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28 USC APPENDIX Rule 801 01/06/03

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TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VIII. HEARSAY

-HEAD-

Rule 801. Definitions

-STATUTE-

The following definitions apply under this article:

(a) Statement. - A "statement" is (1) an oral or written

assertion or (2) nonverbal conduct of a person, if it is intended

by the person as an assertion.

(b) Declarant. - A "declarant" is a person who makes a statement.

(c) Hearsay. - "Hearsay" is a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.

(d) Statements which are not hearsay. - A statement is not

hearsay if -

(1) Prior statement by witness. - The declarant testifies at

the trial or hearing and is subject to cross-examination

concerning the statement, and the statement is (A) inconsistent

with the declarant's testimony, and was given under oath subject

to the penalty of perjury at a trial, hearing, or other

proceeding, or in a deposition, or (B) consistent with the

declarant's testimony and is offered to rebut an express or

implied charge against the declarant of recent fabrication or

improper influence or motive, or (C) one of identification of a

person made after perceiving the person; or

(2) Admission by party-opponent. - The statement is offered

against a party and is (A) the party's own statement, in either

an individual or a representative capacity or (B) a statement of

which the party has manifested an adoption or belief in its

truth, or (C) a statement by a person authorized by the party to

make a statement concerning the subject, or (D) a statement by

the party's agent or servant concerning a matter within the scope

of the agency or employment, made during the existence of the

relationship, or (E) a statement by a coconspirator of a party

during the course and in furtherance of the conspiracy. The

contents of the statement shall be considered but are not alone

sufficient to establish the declarant's authority under

subdivision (C), the agency or employment relationship and scope

thereof under subdivision (D), or the existence of the conspiracy

and the participation therein of the declarant and the party

against whom the statement is offered under subdivision (E).

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1938; Pub. L.

94-113, Sec. 1, Oct. 16, 1975, 89 Stat. 576; Mar. 2, 1987, eff.

Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Subdivision (a). The definition of "statement" assumes importance

because the term is used in the definition of hearsay in

subdivision (c). The effect of the definition of "statement" is to

exclude from the operation of the hearsay rule all evidence of

conduct, verbal or nonverbal, not intended as an assertion. The key

to the definition is that nothing is an assertion unless intended

to be one.

It can scarcely be doubted that an assertion made in words is

intended by the declarant to be an assertion. Hence verbal

assertions readily fall into the category of "statement." Whether

nonverbal conduct should be regarded as a statement for purposes of

defining hearsay requires further consideration. Some nonverbal

conduct, such as the act of pointing to identify a suspect in a

lineup, is clearly the equivalent of words, assertive in nature,

and to be regarded as a statement. Other nonverbal conduct,

however, may be offered as evidence that the person acted as he did

because of his belief in the existence of the condition sought to

be proved, from which belief the existence of the condition may be

inferred. This sequence is, arguably, in effect an assertion of the

existence of the condition and hence properly includable within the

hearsay concept. See Morgan, Hearsay Dangers and the Application of

the Hearsay Concept, 62 Harv.L. Rev. 177, 214, 217 (1948), and the

elaboration in Finman, Implied Assertions as Hearsay: Some

Criticisms of the Uniform Rules of Evidence, 14 Stan.L.Rev. 682

(1962). Admittedly evidence of this character is untested with

respect to the perception, memory, and narration (or their

equivalents) of the actor, but the Advisory Committee is of the

view that these dangers are minimal in the absence of an intent to

assert and do not justify the loss of the evidence on hearsay

grounds. No class of evidence is free of the possibility of

fabrication, but the likelihood is less with nonverbal than with

assertive verbal conduct. The situations giving rise to the

nonverbal conduct are such as virtually to eliminate questions of

sincerity. Motivation, the nature of the conduct, and the presence

or absence of reliance will bear heavily upon the weight to be

given the evidence. Falknor, The "Hear-Say" Rule as a "See-Do"

Rule: Evidence of Conduct, 33 Rocky Mt.L.Rev. 133 (1961). Similar

considerations govern nonassertive verbal conduct and verbal

conduct which is assertive but offered as a basis for inferring

something other than the matter asserted, also excluded from the

definition of hearsay by the language of subdivision (c).

When evidence of conduct is offered on the theory that it is not

a statement, and hence not hearsay, a preliminary determination

will be required to determine whether an assertion is intended. The

rule is so worded as to place the burden upon the party claiming

that the intention existed; ambiguous and doubtful cases will be

resolved against him and in favor of admissibility. The

determination involves no greater difficulty than many other

preliminary questions of fact. Maguire, The Hearsay System: Around

and Through the Thicket, 14 Vand.L.Rev. 741, 765-767 (1961).

For similar approaches, see Uniform Rule 62(1); California

Evidence Code Secs. 225, 1200; Kansas Code of Civil Procedure Sec.

60-459(a); New Jersey Evidence Rule 62(1)

Subdivision (c). The definition follows along familiar lines in

including only statements offered to prove the truth of the matter

asserted. McCormick Sec. 225; 5 Wigmore Sec. 1361, 6 id. Sec. 1766.

If the significance of an offered statement lies solely in the fact

that it was made, no issue is raised as to the truth of anything

asserted, and the statement is not hearsay. Emich Motors Corp. v.

General Motors Corp., 181 F.2d 70 (7th Cir. 1950), rev'd on other

grounds 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed 534, letters of

complaint from customers offered as a reason for cancellation of

dealer's franchise, to rebut contention that franchise was revoked

for refusal to finance sales through affiliated finance company.

The effect is to exclude from hearsay the entire category of

"verbal acts" and "verbal parts of an act," in which the statement

itself affects the legal rights of the parties or is a circumstance

bearing on conduct affecting their rights.

The definition of hearsay must, of course, be read with reference

to the definition of statement set forth in subdivision (a).

Testimony given by a witness in the course of court proceedings

is excluded since there is compliance with all the ideal conditions

for testifying.

Subdivision (d). Several types of statements which would

otherwise literally fall within the definition are expressly

excluded from it:

(1) Prior statement by witness. Considerable controversy has

attended the question whether a prior out-of-court statement by a

person now available for cross-examination concerning it, under

oath and in the presence of the trier of fact, should be classed as

hearsay. If the witness admits on the stand that he made the

statement and that it was true, he adopts the statement and there

is no hearsay problem. The hearsay problem arises when the witness

on the stand denies having made the statement or admits having made

it but denies its truth. The argument in favor of treating these

latter statements as hearsay is based upon the ground that the

conditions of oath, cross-examination, and demeanor observation did

not prevail at the time the statement was made and cannot

adequately be supplied by the later examination. The logic of the

situation is troublesome. So far as concerns the oath, its mere

presence has never been regarded as sufficient to remove a

statement from the hearsay category, and it receives much less

emphasis than cross-examination as a truth-compelling device. While

strong expressions are found to the effect that no conviction can

be had or important right taken away on the basis of statements not

made under fear of prosecution for perjury, Bridges v. Wixon, 326

U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945), the fact is that, of

the many common law exceptions to the hearsay rule, only that for

reported testimony has required the statement to have been made

under oath. Nor is it satisfactorily explained why

cross-examination cannot be conducted subsequently with success.

The decisions contending most vigorously for its inadequacy in fact

demonstrate quite thorough exploration of the weaknesses and doubts

attending the earlier statement. State v. Saporen, 205 Minn. 358,

285 N.W. 898 (1939); Ruhala v. Roby, 379 Mich. 102, 150 N.W.2d 146

(1967); People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441

P.2d 111 (1968). In respect to demeanor, as Judge Learned Hand

observed in Di Carlo v. United States, 6 F.2d 364 (2d Cir. 1925),

when the jury decides that the truth is not what the witness says

now, but what he said before, they are still deciding from what

they see and hear in court. The bulk of the case law nevertheless

has been against allowing prior statements of witnesses to be used

generally as substantive evidence. Most of the writers and Uniform

Rule 63(1) have taken the opposite position.

The position taken by the Advisory Committee in formulating this

part of the rule is founded upon an unwillingness to countenance

the general use of prior prepared statements as substantive

evidence, but with a recognition that particular circumstances call

for a contrary result. The judgment is one more of experience than

of logic. The rule requires in each instance, as a general

safeguard, that the declarant actually testify as a witness, and it

then enumerates three situations in which the statement is excepted

from the category of hearsay. Compare Uniform Rule 63(1) which

allows any out-of-court statement of a declarant who is present at

the trial and available for cross-examination.

(A) Prior inconsistent statements traditionally have been

admissible to impeach but not as substantive evidence. Under the

rule they are substantive evidence. As has been said by the

California Law Revision Commission with respect to a similar

provision:

"Section 1235 admits inconsistent statements of witnesses because

the dangers against which the hearsay rule is designed to protect

are largely nonexistent. The declarant is in court and may be

examined and cross-examined in regard to his statements and their

subject matter. In many cases, the inconsistent statement is more

likely to be true than the testimony of the witness at the trial

because it was made nearer in time to the matter to which it

relates and is less likely to be influenced by the controversy that

gave rise to the litigation. The trier of fact has the declarant

before it and can observe his demeanor and the nature of his

testimony as he denies or tries to explain away the inconsistency.

Hence, it is in as good a position to determine the truth or

falsity of the prior statement as it is to determine the truth or

falsity of the inconsistent testimony given in court. Moreover,

Section 1235 will provide a party with desirable protection against

the 'turncoat' witness who changes his story on the stand and

deprives the party calling him of evidence essential to his case."

Comment, California Evidence Code Sec. 1235. See also McCormick

Sec. 39. The Advisory Committee finds these views more convincing

than those expressed in People v. Johnson, 68 Cal.2d 646, 68

Cal.Rptr. 599, 441 P.2d 111 (1968). The constitutionality of the

Advisory Committee's view was upheld in California v. Green, 399

U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Moreover, the

requirement that the statement be inconsistent with the testimony

given assures a thorough exploration of both versions while the

witness is on the stand and bars any general and indiscriminate use

of previously prepared statements.

