Legislación
US (United States) Code. Title 28. Appendix 5
-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-
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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
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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-
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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-
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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
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ARTICLE II. JUDICIAL NOTICE
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28 USC APPENDIX Rule 201 01/06/03
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TITLE 28 - APPENDIX
FEDERAL RULES OF EVIDENCE
ARTICLE II. JUDICIAL NOTICE
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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.
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28 USC APPENDIX ARTICLE III. PRESUMPTIONS IN
CIVIL ACTIONS AND PROCEEDINGS 01/06/03
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TITLE 28 - APPENDIX
FEDERAL RULES OF EVIDENCE
ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS
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ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS
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28 USC APPENDIX Rule 301 01/06/03
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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 ¶ 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
¶ 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-
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