,

identity, the manner of conduct, competency of a person, degrees of

light or darkness, sound, size, weight, distance, and an endless

number of items that cannot be described factually in words apart

from inferences." Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57

F.3d 1190, 1196 (3d Cir. 1995).

For example, most courts have permitted the owner or officer of a

business to testify to the value or projected profits of the

business, without the necessity of qualifying the witness as an

accountant, appraiser, or similar expert. See, e.g., Lightning

Lube, Inc. v. Witco Corp. 4 F.3d 1153 (3d Cir. 1993) (no abuse of

discretion in permitting the plaintiff's owner to give lay opinion

testimony as to damages, as it was based on his knowledge and

participation in the day-to-day affairs of the business). Such

opinion testimony is admitted not because of experience, training

or specialized knowledge within the realm of an expert, but because

of the particularized knowledge that the witness has by virtue of

his or her position in the business. The amendment does not purport

to change this analysis. Similarly, courts have permitted lay

witnesses to testify that a substance appeared to be a narcotic, so

long as a foundation of familiarity with the substance is

established. See, e.g., United States v. Westbrook, 896 F.2d 330

(8th Cir. 1990) (two lay witnesses who were heavy amphetamine users

were properly permitted to testify that a substance was

amphetamine; but it was error to permit another witness to make

such an identification where she had no experience with

amphetamines). Such testimony is not based on specialized knowledge

within the scope of Rule 702, but rather is based upon a

layperson's personal knowledge. If, however, that witness were to

describe how a narcotic was manufactured, or to describe the

intricate workings of a narcotic distribution network, then the

witness would have to qualify as an expert under Rule 702. United

States v. Figueroa-Lopez, supra.

The amendment incorporates the distinctions set forth in State v.

Brown, 836 S.W.2d 530, 549 (1992), a case involving former

Tennessee Rule of Evidence 701, a rule that precluded lay witness

testimony based on "special knowledge." In Brown, the court

declared that the distinction between lay and expert witness

testimony is that lay testimony "results from a process of

reasoning familiar in everyday life," while expert testimony

"results from a process of reasoning which can be mastered only by

specialists in the field." The court in Brown noted that a lay

witness with experience could testify that a substance appeared to

be blood, but that a witness would have to qualify as an expert

before he could testify that bruising around the eyes is indicative

of skull trauma. That is the kind of distinction made by the

amendment to this Rule.

GAP Report - Proposed Amendment to Rule 701. The Committee made

the following changes to the published draft of the proposed

amendment to Evidence Rule 701:

1. The words "within the scope of Rule 702" were added at the end

of the proposed amendment, to emphasize that the Rule does not

require witnesses to qualify as experts unless their testimony is

of the type traditionally considered within the purview of Rule

702. The Committee Note was amended to accord with this textual

change.

2. The Committee Note was revised to provide further examples of

the kind of testimony that could and could not be proffered under

the limitation imposed by the proposed amendment.

-End-

-CITE-

28 USC APPENDIX Rule 702 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

-HEAD-

Rule 702. Testimony by Experts

-STATUTE-

If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine

a fact in issue, a witness qualified as an expert by knowledge,

skill, experience, training, or education, may testify thereto in

the form of an opinion or otherwise, if (1) the testimony is based

upon sufficient facts or data, (2) the testimony is the product of

reliable principles and methods, and (3) the witness has applied

the principles and methods reliably to the facts of the case.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937; Apr. 17,

2000, eff. Dec. 1, 2000.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

An intelligent evaluation of facts is often difficult or

impossible without the application of some scientific, technical,

or other specialized knowledge. The most common source of this

knowledge is the expert witness, although there are other

techniques for supplying it.

Most of the literature assumes that experts testify only in the

form of opinions. The assumption is logically unfounded. The rule

accordingly recognizes that an expert on the stand may give a

dissertation or exposition of scientific or other principles

relevant to the case, leaving the trier of fact to apply them to

the facts. Since much of the criticism of expert testimony has

centered upon the hypothetical question, it seems wise to recognize

that opinions are not indispensable and to encourage the use of

expert testimony in non-opinion form when counsel believes the

trier can itself draw the requisite inference. The use of opinions

is not abolished by the rule, however. It will continue to be

permissible for the experts to take the further step of suggesting

the inference which should be drawn from applying the specialized

knowledge to the facts. See Rules 703 to 705.

Whether the situation is a proper one for the use of expert

testimony is to be determined on the basis of assisting the trier.

"There is no more certain test for determining when experts may be

used than the common sense inquiry whether the untrained layman

would be qualified to determine intelligently and to the best

possible degree the particular issue without enlightenment from

those having a specialized understanding of the subject involved in

the dispute." Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418

(1952). When opinions are excluded, it is because they are

unhelpful and therefore superfluous and a waste of time. 7 Wigmore

Sec. 1918.

The rule is broadly phrased. The fields of knowledge which may be

drawn upon are not limited merely to the "scientific" and

"technical" but extend to all "specialized" knowledge. Similarly,

the expert is viewed, not in a narrow sense, but as a person

qualified by "knowledge, skill, experience, training or education."

Thus within the scope of the rule are not only experts in the

strictest sense of the word, e.g., physicians, physicists, and

architects, but also the large group sometimes called "skilled"

witnesses, such as bankers or landowners testifying to land values.

COMMITTEE NOTES ON RULES - 2000 AMENDMENT

Rule 702 has been amended in response to Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), and to the many cases

applying Daubert, including Kumho Tire Co. v. Carmichael, 119 S.Ct.

1167 (1999). In Daubert the Court charged trial judges with the

responsibility of acting as gatekeepers to exclude unreliable

expert testimony, and the Court in Kumho clarified that this

gatekeeper function applies to all expert testimony, not just

testimony based in science. See also Kumho, 119 S.Ct. at 1178

(citing the Committee Note to the proposed amendment to Rule 702,

which had been released for public comment before the date of the

Kumho decision). The amendment affirms the trial court's role as

gatekeeper and provides some general standards that the trial court

must use to assess the reliability and helpfulness of proffered

expert testimony. Consistently with Kumho, the Rule as amended

provides that all types of expert testimony present questions of

admissibility for the trial court in deciding whether the evidence

is reliable and helpful. Consequently, the admissibility of all

expert testimony is governed by the principles of Rule 104(a).

Under that Rule, the proponent has the burden of establishing that

the pertinent admissibility requirements are met by a preponderance

of the evidence. See Bourjaily v. United States, 483 U.S. 171

(1987).

Daubert set forth a non-exclusive checklist for trial courts to

use in assessing the reliability of scientific expert testimony.

The specific factors explicated by the Daubert Court are (1)

whether the expert's technique or theory can be or has been tested

- that is, whether the expert's theory can be challenged in some

objective sense, or whether it is instead simply a subjective,

conclusory approach that cannot reasonably be assessed for

reliability; (2) whether the technique or theory has been subject

to peer review and publication; (3) the known or potential rate of

error of the technique or theory when applied; (4) the existence

and maintenance of standards and controls; and (5) whether the

technique or theory has been generally accepted in the scientific

community. The Court in Kumho held that these factors might also be

applicable in assessing the reliability of nonscientific expert

testimony, depending upon "the particular circumstances of the

particular case at issue." 119 S.Ct. at 1175.