(B) Prior consistent statements traditionally have been

admissible to rebut charges of recent fabrication or improper

influence or motive but not as substantive evidence. Under the rule

they are substantive evidence. The prior statement is consistent

with the testimony given on the stand, and, if the opposite party

wishes to open the door for its admission in evidence, no sound

reason is apparent why it should not be received generally.

(C) The admission of evidence of identification finds substantial

support, although it falls beyond a doubt in the category of prior

out-of-court statements. Illustrative are People v. Gould, 54

Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 (1960); Judy v. State,

218 Md. 168, 146 A.2d 29 (1958); State v. Simmons, 63 Wash.2d 17,

385 P.2d 389 (1963); California Evidence Code Sec. 1238; New Jersey

Evidence Rule 63(1)(c); N.Y. Code of Criminal Procedure Sec. 393-b.

Further cases are found in 4 Wigmore Sec. 1130. The basis is the

generally unsatisfactory and inconclusive nature of courtroom

identifications as compared with those made at an earlier time

under less suggestive conditions. The Supreme Court considered the

admissibility of evidence of prior identification in Gilbert v.

California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

Exclusion of lineup identification was held to be required because

the accused did not then have the assistance of counsel.

Significantly, the Court carefully refrained from placing its

decision on the ground that testimony as to the making of a prior

out-of-court identification ("That's the man") violated either the

hearsay rule or the right of confrontation because not made under

oath, subject to immediate cross-examination, in the presence of

the trier. Instead the Court observed:

"There is a split among the States concerning the admissibility

of prior extra-judicial identifications, as independent evidence of

identity, both by the witness and third parties present at the

prior identification. See 71 ALR2d 449. It has been held that the

prior identification is hearsay, and, when admitted through the

testimony of the identifier, is merely a prior consistent

statement. The recent trend, however, is to admit the prior

identification under the exception that admits as substantive

evidence a prior communication by a witness who is available for

cross-examination at the trial. See 5 ALR2d Later Case Service

1225-1228. * * *" 388 U.S. at 272, n. 3, 87 S.Ct. at 1956.

(2) Admissions. Admissions by a party-opponent are excluded from

the category of hearsay on the theory that their admissibility in

evidence is the result of the adversary system rather than

satisfaction of the conditions of the hearsay rule. Strahorn, A

Reconsideration of the Hearsay Rule and Admissions, 85 U.Pa.L.Rev.

484, 564 (1937); Morgan, Basic Problems of Evidence 265 (1962); 4

Wigmore Sec. 1048. No guarantee of trustworthiness is required in

the case of an admission. The freedom which admissions have enjoyed

from technical demands of searching for an assurance of

trustworthiness in some against-interest circumstance, and from the

restrictive influences of the opinion rule and the rule requiring

firsthand knowledge, when taken with the apparently prevalent

satisfaction with the results, calls for generous treatment of this

avenue to admissibility.

The rule specifies five categories of statements for which the

responsibility of a party is considered sufficient to justify

reception in evidence against him:

(A) A party's own statement is the classic example of an

admission. If he has a representative capacity and the statement is

offered against him in that capacity, no inquiry whether he was

acting in the representative capacity in making the statement is

required; the statement need only be relevant to represent affairs.

To the same effect in California Evidence Code Sec. 1220. Compare

Uniform Rule 63(7), requiring a statement to be made in a

representative capacity to be admissible against a party in a

representative capacity.

(B) Under established principles an admission may be made by

adopting or acquiescing in the statement of another. While

knowledge of contents would ordinarily be essential, this is not

inevitably so: "X is a reliable person and knows what he is talking

about." See McCormick Sec. 246, p. 527, n. 15. Adoption or

acquiescence may be manifested in any appropriate manner. When

silence is relied upon, the theory is that the person would, under

the circumstances, protest the statement made in his presence, if

untrue. The decision in each case calls for an evaluation in terms

of probable human behavior. In civil cases, the results have

generally been satisfactory. In criminal cases, however,

troublesome questions have been raised by decisions holding that

failure to deny is an admission: the inference is a fairly weak

one, to begin with; silence may be motivated by advice of counsel

or realization that "anything you say may be used against you";

unusual opportunity is afforded to manufacture evidence; and

encroachment upon the privilege against self-incrimination seems

inescapably to be involved. However, recent decisions of the

Supreme Court relating to custodial interrogation and the right to

counsel appear to resolve these difficulties. Hence the rule

contains no special provisions concerning failure to deny in

criminal cases.

(C) No authority is required for the general proposition that a

statement authorized by a party to be made should have the status

of an admission by the party. However, the question arises whether

only statements to third persons should be so regarded, to the

exclusion of statements by the agent to the principal. The rule is

phrased broadly so as to encompass both. While it may be argued

that the agent authorized to make statements to his principal does

not speak for him, Morgan, Basic Problems of Evidence 273 (1962),

communication to an outsider has not generally been thought to be

an essential characteristic of an admission. Thus a party's books

or records are usable against him, without regard to any intent to

disclose to third persons. 5 Wigmore Sec. 1557. See also McCormick

Sec. 78, pp. 159-161. In accord is New Jersey Evidence Rule

63(8)(a). Cf. Uniform Rule 63(8)(a) and California Evidence Code

Sec. 1222 which limit status as an admission in this regard to

statements authorized by the party to be made "for" him, which is

perhaps an ambiguous limitation to statements to third persons.

Falknor, Vicarious Admissions and the Uniform Rules, 14 Vand.L.

Rev. 855, 860-861 (1961).

(D) The tradition has been to test the admissibility of

statements by agents, as admissions, by applying the usual test of

agency. Was the admission made by the agent acting in the scope of

his employment? Since few principals employ agents for the purpose

of making damaging statements, the usual result was exclusion of

the statement. Dissatisfaction with this loss of valuable and

helpful evidence has been increasing. A substantial trend favors

admitting statements related to a matter within the scope of the

agency or employment. Grayson v. Williams, 256 F.2d 61 (10th Cir.

1958); Koninklijke Luchtvaart Maatschappij N.V. KLM Royal Dutch

Airlines v. Tuller, 110 U.S.App.D.C. 282, 292 F.2d 775, 784 (1961);

Martin v. Savage Truck Lines, Inc., 121 F.Supp. 417 (D.D.C. 1054),

and numerous state court decisions collected in 4 Wigmore, 1964

Supp., pp. 66-73, with comments by the editor that the statements

should have been excluded as not within scope of agency. For the

traditional view see Northern Oil Co. v. Socony Mobile Oil Co., 347

F.2d 81, 85 (2d Cir. 1965) and cases cited therein. Similar

provisions are found in Uniform Rule 63(9)(a), Kansas Code of Civil

Procedure Sec. 60-460(i)(1), and New Jersey Evidence Rule 63(9)(a).

(E) The limitation upon the admissibility of statements of

co-conspirators to those made "during the course and in furtherance

of the conspiracy" is in the accepted pattern. While the broadened

view of agency taken in item (iv) might suggest wider admissibility

of statements of co-conspirators, the agency theory of conspiracy

is at best a fiction and ought not to serve as a basis for

admissibility beyond that already established. See Levie, Hearsay

and Conspiracy, 52 Mich.L.Rev. 1159 (1954); Comment, 25

U.Chi.L.Rev. 530 (1958). The rule is consistent with the position

of the Supreme Court in denying admissibility to statements made

after the objectives of the conspiracy have either failed or been

achieved. Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716,

93 L.Ed. 790 (1949); Wong Sun v. United States, 371 U.S. 471, 490,

83 S.Ct. 407, 9 L.Ed.2d 441 (1963). For similarly limited

provisions see California Evidence Code Sec. 1223 and New Jersey

Rule 63(9)(b). Cf. Uniform Rule 63(9)(b).

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

Present federal law, except in the Second Circuit, permits the

use of prior inconsistent statements of a witness for impeachment

only. Rule 801(d)(1) as proposed by the Court would have permitted

all such statements to be admissible as substantive evidence, an

approach followed by a small but growing number of State

jurisdictions and recently held constitutional in California v.

Green, 399 U.S. 149 (1970). Although there was some support

expressed for the Court Rule, based largely on the need to

counteract the effect of witness intimidation in criminal cases,

the Committee decided to adopt a compromise version of the Rule

similar to the position of the Second Circuit. The Rule as amended

draws a distinction between types of prior inconsistent statements

(other than statements of identification of a person made after

perceiving him which are currently admissible, see United States v.

Anderson, 406 F.2d 719, 720 (4th Cir.), cert. denied, 395 U.S. 967

(1969)) and allows only those made while the declarant was subject

to cross-examination at a trial or hearing or in a deposition, to

be admissible for their truth. Compare United States v. DeSisto,

329 F.2d 929 (2nd Cir.), cert. denied, 377 U.S. 979 (1964); United

States v. Cunningham, 446 F.2d 194 (2nd Cir. 1971) (restricting the

admissibility of prior inconsistent statements as substantive

evidence to those made under oath in a formal proceeding, but not

requiring that there have been an opportunity for

cross-examination). The rationale for the Committee's decision is

that (1) unlike in most other situations involving unsworn or oral

statements, there can be no dispute as to whether the prior

statement was made; and (2) the context of a formal proceeding, an

oath, and the opportunity for cross-examination provide firm

additional assurances of the reliability of the prior statement.

NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277

Rule 801 defines what is and what is not hearsay for the purpose

of admitting a prior statement as substantive evidence. A prior

statement of a witness at a trial or hearing which is inconsistent

with his testimony is, of course, always admissible for the purpose

of impeaching the witness' credibility.

As submitted by the Supreme Court, subdivision (d)(1)(A) made

admissible as substantive evidence the prior statement of a witness

inconsistent with his present testimony.

The House severely limited the admissibility of prior

inconsistent statements by adding a requirement that the prior

statement must have been subject to cross-examination, thus

precluding even the use of grand jury statements. The requirement

that the prior statement must have been subject to

cross-examination appears unnecessary since this rule comes into

play only when the witness testifies in the present trial. At that

time, he is on the stand and can explain an earlier position and be

cross-examined as to both.

The requirement that the statement be under oath also appears

unnecessary. Notwithstanding the absence of an oath contemporaneous

with the statement, the witness, when on the stand, qualifying or

denying the prior statement, is under oath. In any event, of all

the many recognized exceptions to the hearsay rule, only one

(former testimony) requires that the out-of-court statement have

been made under oath. With respect to the lack of evidence of the

demeanor of the witness at the time of the prior statement, it

would be difficult to improve upon Judge Learned Hand's observation

that when the jury decides that the truth is not what the witness

says now but what he said before, they are still deciding from what

they see and hear in court [Di Carlo v. U.S., 6 F.2d 364 (2d Cir.

1925)].

The rule as submitted by the Court has positive advantages. The

prior statement was made nearer in time to the events, when memory

was fresher and intervening influences had not been brought into

play. A realistic method is provided for dealing with the turncoat

witness who changes his story on the stand [see Comment, California

Evidence Code Sec. 1235; McCormick, Evidence, Sec. 38 (2nd ed.

1972)].

New Jersey, California, and Utah have adopted a rule similar to

this one; and Nevada, New Mexico, and Wisconsin have adopted the

identical Federal rule.

For all of these reasons, we think the House amendment should be

rejected and the rule as submitted by the Supreme Court reinstated.

[It would appear that some of the opposition to this Rule is based

on a concern that a person could be convicted solely upon evidence

admissible under this Rule. The Rule, however, is not addressed to

the question of the sufficiency of evidence to send a case to the

jury, but merely as to its admissibility. Factual circumstances

could well arise where, if this were the sole evidence, dismissal

would be appropriate].

As submitted by the Supreme Court and as passed by the House,

subdivision (d)(1)(c) of rule 801 made admissible the prior

statement identifying a person made after perceiving him. The

committee decided to delete this provision because of the concern

that a person could be convicted solely upon evidence admissible

under this subdivision.

The House approved the long-accepted rule that "a statement by a

coconspirator of a party during the course and in furtherance of

the conspiracy" is not hearsay as it was submitted by the Supreme

Court. While the rule refers to a coconspirator, it is this

committee's understanding that the rule is meant to carry forward

the universally accepted doctrine that a joint venturer is

considered as a coconspirator for the purposes of this rule even

though no conspiracy has been charged. United States v. Rinaldi,

393 F.2d 97, 99 (2d Cir.), cert. denied 393 U.S. 913 (1968); United

States v. Spencer, 415 F.2d 1301, 1304 (7th Cir. 1969).

NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597

Rule 801 supplies some basic definitions for the rules of

evidence that deal with hearsay. Rule 801(d)(1) defines certain

statements as not hearsay. The Senate amendments make two changes

in it.

The House bill provides that a statement is not hearsay if the

declarant testifies and is subject to cross-examination concerning

the statement and if the statement is inconsistent with his

testimony and was given under oath subject to cross-examination and

subject to the penalty of perjury at a trial or hearing or in a

deposition. The Senate amendment drops the requirement that the

prior statement be given under oath subject to cross-examination

and subject to the penalty of perjury at a trial or hearing or in a

deposition.

The Conference adopts the Senate amendment with an amendment, so

that the rule now requires that the prior inconsistent statement be

given under oath subject to the penalty of perjury at a trial,

hearing, or other proceeding, or in a deposition. The rule as

adopted covers statements before a grand jury. Prior inconsistent

statements may, of course, be used for impeaching the credibility

of a witness. When the prior inconsistent statement is one made by

a defendant in a criminal case, it is covered by Rule 801(d)(2).

The House bill provides that a statement is not hearsay if the

declarant testifies and is subject to cross-examination concerning

the statement and the statement is one of identification of a

person made after perceiving him. The Senate amendment eliminated

this provision.

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 - 1997 AMENDMENT

Rule 801(d)(2) has been amended in order to respond to three

issues raised by Bourjaily v. United States, 483 U.S. 171 (1987).

First, the amendment codifies the holding in Bourjaily by stating

expressly that a court shall consider the contents of a

coconspirator's statement in determining "the existence of the

conspiracy and the participation therein of the declarant and the

party against whom the statement is offered." According to

Bourjaily, Rule 104(a) requires these preliminary questions to be

established by a preponderance of the evidence.

Second, the amendment resolves an issue on which the Court had

reserved decision. It provides that the contents of the declarant's

statement do not alone suffice to establish a conspiracy in which

the declarant and the defendant participated. The court must

consider in addition the circumstances surrounding the statement,

such as the identity of the speaker, the context in which the

statement was made, or evidence corroborating the contents of the

statement in making its determination as to each preliminary

question. This amendment is in accordance with existing practice.

Every court of appeals that has resolved this issue requires some

evidence in addition to the contents of the statement. See, e.g.,

United States v. Beckham, 968 F.2d 47, 51 (D.C.Cir. 1992); United

States v. Sepulveda, 15 F.3d 1161, 1181-82 (1st Cir. 1993), cert.

denied, 114 S.Ct. 2714 (1994); United States v. Daly, 842 F.2d

1380, 1386 (2d Cir.), cert. denied, 488 U.S. 821 (1988); United

States v. Clark, 18 F.3d 1337, 1341-42 (6th Cir.), cert. denied,

115 S.Ct. 152 (1994); United States v. Zambrana, 841 F.2d 1320,

1344-45 (7th Cir. 1988); United States v. Silverman, 861 F.2d 571,

577 (9th Cir. 1988); United States v. Gordon, 844 F.2d 1397, 1402

(9th Cir. 1988); United States v. Hernandez, 829 F.2d 988, 993

(10th Cir. 1987), cert. denied, 485 U.S. 1013 (1988); United States

v. Byrom, 910 F.2d 725, 736 (11th Cir. 1990).

Third, the amendment extends the reasoning of Bourjaily to

statements offered under subdivisions (C) and (D) of Rule

801(d)(2). In Bourjaily, the Court rejected treating foundational

facts pursuant to the law of agency in favor of an evidentiary

approach governed by Rule 104(a). The Advisory Committee believes

it appropriate to treat analogously preliminary questions relating

to the declarant's authority under subdivision (C), and the agency

or employment relationship and scope thereof under subdivision (D).

GAP Report on Rule 801. The word "shall" was substituted for the

word "may" in line 19. The second sentence of the committee note

was changed accordingly.

AMENDMENT BY PUBLIC LAW

1975 - Subd. (d)(1). Pub. L. 94-113 added cl. (C).

EFFECTIVE DATE OF 1975 AMENDMENT

Section 2 of Pub. L. 94-113 provided that: "This Act [enacting

subd. (d)(1)(C)] shall become effective on the fifteenth day after

the date of the enactment of this Act [Oct. 16, 1975]."

-End-

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28 USC APPENDIX Rule 802 01/06/03

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TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VIII. HEARSAY

-HEAD-

Rule 802. Hearsay Rule

-STATUTE-

Hearsay is not admissible except as provided by these rules or by

other rules prescribed by the Supreme Court pursuant to statutory

authority or by Act of Congress.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1939.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The provision excepting from the operation of the rule hearsay

which is made admissible by other rules adopted by the Supreme

Court or by Act of Congress continues the admissibility thereunder

of hearsay which would not qualify under these Evidence Rules. The

following examples illustrate the working of the exception:

-End-

-CITE-

28 USC APPENDIX Rule 803 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VIII. HEARSAY

-HEAD-

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

-STATUTE-

The following are not excluded by the hearsay rule, even though

the declarant is available as a witness:

(1) Present sense impression. - A statement describing or

explaining an event or condition made while the declarant was

perceiving the event or condition, or immediately thereafter.

(2) Excited utterance. - A statement relating to a startling

event or condition made while the declarant was under the stress

of excitement caused by the event or condition.

(3) Then existing mental, emotional, or physical condition. - A

statement of the declarant's then existing state of mind,

emotion, sensation, or physical condition (such as intent, plan,

motive, design, mental feeling, pain, and bodily health), but not

including a statement of memory or belief to prove the fact

remembered or believed unless it relates to the execution,

revocation, identification, or terms of declarant's will.

(4) Statements for purposes of medical diagnosis or treatment.

- Statements made for purposes of medical diagnosis or treatment

and describing medical history, or past or present symptoms,

pain, or sensations, or the inception or general character of the

cause or external source thereof insofar as reasonably pertinent

to diagnosis or treatment.

(5) Recorded recollection. - A memorandum or record concerning

a matter about which a witness once had knowledge but now has

insufficient recollection to enable the witness to testify fully

and accurately, shown to have been made or adopted by the witness

when the matter was fresh in the witness' memory and to reflect

that knowledge correctly. If admitted, the memorandum or record

may be read into evidence but may not itself be received as an

exhibit unless offered by an adverse party.

(6) Records of regularly conducted activity. - A memorandum,

report, record, or data compilation, in any form, of acts,

events, conditions, opinions, or diagnoses, made at or near the

time by, or from information transmitted by, a person with

knowledge, if kept in the course of a regularly conducted

business activity, and if it was the regular practice of that

business activity to make the memorandum, report, record or data

compilation, all as shown by the testimony of the custodian or

other qualified witness, or by certification that complies with

Rule 902(11), Rule 902(12), or a statute permitting

certification, unless the source of information or the method or

circumstances of preparation indicate lack of trustworthiness.

The term "business" as used in this paragraph includes business,

institution, association, profession, occupation, and calling of

every kind, whether or not conducted for profit.

(7) Absence of entry in records kept in accordance with the

provisions of paragraph (6). - Evidence that a matter is not

included in the memoranda reports, records, or data compilations,

in any form, kept in accordance with the provisions of paragraph

(6), to prove the nonoccurrence or nonexistence of the matter, if

the matter was of a kind of which a memorandum, report, record,

or data compilation was regularly made and preserved, unless the

sources of information or other circumstances indicate lack of

trustworthiness.

(8) Public records and reports. - Records, reports, statements,

or data compilations, in any form, of public offices or agencies,

setting forth (A) the activities of the office or agency, or (B)

matters observed pursuant to duty imposed by law as to which

matters there was a duty to report, excluding, however, in

criminal cases matters observed by police officers and other law

enforcement personnel, or (C) in civil actions and proceedings

and against the Government in criminal cases, factual findings

resulting from an investigation made pursuant to authority

granted by law, unless the sources of information or other

circumstances indicate lack of trustworthiness.