No attempt has been made to "codify" these specific factors.

Daubert itself emphasized that the factors were neither exclusive

nor dispositive. Other cases have recognized that not all of the

specific Daubert factors can apply to every type of expert

testimony. In addition to Kumho, 119 S.Ct. at 1175, see Tyus v.

Urban Search Management, 102 F.3d 256 (7th Cir. 1996) (noting that

the factors mentioned by the Court in Daubert do not neatly apply

to expert testimony from a sociologist). See also Kannankeril v.

Terminix Int'l, Inc., 128 F.3d 802, 809 (3d Cir. 1997) (holding

that lack of peer review or publication was not dispositive where

the expert's opinion was supported by "widely accepted scientific

knowledge"). The standards set forth in the amendment are broad

enough to require consideration of any or all of the specific

Daubert factors where appropriate.

Courts both before and after Daubert have found other factors

relevant in determining whether expert testimony is sufficiently

reliable to be considered by the trier of fact. These factors

include:

(1) Whether experts are "proposing to testify about matters

growing naturally and directly out of research they have conducted

independent of the litigation, or whether they have developed their

opinions expressly for purposes of testifying." Daubert v. Merrell

Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995).

(2) Whether the expert has unjustifiably extrapolated from an

accepted premise to an unfounded conclusion. See General Elec. Co.

v. Joiner, 522 U.S. 136, 146 (1997) (noting that in some cases a

trial court "may conclude that there is simply too great an

analytical gap between the data and the opinion proffered").

(3) Whether the expert has adequately accounted for obvious

alternative explanations. See Claar v. Burlington N.R.R., 29 F.3d

499 (9th Cir. 1994) (testimony excluded where the expert failed to

consider other obvious causes for the plaintiff's condition).

Compare Ambrosini v. Labarraque, 101 F.3d 129 (D.C.Cir. 1996) (the

possibility of some uneliminated causes presents a question of

weight, so long as the most obvious causes have been considered and

reasonably ruled out by the expert).

(4) Whether the expert "is being as careful as he would be in his

regular professional work outside his paid litigation consulting."

Sheehan v. Daily Racing Form, Inc., 104 F.3d 940, 942 (7th Cir.

1997). See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176

(1999) (Daubert requires the trial court to assure itself that the

expert "employs in the courtroom the same level of intellectual

rigor that characterizes the practice of an expert in the relevant

field").

(5) Whether the field of expertise claimed by the expert is known

to reach reliable results for the type of opinion the expert would

give. See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1175 (1999)

(Daubert's general acceptance factor does not "help show that an

expert's testimony is reliable where the discipline itself lacks

reliability, as, for example, do theories grounded in any so-called

generally accepted principles of astrology or necromancy."); Moore

v. Ashland Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc)

(clinical doctor was properly precluded from testifying to the

toxicological cause of the plaintiff's respiratory problem, where

the opinion was not sufficiently grounded in scientific

methodology); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th

Cir. 1988) (rejecting testimony based on "clinical ecology" as

unfounded and unreliable).

All of these factors remain relevant to the determination of the

reliability of expert testimony under the Rule as amended. Other

factors may also be relevant. See Kumho, 119 S.Ct. 1167, 1176

("[W]e conclude that the trial judge must have considerable leeway

in deciding in a particular case how to go about determining

whether particular expert testimony is reliable."). Yet no single

factor is necessarily dispositive of the reliability of a

particular expert's testimony. See, e.g., Heller v. Shaw

Industries, Inc., 167 F.3d 146, 155 (3d Cir. 1999) ("not only must

each stage of the expert's testimony be reliable, but each stage

must be evaluated practically and flexibly without bright-line

exclusionary (or inclusionary) rules."); Daubert v. Merrell Dow

Pharmaceuticals, Inc., 43 F.3d 1311, 1317, n.5 (9th Cir. 1995)

(noting that some expert disciplines "have the courtroom as a

principal theatre of operations" and as to these disciplines "the

fact that the expert has developed an expertise principally for

purposes of litigation will obviously not be a substantial

consideration.").

A review of the caselaw after Daubert shows that the rejection of

expert testimony is the exception rather than the rule. Daubert did

not work a "seachange over federal evidence law," and "the trial

court's role as gatekeeper is not intended to serve as a

replacement for the adversary system." United States v. 14.38 Acres

of Land Situated in Leflore County, Mississippi, 80 F.3d 1074, 1078

(5th Cir. 1996). As the Court in Daubert stated: "Vigorous

cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and

appropriate means of attacking shaky but admissible evidence." 509

U.S. at 595. Likewise, this amendment is not intended to provide an

excuse for an automatic challenge to the testimony of every expert.

See Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999)

(noting that the trial judge has the discretion "both to avoid

unnecessary 'reliability' proceedings in ordinary cases where the

reliability of an expert's methods is properly taken for granted,

and to require appropriate proceedings in the less usual or more

complex cases where cause for questioning the expert's reliability

arises.").

When a trial court, applying this amendment, rules that an

expert's testimony is reliable, this does not necessarily mean that

contradictory expert testimony is unreliable. The amendment is

broad enough to permit testimony that is the product of competing

principles or methods in the same field of expertise. See, e.g.,

Heller v. Shaw Industries, Inc., 167 F.3d 146, 160 (3d Cir. 1999)

(expert testimony cannot be excluded simply because the expert uses

one test rather than another, when both tests are accepted in the

field and both reach reliable results). As the court stated in In

re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994),

proponents "do not have to demonstrate to the judge by a

preponderance of the evidence that the assessments of their experts

are correct, they only have to demonstrate by a preponderance of

evidence that their opinions are reliable. . . . The evidentiary

requirement of reliability is lower than the merits standard of

correctness." See also Daubert v. Merrell Dow Pharmaceuticals,

Inc., 43 F.3d 1311, 1318 (9th Cir. 1995) (scientific experts might

be permitted to testify if they could show that the methods they

used were also employed by "a recognized minority of scientists in

their field."); Ruiz-Troche v. Pepsi Cola, 161 F.3d 77, 85 (1st

Cir. 1998) ("Daubert neither requires nor empowers trial courts to

determine which of several competing scientific theories has the

best provenance.").

The Court in Daubert declared that the "focus, of course, must be

solely on principles and methodology, not on the conclusions they

generate." 509 U.S. at 595. Yet as the Court later recognized,

"conclusions and methodology are not entirely distinct from one

another." General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

Under the amendment, as under Daubert, when an expert purports to

apply principles and methods in accordance with professional

standards, and yet reaches a conclusion that other experts in the

field would not reach, the trial court may fairly suspect that the

principles and methods have not been faithfully applied. See Lust

v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 598 (9th Cir.

1996). The amendment specifically provides that the trial court

must scrutinize not only the principles and methods used by the

expert, but also whether those principles and methods have been

properly applied to the facts of the case. As the court noted in In

re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994),

"any step that renders the analysis unreliable . . . renders the

expert's testimony inadmissible. This is true whether the step

completely changes a reliable methodology or merely misapplies that

methodology."