(9) Records of vital statistics. - Records or data

compilations, in any form, of births, fetal deaths, deaths, or

marriages, if the report thereof was made to a public office

pursuant to requirements of law.

(10) Absence of public record or entry. - To prove the absence

of a record, report, statement, or data compilation, in any form,

or the nonoccurrence or nonexistence of a matter of which a

record, report, statement, or data compilation, in any form, was

regularly made and preserved by a public office or agency,

evidence in the form of a certification in accordance with rule

902, or testimony, that diligent search failed to disclose the

record, report, statement, or data compilation, or entry.

(11) Records of religious organizations. - Statements of

births, marriages, divorces, deaths, legitimacy, ancestry,

relationship by blood or marriage, or other similar facts of

personal or family history, contained in a regularly kept record

of a religious organization.

(12) Marriage, baptismal, and similar certificates. -

Statements of fact contained in a certificate that the maker

performed a marriage or other ceremony or administered a

sacrament, made by a clergyman, public official, or other person

authorized by the rules or practices of a religious organization

or by law to perform the act certified, and purporting to have

been issued at the time of the act or within a reasonable time

thereafter.

(13) Family records. - Statements of fact concerning personal

or family history contained in family Bibles, genealogies,

charts, engravings on rings, inscriptions on family portraits,

engravings on urns, crypts, or tombstones, or the like.

(14) Records of documents affecting an interest in property. -

The record of a document purporting to establish or affect an

interest in property, as proof of the content of the original

recorded document and its execution and delivery by each person

by whom it purports to have been executed, if the record is a

record of a public office and an applicable statute authorizes

the recording of documents of that kind in that office.

(15) Statements in documents affecting an interest in property.

- A statement contained in a document purporting to establish or

affect an interest in property if the matter stated was relevant

to the purpose of the document, unless dealings with the property

since the document was made have been inconsistent with the truth

of the statement or the purport of the document.

(16) Statements in ancient documents. - Statements in a

document in existence twenty years or more the authenticity of

which is established.

(17) Market reports, commercial publications. - Market

quotations, tabulations, lists, directories, or other published

compilations, generally used and relied upon by the public or by

persons in particular occupations.

(18) Learned treatises. - To the extent called to the attention

of an expert witness upon cross-examination or relied upon by the

expert witness in direct examination, statements contained in

published treatises, periodicals, or pamphlets on a subject of

history, medicine, or other science or art, established as a

reliable authority by the testimony or admission of the witness

or by other expert testimony or by judicial notice. If admitted,

the statements may be read into evidence but may not be received

as exhibits.

(19) Reputation concerning personal or family history. -

Reputation among members of a person's family by blood, adoption,

or marriage, or among a person's associates, or in the community,

concerning a person's birth, adoption, marriage, divorce, death,

legitimacy, relationship by blood, adoption, or marriage,

ancestry, or other similar fact of personal or family history.

(20) Reputation concerning boundaries or general history. -

Reputation in a community, arising before the controversy, as to

boundaries of or customs affecting lands in the community, and

reputation as to events of general history important to the

community or State or nation in which located.

(21) Reputation as to character. - Reputation of a person's

character among associates or in the community.

(22) Judgment of previous conviction. - Evidence of a final

judgment, entered after a trial or upon a plea of guilty (but not

upon a plea of nolo contendere), adjudging a person guilty of a

crime punishable by death or imprisonment in excess of one year,

to prove any fact essential to sustain the judgment, but not

including, when offered by the Government in a criminal

prosecution for purposes other than impeachment, judgments

against persons other than the accused. The pendency of an appeal

may be shown but does not affect admissibility.

(23) Judgment as to personal, family, or general history, or

boundaries. - Judgments as proof of matters of personal, family

or general history, or boundaries, essential to the judgment, if

the same would be provable by evidence of reputation.

[(24) Other exceptions.] [Transferred to Rule 807]

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1939; Pub. L.

94-149, Sec. 1(11), Dec. 12, 1975, 89 Stat. 805; Mar. 2, 1987, eff.

Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997; Apr. 17, 2000, eff.

Dec. 1, 2000.)

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NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The exceptions are phrased in terms of nonapplication of the

hearsay rule, rather than in positive terms of admissibility, in

order to repel any implication that other possible grounds for

exclusion are eliminated from consideration.

The present rule proceeds upon the theory that under appropriate

circumstances a hearsay statement may possess circumstantial

guarantees of trustworthiness sufficient to justify nonproduction

of the declarant in person at the trial even though he may be

available. The theory finds vast support in the many exceptions to

the hearsay rule developed by the common law in which

unavailability of the declarant is not a relevant factor. The

present rule is a synthesis of them, with revision where modern

developments and conditions are believed to make that course

appropriate.

In a hearsay situation, the declarant is, of course, a witness,

and neither this rule nor Rule 804 dispenses with the requirement

of firsthand knowledge. It may appear from his statement or be

inferable from circumstances.

See Rule 602.

Exceptions (1) and (2). In considerable measure these two

examples overlap, though based on somewhat different theories. The

most significant practical difference will lie in the time lapse

allowable between event and statement.

The underlying theory of Exception [paragraph] (1) is that

substantial contemporaneity of event and statement negative the

likelihood of deliberate of conscious misrepresentation. Moreover,

if the witness is the declarant, he may be examined on the

statement. If the witness is not the declarant, he may be examined

as to the circumstances as an aid in evaluating the statement.

Morgan, Basic Problems of Evidence 340-341 (1962).

The theory of Exception [paragraph] (2) is simply that

circumstances may produce a condition of excitement which

temporarily stills the capacity of reflection and produces

utterances free of conscious fabrication. 6 Wigmore Sec. 1747, p.

135. Spontaneity is the key factor in each instance, though arrived

at by somewhat different routes. Both are needed in order to avoid

needless niggling.

While the theory of Exception [paragraph] (2) has been criticized

on the ground that excitement impairs accuracy of observation as

well as eliminating conscious fabrication, Hutchins and Slesinger,

Some Observations on the Law of Evidence: Spontaneous Exclamations,

28 Colum.L.Rev. 432 (1928), it finds support in cases without

number. See cases in 6 Wigmore Sec. 1750; Annot., 53 A.L.R.2d 1245

(statements as to cause of or responsibility for motor vehicle

accident); Annot., 4 A.L.R.3d 149 (accusatory statements by

homicide victims). Since unexciting events are less likely to evoke

comment, decisions involving Exception [paragraph] (1) are far less

numerous. Illustrative are Tampa Elec. Co. v. Getrost, 151 Fla.

558, 10 So.2d 83 (1942); Houston Oxygen Co. v. Davis, 139 Tex. 1,

161 S.W.2d 474 (1942); and cases cited in McCormick Sec. 273, p.

585, n. 4.

With respect to the time element, Exception [paragraph] (1)

recognizes that in many, if not most, instances precise

contemporaneity is not possible, and hence a slight lapse is

allowable. Under Exception [paragraph] (2) the standard of

measurement is the duration of the state of excitement. "How long

can excitement prevail? Obviously there are no pat answers and the

character of the transaction or event will largely determine the

significance of the time factor." Slough, Spontaneous Statements

and State of Mind, 46 Iowa L.Rev. 224, 243 (1961); McCormick Sec.

272, p. 580.

Participation by the declarant is not required: a nonparticipant

may be moved to describe what he perceives, and one may be startled

by an event in which he is not an actor. Slough, supra; McCormick,

supra; 6 Wigmore Sec. 1755; Annot., 78 A.L.R.2d 300.

Whether proof of the startling event may be made by the statement

itself is largely an academic question, since in most cases there

is present at least circumstantial evidence that something of a

startling nature must have occurred. For cases in which the

evidence consists of the condition of the declarant (injuries,

state of shock), see Insurance Co. v. Mosely, 75 U.S. (8 Wall.),

397, 19 L.Ed. 437 (1869); Wheeler v. United States, 93 U.S.A.App.

D.C. 159, 211 F.2d 19 (1953); cert. denied 347 U.S. 1019, 74 S.Ct.

876, 98 L.Ed. 1140; Wetherbee v. Safety Casualty Co., 219 F.2d 274

(5th Cir. 1955); Lampe v. United States, 97 U.S.App.D.C. 160, 229

F.2d 43 (1956). Nevertheless, on occasion the only evidence may be

the content of the statement itself, and rulings that it may be

sufficient are described as "increasing," Slough, supra at 246, and

as the "prevailing practice," McCormick Sec. 272, p. 579.

Illustrative are Armour & Co. v. Industrial Commission, 78 Colo.

569, 243 P. 546 (1926); Young v. Stewart, 191 N.C. 297, 131 S.E.

735 (1926). Moreover, under Rule 104(a) the judge is not limited by

the hearsay rule in passing upon preliminary questions of fact.

Proof of declarant's perception by his statement presents similar

considerations when declarant is identified. People v. Poland, 22

Ill.2d 175, 174 N.E.2d 804 (1961). However, when declarant is an

unidentified bystander, the cases indicate hesitancy in upholding

the statement alone as sufficient, Garrett v. Howden, 73 N.M. 307,

387 P.2d 874 (1963); Beck v. Dye, 200 Wash. 1, 92 P.2d 1113 (1939),

a result which would under appropriate circumstances be consistent

with the rule.

Permissible subject matter of the statement is limited under

Exception [paragraph] (1) to description or explanation of the

event or condition, the assumption being that spontaneity, in the

absence of a startling event, may extend no farther. In Exception

[paragraph] (2), however, the statement need only "relate" to the

startling event or condition, thus affording a broader scope of

subject matter coverage. 6 Wigmore Secs. 1750, 1754. See Sanitary

Grocery Co. v. Snead, 67 App.D.C. 129, 90 F.2d 374 (1937),

slip-and-fall case sustaining admissibility of clerk's statement,

"That has been on the floor for a couple of hours," and Murphy Auto

Parts Co., Inc. v. Ball, 101 U.S.App.D.C. 416, 249 F.2d 508 (1957),

upholding admission, on issue of driver's agency, of his statement

that he had to call on a customer and was in a hurry to get home.

Quick, Hearsay, Excitement, Necessity and the Uniform Rules: A

Reappraisal of Rule 63(4), 6 Wayne L.Rev. 204, 206-209 (1960).