If the expert purports to apply principles and methods to the

facts of the case, it is important that this application be

conducted reliably. Yet it might also be important in some cases

for an expert to educate the factfinder about general principles,

without ever attempting to apply these principles to the specific

facts of the case. For example, experts might instruct the

factfinder on the principles of thermodynamics, or bloodclotting,

or on how financial markets respond to corporate reports, without

ever knowing about or trying to tie their testimony into the facts

of the case. The amendment does not alter the venerable practice of

using expert testimony to educate the factfinder on general

principles. For this kind of generalized testimony, Rule 702 simply

requires that: (1) the expert be qualified; (2) the testimony

address a subject matter on which the factfinder can be assisted by

an expert; (3) the testimony be reliable; and (4) the testimony

"fit" the facts of the case.

As stated earlier, the amendment does not distinguish between

scientific and other forms of expert testimony. The trial court's

gatekeeping function applies to testimony by any expert. See Kumho

Tire Co. v. Carmichael, 119 S.Ct. 1167, 1171 (1999) ("We conclude

that Daubert's general holding - setting forth the trial judge's

general 'gatekeeping' obligation - applies not only to testimony

based on 'scientific' knowledge, but also to testimony based on

'technical' and 'other specialized' knowledge."). While the

relevant factors for determining reliability will vary from

expertise to expertise, the amendment rejects the premise that an

expert's testimony should be treated more permissively simply

because it is outside the realm of science. An opinion from an

expert who is not a scientist should receive the same degree of

scrutiny for reliability as an opinion from an expert who purports

to be a scientist. See Watkins v. Telsmith, Inc., 121 F.3d 984, 991

(5th Cir. 1997) ("[I]t seems exactly backwards that experts who

purport to rely on general engineering principles and practical

experience might escape screening by the district court simply by

stating that their conclusions were not reached by any particular

method or technique."). Some types of expert testimony will be more

objectively verifiable, and subject to the expectations of

falsifiability, peer review, and publication, than others. Some

types of expert testimony will not rely on anything like a

scientific method, and so will have to be evaluated by reference to

other standard principles attendant to the particular area of

expertise. The trial judge in all cases of proffered expert

testimony must find that it is properly grounded, well-reasoned,

and not speculative before it can be admitted. The expert's

testimony must be grounded in an accepted body of learning or

experience in the expert's field, and the expert must explain how

the conclusion is so grounded. See, e.g., American College of Trial

Lawyers, Standards and Procedures for Determining the Admissibility

of Expert Testimony after Daubert, 157 F.R.D. 571, 579 (1994)

("[W]hether the testimony concerns economic principles, accounting

standards, property valuation or other non-scientific subjects, it

should be evaluated by reference to the 'knowledge and experience'

of that particular field.").

The amendment requires that the testimony must be the product of

reliable principles and methods that are reliably applied to the

facts of the case. While the terms "principles" and "methods" may

convey a certain impression when applied to scientific knowledge,

they remain relevant when applied to testimony based on technical

or other specialized knowledge. For example, when a law enforcement

agent testifies regarding the use of code words in a drug

transaction, the principle used by the agent is that participants

in such transactions regularly use code words to conceal the nature

of their activities. The method used by the agent is the

application of extensive experience to analyze the meaning of the

conversations. So long as the principles and methods are reliable

and applied reliably to the facts of the case, this type of

testimony should be admitted.

Nothing in this amendment is intended to suggest that experience

alone - or experience in conjunction with other knowledge, skill,

training or education - may not provide a sufficient foundation for

expert testimony. To the contrary, the text of Rule 702 expressly

contemplates that an expert may be qualified on the basis of

experience. In certain fields, experience is the predominant, if

not sole, basis for a great deal of reliable expert testimony. See,

e.g., United States v. Jones, 107 F.3d 1147 (6th Cir. 1997) (no

abuse of discretion in admitting the testimony of a handwriting

examiner who had years of practical experience and extensive

training, and who explained his methodology in detail); Tassin v.

Sears Roebuck, 946 F.Supp. 1241, 1248 (M.D.La. 1996) (design

engineer's testimony can be admissible when the expert's opinions

"are based on facts, a reasonable investigation, and traditional

technical/mechanical expertise, and he provides a reasonable link

between the information and procedures he uses and the conclusions

he reaches"). See also Kumho Tire Co. v. Carmichael, 119 S.Ct.

1167, 1178 (1999) (stating that "no one denies that an expert might

draw a conclusion from a set of observations based on extensive and

specialized experience.").

If the witness is relying solely or primarily on experience, then

the witness must explain how that experience leads to the

conclusion reached, why that experience is a sufficient basis for

the opinion, and how that experience is reliably applied to the

facts. The trial court's gatekeeping function requires more than

simply "taking the expert's word for it." See Daubert v. Merrell

Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1319 (9th Cir. 1995)

("We've been presented with only the experts' qualifications, their

conclusions and their assurances of reliability. Under Daubert,

that's not enough."). The more subjective and controversial the

expert's inquiry, the more likely the testimony should be excluded

as unreliable. See O'Conner v. Commonwealth Edison Co., 13 F.3d

1090 (7th Cir. 1994) (expert testimony based on a completely

subjective methodology held properly excluded). See also Kumho Tire

Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999) ("[I]t will at times

be useful to ask even of a witness whose expertise is based purely

on experience, say, a perfume tester able to distinguish among 140

odors at a sniff, whether his preparation is of a kind that others

in the field would recognize as acceptable.").

Subpart (1) of Rule 702 calls for a quantitative rather than

qualitative analysis. The amendment requires that expert testimony

be based on sufficient underlying "facts or data." The term "data"

is intended to encompass the reliable opinions of other experts.

See the original Advisory Committee Note to Rule 703. The language

"facts or data" is broad enough to allow an expert to rely on

hypothetical facts that are supported by the evidence. Id.

When facts are in dispute, experts sometimes reach different

conclusions based on competing versions of the facts. The emphasis

in the amendment on "sufficient facts or data" is not intended to

authorize a trial court to exclude an expert's testimony on the

ground that the court believes one version of the facts and not the

other.

There has been some confusion over the relationship between Rules

702 and 703. The amendment makes clear that the sufficiency of the

basis of an expert's testimony is to be decided under Rule 702.

Rule 702 sets forth the overarching requirement of reliability, and

an analysis of the sufficiency of the expert's basis cannot be

divorced from the ultimate reliability of the expert's opinion. In

contrast, the "reasonable reliance" requirement of Rule 703 is a

relatively narrow inquiry. When an expert relies on inadmissible

information, Rule 703 requires the trial court to determine whether

that information is of a type reasonably relied on by other experts

in the field. If so, the expert can rely on the information in

reaching an opinion. However, the question whether the expert is

relying on a sufficient basis of information - whether admissible

information or not - is governed by the requirements of Rule 702.

The amendment makes no attempt to set forth procedural

requirements for exercising the trial court's gatekeeping function

over expert testimony. See Daniel J. Capra, The Daubert Puzzle, 38

Ga.L.Rev. 699, 766 (1998) ("Trial courts should be allowed

substantial discretion in dealing with Daubert questions; any

attempt to codify procedures will likely give rise to unnecessary

changes in practice and create difficult questions for appellate

review."). Courts have shown considerable ingenuity and flexibility

in considering challenges to expert testimony under Daubert, and it

is contemplated that this will continue under the amended Rule.

See, e.g., Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184

(1st Cir. 1997) (discussing the application of Daubert in ruling on

a motion for summary judgment); In re Paoli R.R. Yard PCB Litig.,

35 F.3d 717, 736, 739 (3d Cir. 1994) (discussing the use of in

limine hearings); Claar v. Burlington N.R.R., 29 F.3d 499, 502-05

(9th Cir. 1994) (discussing the trial court's technique of ordering

experts to submit serial affidavits explaining the reasoning and

methods underlying their conclusions).

The amendment continues the practice of the original Rule in

referring to a qualified witness as an "expert." This was done to

provide continuity and to minimize change. The use of the term

"expert" in the Rule does not, however, mean that a jury should

actually be informed that a qualified witness is testifying as an

"expert." Indeed, there is much to be said for a practice that

prohibits the use of the term "expert" by both the parties and the

court at trial. Such a practice "ensures that trial courts do not

inadvertently put their stamp of authority" on a witness's opinion,

and protects against the jury's being "overwhelmed by the so-called

'experts'." Hon. Charles Richey, Proposals to Eliminate the

Prejudicial Effect of the Use of the Word "Expert" Under the

Federal Rules of Evidence in Criminal and Civil Jury Trials, 154

F.R.D. 537, 559 (1994) (setting forth limiting instructions and a

standing order employed to prohibit the use of the term "expert" in

jury trials).

GAP Report - Proposed Amendment to Rule 702. The Committee made

the following changes to the published draft of the proposed

amendment to Evidence Rule 702:

1. The word "reliable" was deleted from Subpart (1) of the

proposed amendment, in order to avoid an overlap with Evidence Rule

703, and to clarify that an expert opinion need not be excluded

simply because it is based on hypothetical facts. The Committee

Note was amended to accord with this textual change.

2. The Committee Note was amended throughout to include pertinent

references to the Supreme Court's decision in Kumho Tire Co. v.

Carmichael, which was rendered after the proposed amendment was

released for public comment. Other citations were updated as well.

3. The Committee Note was revised to emphasize that the amendment

is not intended to limit the right to jury trial, nor to permit a

challenge to the testimony of every expert, nor to preclude the

testimony of experience-based experts, nor to prohibit testimony

based on competing methodologies within a field of expertise.

4. Language was added to the Committee Note to clarify that no

single factor is necessarily dispositive of the reliability inquiry

mandated by Evidence Rule 702.

-End-

-CITE-

28 USC APPENDIX Rule 703 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

-HEAD-

Rule 703. Bases of Opinion Testimony by Experts

-STATUTE-

The facts or data in the particular case upon which an expert

bases an opinion or inference may be those perceived by or made

known to the expert at or before the hearing. If of a type

reasonably relied upon by experts in the particular field in

forming opinions or inferences upon the subject, the facts or data

need not be admissible in evidence in order for the opinion or

inference to be admitted. Facts or data that are otherwise

inadmissible shall not be disclosed to the jury by the proponent of

the opinion or inference unless the court determines that their

probative value in assisting the jury to evaluate the expert's

opinion substantially outweighs their prejudicial effect.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937; Mar. 2, 1987,

eff. Oct. 1, 1987; Apr. 17, 2000, eff. Dec. 1, 2000.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Facts or data upon which expert opinions are based may, under the

rule, be derived from three possible sources. The first is the

firsthand observation of the witness, with opinions based thereon

traditionally allowed. A treating physician affords an example.

Rheingold, The Basis of Medical Testimony, 15 Vand.L.Rev. 473, 489

(1962). Whether he must first relate his observations is treated in

Rule 705. The second source, presentation at the trial, also

reflects existing practice. The technique may be the familiar

hypothetical question or having the expert attend the trial and

hear the testimony establishing the facts. Problems of determining

what testimony the expert relied upon, when the latter technique is

employed and the testimony is in conflict, may be resolved by

resort to Rule 705. The third source contemplated by the rule

consists of presentation of data to the expert outside of court and

other than by his own perception. In this respect the rule is

designed to broaden the basis for expert opinions beyond that

current in many jurisdictions and to bring the judicial practice

into line with the practice of the experts themselves when not in

court. Thus a physician in his own practice bases his diagnosis on

information from numerous sources and of considerable variety,

including statements by patients and relatives, reports and

opinions from nurses, technicians and other doctors, hospital

records, and X rays. Most of them are admissible in evidence, but

only with the expenditure of substantial time in producing and

examining various authenticating witnesses. The physician makes

life-and-death decisions in reliance upon them. His validation,

expertly performed and subject to cross-examination, ought to

suffice for judicial purposes. Rheingold, supra, at 531; McCormick

Sec. 15. A similar provision is California Evidence Code Sec.

801(b).

The rule also offers a more satisfactory basis for ruling upon

the admissibility of public opinion poll evidence. Attention is

directed to the validity of the techniques employed rather than to

relatively fruitless inquiries whether hearsay is involved. See

Judge Feinberg's careful analysis in Zippo Mfg. Co. v. Rogers

Imports, Inc., 216 F.Supp. 670 (S.D.N.Y. 1963) See also Blum et al,

The Art of Opinion Research: A Lawyer's Appraisal of an Emerging

Service, 24 U.Chi.L.Rev. 1 (1956); Bonynge, Trademark Surveys and

Techniques and Their Use in Litigation, 48 A.B.A.J. 329 (1962);

Zeisel, The Uniqueness of Survey Evidence, 45 Cornell L.Q. 322

(1960); Annot., 76 A.L.R.2d 919.

If it be feared that enlargement of permissible data may tend to

break down the rules of exclusion unduly, notice should be taken

that the rule requires that the facts or data "be of a type

reasonably relied upon by experts in the particular field." The

language would not warrant admitting in evidence the opinion of an

"accidentologist" as to the point of impact in an automobile

collision based on statements of bystanders, since this requirement

is not satisfied. See Comment, Cal.Law Rev.Comm'n, Recommendation

Proposing an Evidence Code 148-150 (1965).

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

COMMITTEE NOTES ON RULES - 2000 AMENDMENT

Rule 703 has been amended to emphasize that when an expert

reasonably relies on inadmissible information to form an opinion or

inference, the underlying information is not admissible simply

because the opinion or inference is admitted. Courts have reached

different results on how to treat inadmissible information when it

is reasonably relied upon by an expert in forming an opinion or

drawing an inference. Compare United States v. Rollins, 862 F.2d

1282 (7th Cir. 1988) (admitting, as part of the basis of an FBI

agent's expert opinion on the meaning of code language, the hearsay

statements of an informant), with United States v. 0.59 Acres of

Land, 109 F.3d 1493 (9th Cir. 1997) (error to admit hearsay offered

as the basis of an expert opinion, without a limiting instruction).

Commentators have also taken differing views. See, e.g., Ronald

Carlson, Policing the Bases of Modern Expert Testimony, 39

Vand.L.Rev. 577 (1986) (advocating limits on the jury's

consideration of otherwise inadmissible evidence used as the basis

for an expert opinion); Paul Rice, Inadmissible Evidence as a Basis

for Expert Testimony: A Response to Professor Carlson, 40

Vand.L.Rev. 583 (1987) (advocating unrestricted use of information

reasonably relied upon by an expert).