Similar provisions are found in Uniform Rule 63(4)(a) and (b);

California Evidence Code Sec. 1240 (as to Exception (2) only);

Kansas Code of Civil Procedure Sec. 60-460(d)(1) and (2); New

Jersey Evidence Rule 63(4).

Exception (3) is essentially a specialized application of

Exception [paragraph] (1), presented separately to enhance its

usefulness and accessibility. See McCormick Secs. 265, 268.

The exclusion of "statements of memory or belief to prove the

fact remembered or believed" is necessary to avoid the virtual

destruction of the hearsay rule which would otherwise result from

allowing state of mind, provable by a hearsay statement, to serve

as the basis for an inference of the happening of the event which

produced the state of mind). Shepard v. United States, 290 U.S. 96,

54 S.Ct. 22, 78 L.Ed. 196 (1933); Maguire, The Hillmon Case -

Thirty-three Years After, 38 Harv.L.Rev. 709, 719-731 (1925);

Hinton, States of Mind and the Hearsay Rule, 1 U.Chi.L.Rev. 394,

421-423 (1934). The rule of Mutual Life Ins. Co. v. Hillman, 145

U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892), allowing evidence of

intention as tending to prove the doing of the act intended, is of

course, left undisturbed.

The carving out, from the exclusion mentioned in the preceding

paragraph, of declarations relating to the execution, revocation,

identification, or terms of declarant's will represents an ad hoc

judgment which finds ample reinforcement in the decisions, resting

on practical grounds of necessity and expediency rather than logic.

McCormick Sec. 271, pp. 577-578; Annot., 34 A.L.R.2d 588, 62

A.L.R.2d 855. A similar recognition of the need for and practical

value of this kind of evidence is found in California Evidence Code

Sec. 1260.

Exception (4). Even those few jurisdictions which have shied away

from generally admitting statements of present condition have

allowed them if made to a physician for purposes of diagnosis and

treatment in view of the patient's strong motivation to be

truthful. McCormick Sec. 266, p. 563. The same guarantee of

trustworthiness extends to statements of past conditions and

medical history, made for purposes of diagnosis or treatment. It

also extends to statements as to causation, reasonably pertinent to

the same purposes, in accord with the current trend, Shell Oil Co.

v. Industrial Commission, 2 Ill.2d 590, 119 N.E.2d 224 (1954);

McCormick Sec. 266, p. 564; New Jersey Evidence Rule 63(12)(c).

Statements as to fault would not ordinarily qualify under this

latter language. Thus a patient's statement that he was struck by

an automobile would qualify but not his statement that the car was

driven through a red light. Under the exception the statement need

not have been made to a physician. Statements to hospital

attendants, ambulance drivers, or even members of the family might

be included.

Conventional doctrine has excluded from the hearsay exception, as

not within its guarantee of truthfulness, statements to a physician

consulted only for the purpose of enabling him to testify. While

these statements were not admissible as substantive evidence, the

expert was allowed to state the basis of his opinion, including

statements of this kind. The distinction thus called for was one

most unlikely to be made by juries. The rule accordingly rejects

the limitation. This position is consistent with the provision of

Rule 703 that the facts on which expert testimony is based need not

be admissible in evidence if of a kind ordinarily relied upon by

experts in the field.

Exception (5). A hearsay exception for recorded recollection is

generally recognized and has been described as having "long been

favored by the federal and practically all the state courts that

have had occasion to decide the question." United States v. Kelly,

349 F.2d 720, 770 (2d Cir. 1965), citing numerous cases and

sustaining the exception against a claimed denial of the right of

confrontation. Many additional cases are cited in Annot., 82

A.L.R.2d 473, 520. The guarantee of trustworthiness is found in the

reliability inherent in a record made while events were still fresh

in mind and accurately reflecting them. Owens v. State, 67 Md. 307,

316, 10 A. 210, 212 (1887).

The principal controversy attending the exception has centered,

not upon the propriety of the exception itself, but upon the

question whether a preliminary requirement of impaired memory on

the part of the witness should be imposed. The authorities are

divided. If regard be had only to the accuracy of the evidence,

admittedly impairment of the memory of the witness adds nothing to

it and should not be required. McCormick Sec. 277, p. 593; 3

Wigmore Sec. 738, p. 76; Jordan v. People, 151 Colo. 133, 376 P.2d

699 (1962), cert. denied 373 U.S. 944, 83 S.Ct. 1553, 10 L.Ed.2d

699; Hall v. State, 223 Md. 158, 162 A.2d 751 (1960); State v.

Bindhammer, 44 N.J. 372, 209 A.2d 124 (1965). Nevertheless, the

absence of the requirement, it is believed, would encourage the use

of statements carefully prepared for purposes of litigation under

the supervision of attorneys, investigators, or claim adjusters.

Hence the example includes a requirement that the witness not have

"sufficient recollection to enable him to testify fully and

accurately." To the same effect are California Evidence Code Sec.

1237 and New Jersey Rule 63(1)(b), and this has been the position

of the federal courts. Vicksburg & Meridian R.R. v. O'Brien, 119

U.S. 99, 7 S.Ct. 118, 30 L.Ed. 299 (1886); Ahern v. Webb, 268 F.2d

45 (10th Cir. 1959); and see N.L.R.B. v. Hudson Pulp and Paper

Corp., 273 F.2d 660, 665 (5th Cir. 1960); N.L.R.B. v. Federal Dairy

Co., 297 F.2d 487 (1st Cir. 1962). But cf. United States v. Adams,

385 F.2d 548 (2d Cir. 1967).

No attempt is made in the exception to spell out the method of

establishing the initial knowledge or the contemporaneity and

accuracy of the record, leaving them to be dealt with as the

circumstances of the particular case might indicate. Multiple

person involvement in the process of observing and recording, as in

Rathbun v. Brancatella, 93 N.J.L. 222, 107 A. 279 (1919), is

entirely consistent with the exception.

Locating the exception at this place in the scheme of the rules

is a matter of choice. There were two other possibilities. The

first was to regard the statement as one of the group of prior

statements of a testifying witness which are excluded entirely from

the category of hearsay by Rule 801(d)(1). That category, however,

requires that declarant be "subject to cross-examination," as to

which the impaired memory aspect of the exception raises doubts.

The other possibility was to include the exception among those

covered by Rule 804. Since unavailability is required by that rule

and lack of memory is listed as a species of unavailability by the

definition of the term in Rule 804(a)(3), that treatment at first

impression would seem appropriate. The fact is, however, that the

unavailability requirement of the exception is of a limited and

peculiar nature. Accordingly, the exception is located at this

point rather than in the context of a rule where unavailability is

conceived of more broadly.

Exception (6) represents an area which has received much

attention from those seeking to improve the law of evidence. The

Commonwealth Fund Act was the result of a study completed in 1927

by a distinguished committee under the chairmanship of Professor

Morgan. Morgan et al., The Law of Evidence: Some Proposals for its

Reform 63 (1927). With changes too minor to mention, it was adopted

by Congress in 1936 as the rule for federal courts. 28 U.S.C. Sec.

1732. A number of states took similar action. The Commissioners on

Uniform State Laws in 1936 promulgated the Uniform Business Records

as Evidence Act, 9A U.L.A. 506, which has acquired a substantial

following in the states. Model Code Rule 514 and Uniform Rule

63(13) also deal with the subject. Difference of varying degrees of

importance exist among these various treatments.

These reform efforts were largely within the context of business

and commercial records, as the kind usually encountered, and

concentrated considerable attention upon relaxing the requirement

of producing as witnesses, or accounting for the nonproduction of,

all participants in the process of gathering, transmitting, and

recording information which the common law had evolved as a

burdensome and crippling aspect of using records of this type. In

their areas of primary emphasis on witnesses to be called and the

general admissibility of ordinary business and commercial records,

the Commonwealth Fund Act and the Uniform Act appear to have worked

well. The exception seeks to preserve their advantages.

On the subject of what witnesses must be called, the Commonwealth

Fund Act eliminated the common law requirement of calling or

accounting for all participants by failing to mention it. United

States v. Mortimer, 118 F.2d 266 (2d Cir. 1941); La Porte v. United

States, 300 F.2d 878 (9th Cir. 1962); McCormick Sec. 290, p. 608.

Model Code Rule 514 and Uniform Rule 63(13) did likewise. The

Uniform Act, however, abolished the common law requirement in

express terms, providing that the requisite foundation testimony

might be furnished by "the custodian or other qualified witness."

Uniform Business Records as Evidence Act, Sec. 2; 9A U.L.A. 506.

The exception follows the Uniform Act in this respect.

The element of unusual reliability of business records is said

variously to be supplied by systematic checking, by regularity and

continuity which produce habits of precision, by actual experience

of business in relying upon them, or by a duty to make an accurate

record as part of a continuing job or occupation. McCormick Secs.

281, 286, 287; Laughlin, Business Entries and the Like, 46 Iowa

L.Rev. 276 (1961). The model statutes and rules have sought to

capture these factors and to extend their impact by employing the

phrase "regular course of business," in conjunction with a

definition of "business" far broader than its ordinarily accepted

meaning. The result is a tendency unduly to emphasize a requirement

of routineness and repetitiveness and an insistence that other

types of records be squeezed into the fact patterns which give rise

to traditional business records. The rule therefore adopts the

phrase "the course of a regularly conducted activity" as capturing

the essential basis of the hearsay exception as it has evolved and

the essential element which can be abstracted from the various

specifications of what is a "business."

Amplification of the kinds of activities producing admissible

records has given rise to problems which conventional business

records by their nature avoid. They are problems of the source of

the recorded information, of entries in opinion form, of

motivation, and of involvement as participant in the matters

recorded.