When information is reasonably relied upon by an expert and yet

is admissible only for the purpose of assisting the jury in

evaluating an expert's opinion, a trial court applying this Rule

must consider the information's probative value in assisting the

jury to weigh the expert's opinion on the one hand, and the risk of

prejudice resulting from the jury's potential misuse of the

information for substantive purposes on the other. The information

may be disclosed to the jury, upon objection, only if the trial

court finds that the probative value of the information in

assisting the jury to evaluate the expert's opinion substantially

outweighs its prejudicial effect. If the otherwise inadmissible

information is admitted under this balancing test, the trial judge

must give a limiting instruction upon request, informing the jury

that the underlying information must not be used for substantive

purposes. See Rule 105. In determining the appropriate course, the

trial court should consider the probable effectiveness or lack of

effectiveness of a limiting instruction under the particular

circumstances.

The amendment governs only the disclosure to the jury of

information that is reasonably relied on by an expert, when that

information is not admissible for substantive purposes. It is not

intended to affect the admissibility of an expert's testimony. Nor

does the amendment prevent an expert from relying on information

that is inadmissible for substantive purposes.

Nothing in this Rule restricts the presentation of underlying

expert facts or data when offered by an adverse party. See Rule

705. Of course, an adversary's attack on an expert's basis will

often open the door to a proponent's rebuttal with information that

was reasonably relied upon by the expert, even if that information

would not have been discloseable initially under the balancing test

provided by this amendment. Moreover, in some circumstances the

proponent might wish to disclose information that is relied upon by

the expert in order to "remove the sting" from the opponent's

anticipated attack, and thereby prevent the jury from drawing an

unfair negative inference. The trial court should take this

consideration into account in applying the balancing test provided

by this amendment.

This amendment covers facts or data that cannot be admitted for

any purpose other than to assist the jury to evaluate the expert's

opinion. The balancing test provided in this amendment is not

applicable to facts or data that are admissible for any other

purpose but have not yet been offered for such a purpose at the

time the expert testifies.

The amendment provides a presumption against disclosure to the

jury of information used as the basis of an expert's opinion and

not admissible for any substantive purpose, when that information

is offered by the proponent of the expert. In a multi-party case,

where one party proffers an expert whose testimony is also

beneficial to other parties, each such party should be deemed a

"proponent" within the meaning of the amendment.

GAP Report - Proposed Amendment to Rule 703. The Committee made

the following changes to the published draft of the proposed

amendment to Evidence Rule 703:

1. A minor stylistic change was made in the text, in accordance

with the suggestion of the Style Subcommittee of the Standing

Committee on Rules of Practice and Procedure.

2. The words "in assisting the jury to evaluate the expert's

opinion" were added to the text, to specify the proper purpose for

offering the otherwise inadmissible information relied on by an

expert. The Committee Note was revised to accord with this change

in the text.

3. Stylistic changes were made to the Committee Note.

4. The Committee Note was revised to emphasize that the balancing

test set forth in the proposal should be used to determine whether

an expert's basis may be disclosed to the jury either (1) in

rebuttal or (2) on direct examination to "remove the sting" of an

opponent's anticipated attack on an expert's basis.

-End-

-CITE-

28 USC APPENDIX Rule 704 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

-HEAD-

Rule 704. Opinion on Ultimate Issue

-STATUTE-

(a) Except as provided in subdivision (b), testimony in the form

of an opinion or inference otherwise admissible is not

objectionable because it embraces an ultimate issue to be decided

by the trier of fact.

(b) No expert witness testifying with respect to the mental state

or condition of a defendant in a criminal case may state an opinion

or inference as to whether the defendant did or did not have the

mental state or condition constituting an element of the crime

charged or of a defense thereto. Such ultimate issues are matters

for the trier of fact alone.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1937; Pub. L.

98-473, title II, Sec. 406, Oct. 12, 1984, 98 Stat. 2067.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The basic approach to opinions, lay and expert, in these rules is

to admit them when helpful to the trier of fact. In order to render

this approach fully effective and to allay any doubt on the

subject, the so-called "ultimate issue" rule is specifically

abolished by the instant rule.

The older cases often contained strictures against allowing

witnesses to express opinions upon ultimate issues, as a particular

aspect of the rule against opinions. The rule was unduly

restrictive, difficult of application, and generally served only to

deprive the trier of fact of useful information. 7 Wigmore Secs.

1920, 1921; McCormick Sec. 12. The basis usually assigned for the

rule, to prevent the witness from "usurping the province of the

jury," is aptly characterized as "empty rhetoric." 7 Wigmore Sec.

1920, p. 17. Efforts to meet the felt needs of particular

situations led to odd verbal circumlocutions which were said not to

violate the rule. Thus a witness could express his estimate of the

criminal responsibility of an accused in terms of sanity or

insanity, but not in terms of ability to tell right from wrong or

other more modern standard. And in cases of medical causation,

witnesses were sometimes required to couch their opinions in

cautious phrases of "might or could," rather than "did," though the

result was to deprive many opinions of the positiveness to which

they were entitled, accompanied by the hazard of a ruling of

insufficiency to support a verdict. In other instances the rule was

simply disregarded, and, as concessions to need, opinions were

allowed upon such matters as intoxication, speed, handwriting, and

value, although more precise coincidence with an ultimate issue

would scarcely be possible.

Many modern decisions illustrate the trend to abandon the rule

completely. People v. Wilson, 25 Cal.2d 341, 153 P.2d 720 (1944),

whether abortion necessary to save life of patient; Clifford-Jacobs

Forging Co. v. Industrial Comm., 19 Ill.2d 236, 166 N.E.2d 582

(1960), medical causation; Dowling v. L. H. Shattuck, Inc., 91 N.H.

234, 17 A.2d 529 (1941), proper method of shoring ditch; Schweiger

v. Solbeck, 191 Or. 454, 230 P.2d 195 (1951), cause of landslide.

In each instance the opinion was allowed.

The abolition of the ultimate issue rule does not lower the bars

so as to admit all opinions. Under Rules 701 and 702, opinions must

be helpful to the trier of fact, and Rule 403 provides for

exclusion of evidence which wastes time. These provisions afford

ample assurances against the admission of opinions which would

merely tell the jury what result to reach, somewhat in the manner

of the oath-helpers of an earlier day. They also stand ready to

exclude opinions phrased in terms of inadequately explored legal

criteria. Thus the question, "Did T have capacity to make a will?"

would be excluded, while the question, "Did T have sufficient

mental capacity to know the nature and extent of his property and

the natural objects of his bounty and to formulate a rational

scheme of distribution?" would be allowed. McCormick Sec. 12.

For similar provisions see Uniform Rule 56(4); California

Evidence Code Sec. 805; Kansas Code of Civil Procedures Sec.

60-456(d); New Jersey Evidence Rule 56(3).

AMENDMENT BY PUBLIC LAW

1984 - Pub. L. 98-473 designated existing provisions as subd.

(a), inserted "Except as provided in subdivision (b)", and added

subd. (b).