Sources of information presented no substantial problem with

ordinary business records. All participants, including the observer

or participant furnishing the information to be recorded, were

acting routinely, under a duty of accuracy, with employer reliance

on the result, or in short "in the regular course of business." If,

however, the supplier of the information does not act in the

regular course, an essential link is broken; the assurance of

accuracy does not extend to the information itself, and the fact

that it may be recorded with scrupulous accuracy is of no avail. An

illustration is the police report incorporating information

obtained from a bystander: the officer qualifies as acting in the

regular course but the informant does not. The leading case,

Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), held that a

report thus prepared was inadmissible. Most of the authorities have

agreed with the decision. Gencarella v. Fyfe, 171 F.2d 419 (1st

Cir. 1948); Gordon v. Robinson, 210 F.2d 192 (3d Cir. 1954);

Standard Oil Co. of California v. Moore, 251 F.2d 188, 214 (9th

Cir. 1957), cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d

1148; Yates v. Bair Transport, Inc., 249 F.Supp. 681 (S.D.N.Y.

1965); Annot., 69 A.L.R.2d 1148. Cf. Hawkins v. Gorea Motor

Express, Inc., 360 F.2d 933 (2d Cir 1966). Contra, 5 Wigmore Sec.

1530a, n. 1, pp. 391-392. The point is not dealt with specifically

in the Commonwealth Fund Act, the Uniform Act, or Uniform Rule

63(13). However, Model Code Rule 514 contains the requirement "that

it was the regular course of that business for one with personal

knowledge * * * to make such a memorandum or record or to transmit

information thereof to be included in such a memorandum or record *

* *." The rule follows this lead in requiring an informant with

knowledge acting in the course of the regularly conducted activity.

Entries in the form of opinions were not encountered in

traditional business records in view of the purely factual nature

of the items recorded, but they are now commonly encountered with

respect to medical diagnoses, prognoses, and test results, as well

as occasionally in other areas. The Commonwealth Fund Act provided

only for records of an "act, transaction, occurrence, or event,"

while the Uniform Act, Model Code Rule 514, and Uniform Rule 63(13)

merely added the ambiguous term "condition." The limited phrasing

of the Commonwealth Fund Act, 28 U.S.C. Sec. 1732, may account for

the reluctance of some federal decisions to admit diagnostic

entries. New York Life Ins. Co. v. Taylor, 79 U.S.App.D.C. 66, 147

F.2d 297 (1945); Lyles v. United States, 103 U.S.App.D.C. 22, 254

F.2d 725 (1957), cert. denied 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d

1067; England v. United States, 174 F.2d 466 (5th Cir. 1949);

Skogen v. Dow Chemical Co., 375 F.2d 692 (8th Cir. 1967). Other

federal decisions, however, experienced no difficulty in freely

admitting diagnostic entries. Reed v. Order of United Commercial

Travelers, 123 F.2d 252 (2d Cir. 1941); Buckminster's Estate v.

Commissioner of Internal Revenue, 147 F.2d 331 (2d Cir. 1944);

Medina v. Erickson, 226 F.2d 475 (9th Cir. 1955); Thomas v. Hogan,

308 F.2d 355 (4th Cir. 1962); Glawe v. Rulon, 284 F.2d 495 (8th

Cir. 1960). In the state courts, the trend favors admissibility.

Borucki v. MacKenzie Bros. Co., 125 Conn. 92, 3 A.2d 224 (1938);

Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663,

55 A.L.R.2d 1022 (1956); People v. Kohlmeyer, 284 N.Y. 366, 31

N.E.2d 490 (1940); Weis v. Weis, 147 Ohio St. 416, 72 N.E.2d 245

(1947). In order to make clear its adherence to the latter

position, the rule specifically includes both diagnoses and

opinions, in addition to acts, events, and conditions, as proper

subjects of admissible entries.

Problems of the motivation of the informant have been a source of

difficulty and disagreement. In Palmer v. Hoffman, 318 U.S. 109, 63

S.Ct. 477, 87 L.Ed. 645 (1943), exclusion of an accident report

made by the since deceased engineer, offered by defendant railroad

trustees in a grade crossing collision case, was upheld. The report

was not "in the regular course of business," not a record of the

systematic conduct of the business as a business, said the Court.

The report was prepared for use in litigating, not railroading.

While the opinion mentions the motivation of the engineer only

obliquely, the emphasis on records of routine operations is

significant only by virtue of impact on motivation to be accurate.

Absence of routineness raises lack of motivation to be accurate.

The opinion of the Court of Appeals had gone beyond mere lack of

motive to be accurate: the engineer's statement was "dripping with

motivations to misrepresent." Hoffman v. Palmer, 129 F.2d 976, 991

(2d Cir. 1942). The direct introduction of motivation is a

disturbing factor, since absence of motivation to misrepresent has

not traditionally been a requirement of the rule; that records

might be self-serving has not been a ground for exclusion.

Laughlin, Business Records and the Like, 46 Iowa L.Rev. 276, 285

(1961). As Judge Clark said in his dissent, "I submit that there is

hardly a grocer's account book which could not be excluded on that

basis." 129 F.2d at 1002. A physician's evaluation report of a

personal injury litigant would appear to be in the routine of his

business. If the report is offered by the party at whose instance

it was made, however, it has been held inadmissible, Yates v. Bair

Transport, Inc., 249 F.Supp. 681 (S.D.N.Y. 1965), otherwise if

offered by the opposite party, Korte v. New York, N.H. & H.R. Co.,

191 F.2d 86 (2d Cir. 1951), cert. denied 342 U.S. 868, 72 S.Ct.

108, 96 L.Ed. 652.

The decisions hinge on motivation and which party is entitled to

be concerned about it. Professor McCormick believed that the

doctor's report or the accident report were sufficiently routine to

justify admissibility. McCormick Sec. 287, p. 604. Yet hesitation

must be experienced in admitting everything which is observed and

recorded in the course of a regularly conducted activity. Efforts

to set a limit are illustrated by Hartzog v. United States, 217

F.2d 706 (4th Cir. 1954), error to admit worksheets made by since

deceased deputy collector in preparation for the instant income tax

evasion prosecution, and United States v. Ware, 247 F.2d 698 (7th

Cir. 1957), error to admit narcotics agents' records of purchases.

See also Exception [paragraph] (8), infra, as to the public record

aspects of records of this nature. Some decisions have been

satisfied as to motivation of an accident report if made pursuant

to statutory duty, United States v. New York Foreign Trade Zone

Operators, 304 F.2d 792 (2d Cir. 1962); Taylor v. Baltimore & O. R.

Co., 344 F.2d 281 (2d Cir. 1965), since the report was oriented in

a direction other than the litigation which ensued. Cf. Matthews v.

United States, 217 F.2d 409 (5th Cir. 1954). The formulation of

specific terms which would assure satisfactory results in all cases

is not possible. Consequently the rule proceeds from the base that

records made in the course of a regularly conducted activity will

be taken as admissible but subject to authority to exclude if "the

sources of information or other circumstances indicate lack of

trustworthiness."

Occasional decisions have reached for enhanced accuracy by

requiring involvement as a participant in matters reported. Clainos

v. United States, 82 U.S.App.D.C. 278, 163 F.2d 593 (1947), error

to admit police records of convictions; Standard Oil Co. of

California v. Moore, 251 F.2d 188 (9th Cir. 1957), cert. denied 356

U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148, error to admit employees'

records of observed business practices of others. The rule includes

no requirement of this nature. Wholly acceptable records may

involve matters merely observed, e.g. the weather.

The form which the "record" may assume under the rule is

described broadly as a "memorandum, report, record, or data

compilation, in any form." The expression "data compilation" is

used as broadly descriptive of any means of storing information

other than the conventional words and figures in written or

documentary form. It includes, but is by no means limited to,

electronic computer storage. The term is borrowed from revised Rule

34(a) of the Rules of Civil Procedure.

Exception (7). Failure of a record to mention a matter which

would ordinarily be mentioned is satisfactory evidence of its

nonexistence. Uniform Rule 63(14), Comment. While probably not

hearsay as defined in Rule 801, supra, decisions may be found which

class the evidence not only as hearsay but also as not within any

exception. In order to set the question at rest in favor of

admissibility, it is specifically treated here. McCormick Sec. 289,

p. 609; Morgan, Basic Problems of Evidence 314 (1962); 5 Wigmore

Sec. 1531; Uniform Rule 63(14); California Evidence Code Sec. 1272;

Kansas Code of Civil Procedure Sec. 60-460(n); New Jersey Evidence

Rule 63(14).

Exception (8). Public records are a recognized hearsay exception

at common law and have been the subject of statutes without number.

McCormick Sec. 291. See, for example, 28 U.S.C. Sec. 1733, the

relative narrowness of which is illustrated by its nonapplicability

to nonfederal public agencies, thus necessitating report to the

less appropriate business record exception to the hearsay rule. Kay

v. United States, 255 F.2d 476 (4th Cir. 1958). The rule makes no

distinction between federal and nonfederal offices and agencies.

Justification for the exception is the assumption that a public

official will perform his duty properly and the unlikelihood that

he will remember details independently of the record. Wong Wing Foo

v. McGrath, 196 F.2d 120 (9th Cir. 1952), and see Chesapeake &

Delaware Canal Co. v. United States, 250 U.S. 123, 39 S.Ct. 407, 63

L.Ed. 889 (1919). As to items (a) and (b), further support is found

in the reliability factors underlying records of regularly

conducted activities generally. See Exception [paragraph] (6),

supra.

(a) Cases illustrating the admissibility of records of the

office's or agency's own activities are numerous. Chesapeake &

Delaware Canal Co. v. United States, 250 U.S. 123, 39 S.Ct. 407, 63

L.Ed. 889 (1919), Treasury records of miscellaneous receipts and

disbursements; Howard v. Perrin, 200 U.S. 71, 26 S.Ct. 195, 50

I.Ed. 374 (1906), General Land Office records; Ballew v. United

States, 160 U.S. 187, 16 S.Ct. 263, 40 L.Ed. 388 (1895), Pension

Office records.

(b) Cases sustaining admissibility of records of matters observed

are also numerous. United States v. Van Hook, 284 F.2d 489 (7th

Cir. 1960), remanded for resentencing 365 U.S. 609, 81 S.Ct. 823, 5

L.Ed.2d 821, letter from induction officer to District Attorney,

pursuant to army regulations, stating fact and circumstances of

refusal to be inducted; T'Kach v. United States, 242 F.2d 937 (5th

Cir. 1957), affidavit of White House personnel officer that search

of records showed no employment of accused, charged with

fraudulently representing himself as an envoy of the President;

Minnehaha County v. Kelley, 150 F.2d 356 (8th Cir. 1945); Weather

Bureau records of rainfall; United States v. Meyer, 113 F.2d 387

(7th Cir. 1940), cert. denied 311 U.S. 706, 61 S.Ct. 174, 85 L.Ed.