-End-

-CITE-

28 USC APPENDIX Rule 705 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

-HEAD-

Rule 705. Disclosure of Facts or Data Underlying Expert Opinion

-STATUTE-

The expert may testify in terms of opinion or inference and give

reasons therefor without first testifying to the underlying facts

or data, unless the court requires otherwise. The expert may in any

event be required to disclose the underlying facts or data on

cross-examination.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1938; Mar. 2, 1987,

eff. Oct. 1, 1987; Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The hypothetical question has been the target of a great deal of

criticism as encouraging partisan bias, affording an opportunity

for summing up in the middle of the case, and as complex and time

consuming. Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 426-427

(1952). While the rule allows counsel to make disclosure of the

underlying facts or data as a preliminary to the giving of an

expert opinion, if he chooses, the instances in which he is

required to do so are reduced. This is true whether the expert

bases his opinion on data furnished him at secondhand or observed

by him at firsthand.

The elimination of the requirement of preliminary disclosure at

the trial of underlying facts or data has a long background of

support. In 1937 the Commissioners on Uniform State Laws

incorporated a provision to this effect in the Model Expert

Testimony Act, which furnished the basis for Uniform Rules 57 and

58. Rule 4515, N.Y. CPLR (McKinney 1963), provides:

"Unless the court orders otherwise, questions calling for the

opinion of an expert witness need not be hypothetical in form, and

the witness may state his opinion and reasons without first

specifying the data upon which it is based. Upon cross-examination,

he may be required to specify the data * * *,"

See also California Evidence Code Sec. 802; Kansas Code of Civil

Procedure Secs. 60-456, 60-457; New Jersey Evidence Rules 57, 58.

If the objection is made that leaving it to the cross-examiner to

bring out the supporting data is essentially unfair, the answer is

that he is under no compulsion to bring out any facts or data

except those unfavorable to the opinion. The answer assumes that

the cross-examiner has the advance knowledge which is essential for

effective cross-examination. This advance knowledge has been

afforded, though imperfectly, by the traditional foundation

requirement. Rule 26(b)(4) of the Rules of Civil Procedure, as

revised, provides for substantial discovery in this area, obviating

in large measure the obstacles which have been raised in some

instances to discovery of findings, underlying data, and even the

identity of the experts. Friedenthal, Discovery and Use of an

Adverse Party's Expert Information, 14 Stan.L.Rev. 455 (1962).

These safeguards are reinforced by the discretionary power of the

judge to require preliminary disclosure in any event.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

This rule, which relates to the manner of presenting testimony at

trial, is revised to avoid an arguable conflict with revised Rules

26(a)(2)(B) and 26(e)(1) of the Federal Rules of Civil Procedure or

with revised Rule 16 of the Federal Rules of Criminal Procedure,

which require disclosure in advance of trial of the basis and

reasons for an expert's opinions.

If a serious question is raised under Rule 702 or 703 as to the

admissibility of expert testimony, disclosure of the underlying

facts or data on which opinions are based may, of course, be needed

by the court before deciding whether, and to what extent, the

person should be allowed to testify. This rule does not preclude

such an inquiry.

-End-

-CITE-

28 USC APPENDIX Rule 706 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

-HEAD-

Rule 706. Court Appointed Experts

-STATUTE-

(a) Appointment. - The court may on its own motion or on the

motion of any party enter an order to show cause why expert

witnesses should not be appointed, and may request the parties to

submit nominations. The court may appoint any expert witnesses

agreed upon by the parties, and may appoint expert witnesses of its

own selection. An expert witness shall not be appointed by the

court unless the witness consents to act. A witness so appointed

shall be informed of the witness' duties by the court in writing, a

copy of which shall be filed with the clerk, or at a conference in

which the parties shall have opportunity to participate. A witness

so appointed shall advise the parties of the witness' findings, if

any; the witness' deposition may be taken by any party; and the

witness may be called to testify by the court or any party. The

witness shall be subject to cross-examination by each party,

including a party calling the witness.

(b) Compensation. - Expert witnesses so appointed are entitled to

reasonable compensation in whatever sum the court may allow. The

compensation thus fixed is payable from funds which may be provided

by law in criminal cases and civil actions and proceedings

involving just compensation under the fifth amendment. In other

civil actions and proceedings the compensation shall be paid by the

parties in such proportion and at such time as the court directs,

and thereafter charged in like manner as other costs.

(c) Disclosure of appointment. - In the exercise of its

discretion, the court may authorize disclosure to the jury of the

fact that the court appointed the expert witness.

(d) Parties' experts of own selection. - Nothing in this rule

limits the parties in calling expert witnesses of their own

selection.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1938; Mar. 2, 1987,

eff. Oct. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The practice of shopping for experts, the venality of some

experts, and the reluctance of many reputable experts to involve

themselves in litigation, have been matters of deep concern. Though

the contention is made that court appointed experts acquire an aura

of infallibility to which they are not entitled. Levy, Impartial

Medical Testimony - Revisited, 34 Temple L.Q. 416 (1961), the trend

is increasingly to provide for their use. While experience

indicates that actual appointment is a relatively infrequent

occurrence, the assumption may be made that the availability of the

procedure in itself decreases the need for resorting to it. The

ever-present possibility that the judge may appoint an expert in a

given case must inevitably exert a sobering effect on the expert

witness of a party and upon the person utilizing his services.

The inherent power of a trial judge to appoint an expert of his

own choosing is virtually unquestioned. Scott v. Spanjer Bros.,

Inc., 298 F.2d 928 (2d Cir. 1962); Danville Tobacco Assn. v.

Bryant-Buckner Associates, Inc., 333 F.2d 202 (4th Cir. 1964);

Sink, The Unused Power of a Federal Judge to Call His Own Expert

Witnesses, 29 S.Cal.L.Rev. 195 (1956); 2 Wigmore Sec. 563, 9 Id.

Sec. 2484; Annot., 95 A.L.R.2d 383. Hence the problem becomes

largely one of detail.

The New York plan is well known and is described in Report by

Special Committee of the Association of the Bar of the City of New

York: Impartial Medical Testimony (1956). On recommendation of the

Section of Judicial Administration, local adoption of an impartial

medical plan was endorsed by the American Bar Association. 82

A.B.A.Rep. 184-185 (1957). Descriptions and analyses of plans in

effect in various parts of the country are found in Van Dusen, A

United States District Judge's View of the Impartial Medical Expert

System, 322 F.R.D. 498 (1963); Wick and Kightlinger, Impartial

Medical Testimony Under the Federal Civil Rules: A Tale of Three

Doctors, 34 Ins. Counsel J. 115 (1967); and numerous articles

collected in Klein, Judicial Administration and the Legal

Profession 393 (1963). Statutes and rules include California

Evidence Code Secs. 730-733; Illinois Supreme Court Rule 215(d),

Ill.Rev.Stat.1969, c. 110A, Sec. 215(d); Burns Indiana Stats. 1956,

Sec. 9-1702; Wisconsin Stats.Annot.1958, Sec. 957.27.

In the federal practice, a comprehensive scheme for court

appointed experts was initiated with the adoption of Rule 28 of the

Federal Rules of Criminal Procedure in 1946. The Judicial

Conference of the United States in 1953 considered court appointed

experts in civil cases, but only with respect to whether they

should be compensated from public funds, a proposal which was

rejected. Report of the Judicial Conference of the United States 23

(1953). The present rule expands the practice to include civil

cases.

Subdivision (a) is based on Rule 28 of the Federal Rules of

Criminal Procedure, with a few changes, mainly in the interest of

clarity. Language has been added to provide specifically for the

appointment either on motion of a party or on the judge's own

motion. A provision subjecting the court appointed expert to

deposition procedures has been incorporated. The rule has been

revised to make definite the right of any party, including the

party calling him, to cross-examine.

Subdivision (b) combines the present provision for compensation

in criminal cases with what seems to be a fair and feasible

handling of civil cases, originally found in the Model Act and

carried from there into Uniform Rule 60. See also California

Evidence Code Secs. 730-731. The special provision for Fifth

Amendment compensation cases is designed to guard against reducing

constitutionally guaranteed just compensation by requiring the

recipient to pay costs. See Rule 71A(l) of the Rules of Civil

Procedure.

Subdivision (c) seems to be essential if the use of court

appointed experts is to be fully effective. Uniform Rule 61 so

provides.

Subdivision (d) is in essence the last sentence of Rule 28(a) of

the Federal Rules of Criminal Procedure.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX ARTICLE VIII. HEARSAY 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VIII. HEARSAY

-HEAD-

ARTICLE VIII. HEARSAY

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

INTRODUCTORY NOTE: THE HEARSAY PROBLEM

The factors to be considered in evaluating the testimony of a

witness are perception, memory, and narration. Morgan, Hearsay

Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev.

177 (1948), Selected Writings on Evidence and Trial 764, 765 (Fryer

ed. 1957); Shientag, Cross-Examination - A Judge's Viewpoint, 3

Record 12 (1948); Strahorn, A Reconsideration of the Hearsay Rule

and Admissions, 85 U.Pa.L.Rev. 484, 485 (1937), Selected Writings,

supra, 756, 757: Weinstein, Probative Force of Hearsay, 46 Iowa

L.Rev. 331 (1961). Sometimes a fourth is added, sincerity, but in

fact it seems merely to be an aspect of the three already

mentioned.

In order to encourage the witness to do his best with respect to

each of these factors, and to expose any inaccuracies which may

enter in, the Anglo-American tradition has evolved three conditions

under which witnesses will ideally be required to testify: (1)

under oath, (2) in the personal presence of the trier of fact, (3)

subject to cross-examination.

(1) Standard procedure calls for the swearing of witnesses. While

the practice is perhaps less effective than in an earlier time, no

disposition to relax the requirement is apparent, other than to

allow affirmation by persons with scruples against taking oaths.

(2) The demeanor of the witness traditionally has been believed

to furnish trier and opponent with valuable clues. Universal Camera

Corp. v. N.L.R.B., 340 U.S. 474, 495-496, 71 S.Ct. 456, 95 L.Ed.

456 (1951); Sahm, Demeanor Evidence: Elusive and Intangible

Imponderables, 47 A.B.A.J. 580 (1961), quoting numerous

authorities. The witness himself will probably be impressed with

the solemnity of the occasion and the possibility of public

disgrace. Willingness to falsify may reasonably become more

difficult in the presence of the person against whom directed.

Rules 26 and 43(a) of the Federal Rules of Criminal and Civil

Procedure, respectively, include the general requirement that

testimony be taken orally in open court. The Sixth Amendment right

of confrontation is a manifestation of these beliefs and attitudes.

(3) Emphasis on the basis of the hearsay rule today tends to

center upon the condition of cross-examination. All may not agree

with Wigmore that cross-examination is "beyond doubt the greatest

legal engine ever invented for the discovery of truth," but all

will agree with his statement that it has become a "vital feature"

of the Anglo-American system. 5 Wigmore Sec. 1367, p. 29. The

belief, or perhaps hope, that cross-examination is effective in

exposing imperfections of perception, memory, and narration is

fundamental. Morgan, Foreword to Model Code of Evidence 37 (1942).

The logic of the preceding discussion might suggest that no

testimony be received unless in full compliance with the three

ideal conditions. No one advocates this position. Common sense

tells that much evidence which is not given under the three

conditions may be inherently superior to much that is. Moreover,

when the choice is between evidence which is less than best and no

evidence at all, only clear folly would dictate an across-the-board

policy of doing without. The problem thus resolves itself into

effecting a sensible accommodation between these considerations and

the desirability of giving testimony under the ideal conditions.

The solution evolved by the common law has been a general rule

excluding hearsay but subject to numerous exceptions under

circumstances supposed to furnish guarantees of trustworthiness.

Criticisms of this scheme are that it is bulky and complex, fails

to screen good from bad hearsay realistically, and inhibits the

growth of the law of evidence.

Since no one advocates excluding all hearsay, three possible

solutions may be considered: (1) abolish the rule against hearsay

and admit all hearsay; (2) admit hearsay possessing sufficient

probative force, but with procedural safeguards; (3) revise the

present system of class exceptions.

(1) Abolition of the hearsay rule would be the simplest solution.

The effect would not be automatically to abolish the giving of

testimony under ideal conditions. If the declarant were available,

compliance with the ideal conditions would be optional with either

party. Thus the proponent could call the declarant as a witness as

a form of presentation more impressive than his hearsay statement.

Or the opponent could call the declarant to be cross-examined upon

his statement. This is the tenor of Uniform Rule 63(1), admitting

the hearsay declaration of a person "who is present at the hearing

and available for cross-examination." Compare the treatment of

declarations of available declarants in Rule 801(d)(1) of the

instant rules. If the declarant were unavailable, a rule of free

admissibility would make no distinctions in terms of degrees of

noncompliance with the ideal conditions and would exact no liquid

pro quo in the form of assurances of trustworthiness. Rule 503 of

the Model Code did exactly that, providing for the admissibility of

any hearsay declaration by an unavailable declarant, finding

support in the Massachusetts act of 1898, enacted at the instance

of Thayer, Mass.Gen.L.1932, c. 233 Sec. 65, and in the English act

of 1938, St.1938, c. 28, Evidence. Both are limited to civil cases.

The draftsmen of the Uniform Rules chose a less advanced and more

conventional position. Comment, Uniform Rule 63. The present

Advisory Committee has been unconvinced of the wisdom of abandoning

the traditional requirement of some particular assurance of

credibility as a condition precedent to admitting the hearsay

declaration of an unavailable declarant.

In criminal cases, the Sixth Amendment requirement of

confrontation would no doubt move into a large part of the area

presently occupied by the hearsay rule in the event of the

abolition of the latter. The resultant split between civil and

criminal evidence is regarded as an undesirable development.