459, map prepared by government engineer from information furnished

by men working under his supervision.

(c) The more controversial area of public records is that of the

so-called "evaluative" report. The disagreement among the decisions

has been due in part, no doubt, to the variety of situations

encountered, as well as to differences in principle. Sustaining

admissibility are such cases as United States v. Dumas, 149 U.S.

278, 13 S.Ct. 872, 37 L.Ed. 734 (1893), statement of account

certified by Postmaster General in action against postmaster;

McCarty v. United States, 185 F.2d 520 (5th Cir. 1950), reh. denied

187 F.2d 234, Certificate of Settlement of General Accounting

Office showing indebtedness and letter from Army official stating

Government had performed, in action on contract to purchase and

remove waste food from Army camp; Moran v. Pittsburgh-Des Moines

Steel Co., 183 F.2d 467 (3d Cir. 1950), report of Bureau of Mines

as to cause of gas tank explosion; Petition of W - , 164 F.Supp.

659 (E.D.Pa.1958), report by Immigration and Naturalization Service

investigator that petitioner was known in community as wife of man

to whom she was not married. To the opposite effect and denying

admissibility are Franklin v. Skelly Oil Co., 141 F.2d 568 (10th

Cir. 1944), State Fire Marshal's report of cause of gas explosion;

Lomax Transp. Co. v. United States, 183 F.2d 331 (9th Cir. 1950),

Certificate of Settlement from General Accounting Office in action

for naval supplies lost in warehouse fire; Yung Jin Teung v.

Dulles, 229 F.2d 244 (2d Cir. 1956), "Status Reports" offered to

justify delay in processing passport applications. Police reports

have generally been excluded except to the extent to which they

incorporate firsthand observations of the officer. Annot., 69

A.L.R.2d 1148. Various kinds of evaluative reports are admissible

under federal statutes: 7 U.S.C. Sec. 78, findings of Secretary of

Agriculture prima facie evidence of true grade of grain; 7 U.S.C.

Sec. 210(f), findings of Secretary of Agriculture prima facie

evidence in action for damages against stockyard owner; 7 U.S.C.

Sec. 292, order by Secretary of Agriculture prima facie evidence in

judicial enforcement proceedings against producers association

monopoly; 7 U.S.C. Sec. 1622(h), Department of Agriculture

inspection certificates of products shipped in interstate commerce

prima facie evidence; 8 U.S.C. Sec. 1440(c), separation of alien

from military service on conditions other than honorable provable

by certificate from department in proceedings to revoke

citizenship; 18 U.S.C. Sec. 4245, certificate of Director of

Prisons that convicted person has been examined and found probably

incompetent at time of trial prima facie evidence in court hearing

on competency; 42 U.S.C. Sec. 269(b), bill of health by appropriate

official prima facie evidence of vessel's sanitary history and

condition and compliance with regulations; 46 U.S.C. Sec. 679,

certificate of consul presumptive evidence of refusal of master to

transport destitute seamen to United States. While these statutory

exceptions to the hearsay rule are left undisturbed, Rule 802, the

willingness of Congress to recognize a substantial measure of

admissibility for evaluative reports is a helpful guide.

Factors which may be of assistance in passing upon the

admissibility of evaluative reports include; (1) the timeliness of

the investigation, McCormack, Can the Courts Make Wider Use of

Reports of Official Investigations? 42 Iowa L.Rev. 363 (1957); (2)

the special skill or experience of the official, id., (3) whether a

hearing was held and the level at which conducted, Franklin v.

Skelly Oil Co., 141 F.2d 568 (10th Cir. 1944); (4) possible

motivation problems suggested by Palmer v. Hoffman, 318 U.S. 109,

63 S.Ct. 477, 87 L.Ed. 645 (1943). Others no doubt could be added.

The formulation of an approach which would give appropriate

weight to all possible factors in every situation is an obvious

impossibility. Hence the rule, as in Exception [paragraph] (6),

assumes admissibility in the first instance but with ample

provision for escape if sufficient negative factors are present. In

one respect, however, the rule with respect to evaluate reports

under item (c) is very specific; they are admissible only in civil

cases and against the government in criminal cases in view of the

almost certain collision with confrontation rights which would

result from their use against the accused in a criminal case.

Exception (9). Records of vital statistics are commonly the

subject of particular statutes making them admissible in evidence.

Uniform Vital Statistics Act, 9C U.L.A. 350 (1957). The rule is in

principle narrower than Uniform Rule 63(16) which includes reports

required of persons performing functions authorized by statute, yet

in practical effect the two are substantially the same. Comment

Uniform Rule 63(16). The exception as drafted is in the pattern of

California Evidence Code Sec. 1281.

Exception (10). The principle of proving nonoccurrence of an

event by evidence of the absence of a record which would regularly

be made of its occurrence, developed in Exception [paragraph] (7)

with respect to regularly conducted activities, is here extended to

public records of the kind mentioned in Exceptions [paragraphs] (8)

and (9). 5 Wigmore Sec. 1633(6), p. 519. Some harmless duplication

no doubt exists with Exception [paragraph] (7). For instances of

federal statutes recognizing this method of proof, see 8 U.S.C.

Sec. 1284(b), proof of absence of alien crewman's name from

outgoing manifest prima facie evidence of failure to detain or

deport, and 42 U.S.C. Sec. 405(c)(3), (4)(B), (4)(C), absence of

HEW [Department of Health, Education, and Welfare] record prima

facie evidence of no wages or self-employment income.

The rule includes situations in which absence of a record may

itself be the ultimate focal point of inquiry, e.g. People v. Love,

310 Ill. 558, 142 N.E. 204 (1923), certificate of Secretary of

State admitted to show failure to file documents required by

Securities Law, as well as cases where the absence of a record is

offered as proof of the nonoccurrence of an event ordinarily

recorded.

The refusal of the common law to allow proof by certificate of

the lack of a record or entry has no apparent justification, 5

Wigmore Sec. 1678(7), p. 752. The rule takes the opposite position,

as do Uniform Rule 63(17); California Evidence Code Sec. 1284;

Kansas Code of Civil Procedure Sec. 60-460(c); New Jersey Evidence

Rule 63(17). Congress has recognized certification as evidence of

the lack of a record. 8 U.S.C. Sec. 1360(d), certificate of

Attorney General or other designated officer that no record of

Immigration and Naturalization Service of specified nature or entry

therein is found, admissible in alien cases.

Exception (11). Records of activities of religious organizations

are currently recognized as admissible at least to the extent of

the business records exception to the hearsay rule, 5 Wigmore Sec.

1523, p. 371, and Exception [paragraph] (6) would be applicable.

However, both the business record doctrine and Exception

[paragraph] (6) require that the person furnishing the information

be one in the business or activity. The result is such decisions as

Daily v. Grand Lodge, 311 Ill. 184, 142 N.E. 478 (1924), holding a

church record admissible to prove fact, date, and place of baptism,

but not age of child except that he had at least been born at the

time. In view of the unlikelihood that false information would be

furnished on occasions of this kind, the rule contains no

requirement that the informant be in the course of the activity.

See California Evidence Code Sec. 1315 and Comment.

Exception (12). The principle of proof by certification is

recognized as to public officials in Exceptions [paragraphs] (8)

and (10), and with respect to authentication in Rule 902. The

present exception is a duplication to the extent that it deals with

a certificate by a public official, as in the case of a judge who

performs a marriage ceremony. The area covered by the rule is,

however, substantially larger and extends the certification

procedure to clergymen and the like who perform marriages and other

ceremonies or administer sacraments. Thus certificates of such

matters as baptism or confirmation, as well as marriage, are

included. In principle they are as acceptable evidence as

certificates of public officers. See 5 Wigmore Sec. 1645, as to

marriage certificates. When the person executing the certificate is

not a public official, the self-authenticating character of

documents purporting to emanate from public officials, see Rule

902, is lacking and proof is required that the person was

authorized and did make the certificate. The time element, however,

may safely be taken as supplied by the certificate, once authority

and authenticity are established, particularly in view of the

presumption that a document was executed on the date it bears.

For similar rules, some limited to certificates of marriage, with

variations in foundation requirements, see Uniform Rule 63(18);

California Evidence Code Sec. 1316; Kansas Code of Civil Procedure

Sec. 60-460(p); New Jersey Evidence Rule 63(18).

Exception (13). Records of family history kept in family Bibles

have by long tradition been received in evidence. 5 Wigmore Secs.

1495, 1496, citing numerous statutes and decisions. See also

Regulations, Social Security Administration, 20 C.F.R. Sec.

404.703(c), recognizing family Bible entries as proof of age in the

absence of public or church records. Opinions in the area also

include inscriptions on tombstones, publicly displayed pedigrees,

and engravings on rings. Wigmore, supra. The rule is substantially

identical in coverage with California Evidence Code Sec. 1312.

Exception (14). The recording of title documents is a purely

statutory development. Under any theory of the admissibility of

public records, the records would be receivable as evidence of the

contents of the recorded document, else the recording process would

be reduced to a nullity. When, however, the record is offered for

the further purpose of proving execution and delivery, a problem of

lack of first-hand knowledge by the recorder, not present as to

contents, is presented. This problem is solved, seemingly in all

jurisdictions, by qualifying for recording only those documents

shown by a specified procedure, either acknowledgement or a form of

probate, to have been executed and delivered. 5 Wigmore Secs.

1647-1651. Thus what may appear in the rule, at first glance, as

endowing the record with an effect independently of local law and

inviting difficulties of an Erie nature under Cities Service Oil

Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201, 84 L.Ed. 196 (1939), is

not present, since the local law in fact governs under the example.