(2) Abandonment of the system of class exceptions in favor of

individual treatment in the setting of the particular case,

accompanied by procedural safeguards, has been impressively

advocated. Weinstein, The Probative Force of Hearsay, 46 Iowa

L.Rev. 331 (1961). Admissibility would be determined by weighing

the probative force of the evidence against the possibility of

prejudice, waste of time, and the availability of more satisfactory

evidence. The bases of the traditional hearsay exceptions would be

helpful in assessing probative force. Ladd, The Relationship of the

Principles of Exclusionary Rules of Evidence to the Problem of

Proof, 18 Minn.L.Rev. 506 (1934). Procedural safeguards would

consist of notice of intention to use hearsay, free comment by the

judge on the weight of the evidence, and a greater measure of

authority in both trial and appellate judges to deal with evidence

on the basis of weight. The Advisory Committee has rejected this

approach to hearsay as involving too great a measure of judicial

discretion, minimizing the predictability of rulings, enhancing the

difficulties of preparation for trial, adding a further element to

the already over-complicated congeries of pre-trial procedures, and

requiring substantially different rules for civil and criminal

cases. The only way in which the probative force of hearsay differs

from the probative force of other testimony is in the absence of

oath, demeanor, and cross-examination as aids in determining

credibility. For a judge to exclude evidence because he does not

believe it has been described as "altogether atypical,

extraordinary. * * *" Chadbourn, Bentham and the Hearsay Rule - A

Benthamic View of Rule 63(4)(c) of the Uniform Rules of Evidence,

75 Harv.L.Rev. 932, 947 (1962).

(3) The approach to hearsay in these rules is that of the common

law, i.e., a general rule excluding hearsay, with exceptions under

which evidence is not required to be excluded even though hearsay.

The traditional hearsay exceptions are drawn upon for the

exceptions, collected under two rules, one dealing with situations

where availability of the declarant is regarded as immaterial and

the other with those where unavailability is made a condition to

the admission of the hearsay statement. Each of the two rules

concludes with a provision for hearsay statements not within one of

the specified exceptions "but having comparable circumstantial

guarantees of trustworthiness." Rules 803(24) and 804(b)(6). This

plan is submitted as calculated to encourage growth and development

in this area of the law, while conserving the values and experience

of the past as a guide to the future.

CONFRONTATION AND DUE PROCESS

Until very recently, decisions invoking the confrontation clause

of the Sixth Amendment were surprisingly few, a fact probably

explainable by the former inapplicability of the clause to the

states and by the hearsay rule's occupancy of much the same ground.

The pattern which emerges from the earlier cases invoking the

clause is substantially that of the hearsay rule, applied to

criminal cases: an accused is entitled to have the witnesses

against him testify under oath, in the presence of himself and

trier, subject to cross-examination; yet considerations of public

policy and necessity require the recognition of such exceptions as

dying declarations and former testimony of unavailable witnesses.

Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409

(1895); Motes v. United States, 178 U.S. 458, 20 S.Ct. 993, 44

L.Ed. 1150 (1900); Delaney v. United States, 263 U.S. 586, 44 S.Ct.

206, 68 L.Ed. 462 (1924). Beginning with Snyder v. Massachusetts,

291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), the Court began to

speak of confrontation as an aspect of procedural due process, thus

extending its applicability to state cases and to federal cases

other than criminal. The language of Snyder was that of an elastic

concept of hearsay. The deportation case of Bridges v. Wixon, 326

U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945), may be read broadly

as imposing a strictly construed right of confrontation in all

kinds of cases or narrowly as the product of a failure of the

Immigration and Naturalization Service to follow its own rules. In

re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), ruled

that cross-examination was essential to due process in a state

contempt proceeding, but in United States v. Nugent, 346 U.S. 1, 73

S.Ct. 991, 97 L.Ed. 1417 (1953), the court held that it was not an

essential aspect of a "hearing" for a conscientious objector under

the Selective Service Act. Stein v. New York, 346 U.S. 156, 196, 73

S.Ct. 1077, 97 L.Ed. 1522 (1953), disclaimed any purpose to read

the hearsay rule into the Fourteenth Amendment, but in Greene v.

McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959),

revocation of security clearance without confrontation and

cross-examination was held unauthorized, and a similar result was

reached in Willner v. Committee on Character, 373 U.S. 96, 83 S.Ct.

1175, 10 L.Ed.2d 224 (1963). Ascertaining the constitutional

dimensions of the confrontation-hearsay aggregate against the

background of these cases is a matter of some difficulty, yet the

general pattern is at least not inconsistent with that of the

hearsay rule.

In 1965 the confrontation clause was held applicable to the

states. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d

923 (1965). Prosecution use of former testimony given at a

preliminary hearing where petitioner was not represented by counsel

was a violation of the clause. The same result would have followed

under conventional hearsay doctrine read in the light of a

constitutional right to counsel, and nothing in the opinion

suggests any difference in essential outline between the hearsay

rule and the right of confrontation. In the companion case of

Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934

(1965), however, the result reached by applying the confrontation

clause is one reached less readily via the hearsay rule. A

confession implicating petitioner was put before the jury by

reading it to the witness in portions and asking if he made that

statement. The witness refused to answer on grounds of

self-incrimination. The result, said the Court, was to deny

cross-examination, and hence confrontation. True, it could broadly

be said that the confession was a hearsay statement which for all

practical purposes was put in evidence. Yet a more easily accepted

explanation of the opinion is that its real thrust was in the

direction of curbing undesirable prosecutorial behavior, rather

than merely applying rules of exclusion, and that the confrontation

clause was the means selected to achieve this end. Comparable facts

and a like result appeared in Brookhart v. Janis, 384 U.S. 1, 86

S.Ct. 1245, 16 L.Ed.2d 314 (1966).

The pattern suggested in Douglas was developed further and more

distinctly in a pair of cases at the end of the 1966 term. United

States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149

(1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18

L.Ed.2d 1178 (1967), hinged upon practices followed in identifying

accused persons before trial. This pretrial identification was said

to be so decisive an aspect of the case that accused was entitled

to have counsel present; a pretrial identification made in the

absence of counsel was not itself receivable in evidence and, in

addition, might fatally infect a courtroom identification. The

presence of counsel at the earlier identification was described as

a necessary prerequisite for "a meaningful confrontation at trial."

United States v. Wade, supra, 388 U.S. at p. 236, 87 S.Ct. at p.

1937. Wade involved no evidence of the fact of a prior

identification and hence was not susceptible of being decided on

hearsay grounds. In Gilbert, witnesses did testify to an earlier

identification, readily classifiable as hearsay under a fairly

strict view of what constitutes hearsay. The Court, however,

carefully avoided basing the decision on the hearsay ground,

choosing confrontation instead. 388 U.S. 263, 272, n. 3, 87 S.Ct.

1951. See also Parker v. Gladden, 385 U.S. 363 87 S.Ct. 468, 17

L.Ed.2d 420 (1966), holding that the right of confrontation was

violated when the bailiff made prejudicial statements to jurors,

and Note, 75, Yale L.J. 1434 (1966).

Under the earlier cases, the confrontation clause may have been

little more than a constitutional embodiment of the hearsay rule,

even including traditional exceptions but with some room for

expanding them along similar lines. But under the recent cases the

impact of the clause clearly extends beyond the confines of the

hearsay rule. These considerations have led the Advisory Committee

to conclude that a hearsay rule can function usefully as an adjunct

to the confrontation right in constitutional areas and

independently in nonconstitutional areas. In recognition of the

separateness of the confrontation clause and the hearsay rule, and

to avoid inviting collisions between them or between the hearsay

rule and other exclusionary principles, the exceptions set forth in

Rules 803 and 804 are stated in terms of exemption from the general

exclusionary mandate of the hearsay rule, rather than in positive

terms of admissibility. See Uniform Rule 63(1) to (31) and

California Evidence Code Secs. 1200-1340.

-End-