Exception (15). Dispositive documents often contain recitals of

fact. Thus a deed purporting to have been executed by an attorney

in fact may recite the existence of the power of attorney, or a

deed may recite that the grantors are all the heirs of the last

record owner. Under the rule, these recitals are exempted from the

hearsay rule. The circumstances under which dispositive documents

are executed and the requirement that the recital be germane to the

purpose of the document are believed to be adequate guarantees of

trustworthiness, particularly in view of the nonapplicability of

the rule if dealings with the property have been inconsistent with

the document. The age of the document is of no significance, though

in practical application the document will most often be an ancient

one. See Uniform Rule 63(29), Comment.

Similar provisions are contained in Uniform Rule 63(29);

California Evidence Code Sec. 1330; Kansas Code of Civil Procedure

Sec. 60-460(aa); New Jersey Evidence Rule 63(29).

Exception (16). Authenticating a document as ancient, essentially

in the pattern of the common law, as provided in Rule 901(b)(8),

leaves open as a separate question the admissibility of assertive

statements contained therein as against a hearsay objection. 7

Wigmore Sec. 2145a. Wigmore further states that the ancient

document technique of authentication is universally conceded to

apply to all sorts of documents, including letters, records,

contracts, maps, and certificates, in addition to title documents,

citing numerous decisions. Id. Sec. 2145. Since most of these items

are significant evidentially only insofar as they are assertive,

their admission in evidence must be as a hearsay exception. But see

5 id. Sec. 1573, p. 429, referring to recitals in ancient deeds as

a "limited" hearsay exception. The former position is believed to

be the correct one in reason and authority. As pointed out in

McCormick Sec. 298, danger of mistake is minimized by

authentication requirements, and age affords assurance that the

writing antedates the present controversy. See Dallas County v.

Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961),

upholding admissibility of 58-year-old newspaper story. Cf. Morgan,

Basic Problems of Evidence 364 (1962), but see id. 254.

For a similar provision, but with the added requirement that "the

statement has since generally been acted upon as true by persons

having an interest in the matter," see California Evidence Code

Sec. 1331.

Exception (17). Ample authority at common law supported the

admission in evidence of items falling in this category. While

Wigmore's text is narrowly oriented to lists, etc., prepared for

the use of a trade or profession, 6 Wigmore Sec. 1702, authorities

are cited which include other kinds of publications, for example,

newspaper market reports, telephone directories, and city

directories. Id. Secs. 1702-1706. The basis of trustworthiness is

general reliance by the public or by a particular segment of it,

and the motivation of the compiler to foster reliance by being

accurate.

For similar provisions, see Uniform Rule 63(30); California

Evidence Code Sec. 1340; Kansas Code of Civil Procedure Sec.

60-460(bb); New Jersey Evidence Rule 63(30). Uniform Commercial

Code Sec. 2-724 provides for admissibility in evidence of "reports

in official publications or trade journals or in newspapers or

periodicals of general circulation published as the reports of such

[established commodity] market."

Exception (18). The writers have generally favored the

admissibility of learned treatises, McCormick Sec. 296, p. 621;

Morgan, Basic Problems of Evidence 366 (1962); 6 Wigmore Sec. 1692,

with the support of occasional decisions and rules, City of Dothan

v. Hardy, 237 Ala. 603, 188 So. 264 (1939); Lewandowski v.

Preferred Risk Mut. Ins. Co., 33 Wis.2d 69, 146 N.W.2d 505 (1966),

66 Mich.L.Rev. 183 (1967); Uniform Rule 63(31); Kansas Code of

Civil Procedure Sec. 60-460(ce), but the great weight of authority

has been that learned treatises are not admissible as substantive

evidence though usable in the cross-examination of experts. The

foundation of the minority view is that the hearsay objection must

be regarded as unimpressive when directed against treatises since a

high standard of accuracy is engendered by various factors: the

treatise is written primarily and impartially for professionals,

subject to scrutiny and exposure for inaccuracy, with the

reputation of the writer at stake. 6 Wigmore Sec. 1692. Sound as

this position may be with respect to trustworthiness, there is,

nevertheless, an additional difficulty in the likelihood that the

treatise will be misunderstood and misapplied without expert

assistance and supervision. This difficulty is recognized in the

cases demonstrating unwillingness to sustain findings relative to

disability on the basis of judicially noticed medical texts. Ross

v. Gardner, 365 F.2d 554 (6th Cir. 1966); Sayers v. Gardner, 380

F.2d 940 (6th Cir. 1967); Colwell v. Gardner, 386 F.2d 56 (6th Cir.

1967); Glendenning v. Ribicoff, 213 F.Supp. 301 (W.D.Mo. 1962);

Cook v. Celebrezze, 217 F.Supp. 366 (W.D.Mo. 1963); Sosna v.

Celebrezze, 234 F.Supp. 289 (E.D.Pa. 1964); and see McDaniel v.

Celebrezze, 331 F.2d 426 (4th Cir. 1964). The rule avoids the

danger of misunderstanding and misapplication by limiting the use

of treatises as substantive evidence to situations in which an

expert is on the stand and available to explain and assist in the

application of the treatise if declared. The limitation upon

receiving the publication itself physically in evidence, contained

in the last sentence, is designed to further this policy.

The relevance of the use of treatises on cross-examination is

evident. This use of treatises has been the subject of varied

views. The most restrictive position is that the witness must have

stated expressly on direct his reliance upon the treatise. A

slightly more liberal approach still insists upon reliance but

allows it to be developed on cross-examination. Further relaxation

dispenses with reliance but requires recognition as an authority by

the witness, developable on cross-examination. The greatest

liberality is found in decisions allowing use of the treatise on

cross-examination when its status as an authority is established by

any means. Annot., 60 A.L.R.2d 77. The exception is hinged upon

this last position, which is that of the Supreme Court, Reilly v.

Pinkus, 338 U.S. 269, 70 S.Ct. 110, 94 L.Ed. 63 (1949), and of

recent well considered state court decisions, City of St.

Petersburg v. Ferguson, 193 So.2d 648 (Fla.App. 1967), cert. denied

Fla., 201 So.2d 556; Darling v. Charleston Memorial Community

Hospital, 33 Ill.2d 326, 211 N.E.2d 253 (1965); Dabroe v. Rhodes

Co., 64 Wash.2d 431, 392 P.2d 317 (1964).

In Reilly v. Pinkus, supra, the Court pointed out that testing of

professional knowledge was incomplete without exploration of the

witness' knowledge of and attitude toward established treatises in

the field. The process works equally well in reverse and furnishes

the basis of the rule.

The rule does not require that the witness rely upon or recognize

the treatise as authoritative, thus avoiding the possibility that

the expert may at the outset block cross-examination by refusing to

concede reliance or authoritativeness. Dabroe v. Rhodes Co., supra.

Moreover, the rule avoids the unreality of admitting evidence for

the purpose of impeachment only, with an instruction to the jury

not to consider it otherwise. The parallel to the treatment of

prior inconsistent statements will be apparent. See Rules 6130(b)

and 801(d)(1).

Exceptions (19), (20), and (21). Trustworthiness in reputation

evidence is found "when the topic is such that the facts are likely

to have been inquired about and that persons having personal

knowledge have disclosed facts which have thus been discussed in

the community; and thus the community's conclusion, if any has been

formed, is likely to be a trustworthy one." 5 Wigmore Sec. 1580, p.

444, and see also Sec. 1583. On this common foundation, reputation

as to land boundaries, customs, general history, character, and

marriage have come to be regarded as admissible. The breadth of the

underlying principle suggests the formulation of an equally broad

exception, but tradition has in fact been much narrower and more

particularized, and this is the pattern of these exceptions in the

rule.

Exception [paragraph] (19) is concerned with matters of personal

and family history. Marriage is universally conceded to be a proper

subject of proof by evidence of reputation in the community. 5

Wigmore Sec. 1602. As to such items as legitimacy, relationship,

adoption, birth, and death, the decisions are divided. Id. Sec.

1605. All seem to be susceptible to being the subject of well

founded repute. The "world" in which the reputation may exist may

be family, associates, or community. This world has proved capable

of expanding with changing times from the single uncomplicated

neighborhood, in which all activities take place, to the multiple

and unrelated worlds of work, religious affiliation, and social

activity, in each of which a reputation may be generated. People v.

Reeves, 360 Ill. 55, 195 N.E. 443 (1935); State v. Axilrod, 248

Minn. 204, 79 N.W.2d 677 (1956); Mass.Stat. 1947, c. 410, M.G.L.A.

c. 233 Sec. 21A; 5 Wigmore Sec. 1616. The family has often served

as the point of beginning for allowing community reputation. 5

Wigmore Sec. 1488. For comparable provisions see Uniform Rule

63(26), (27)(c); California Evidence Code Secs. 1313, 1314; Kansas

Code of Civil Procedure Sec. 60-460(x), (y)(3); New Jersey Evidence

Rule 63(26), (27)(c).

The first portion of Exception [paragraph] (20) is based upon the

general admissibility of evidence of reputation as to land

boundaries and land customs, expanded in this country to include

private as well as public boundaries. McCormick Sec. 299, p. 625.

The reputation is required to antedate the controversy, though not

to be ancient. The second portion is likewise supported by

authority, id., and is designed to facilitate proof of events when

judicial notice is not available The historical character of the

subject matter dispenses with any need that the reputation antedate

the controversy with respect to which it is offered. For similar

provisions see Uniform Rule 63(27)(a), (b); California Evidence

Code Secs. 1320-1322; Kansas Code of Civil Procedure Sec.

60-460(y), (1), (2); New Jersey Evidence Rule 63(27)(a), (b).

Exception [paragraph] (21) recognizes the traditional acceptance

of reputation evidence as a means of proving human character.

McCormick Secs. 44, 158. The exception deals only with the hearsay

aspect of this kind of evidence. Limitations upon admissibility

based on other grounds will be found in Rules 404, relevancy of

character evidence generally, and 608, character of witness. The

exception is in effect a reiteration, in the context of hearsay, of

Rule 405(a). Similar provisions are contained in Uniform Rule

63(28); California Evidence Code Sec. 1324; Kansas Code of Civil

Procedure Sec. 60-460(z); New Jersey Evidence Rule 63(28).

Exception (22). When the status of a former judgment is under

consideration in subsequent litigation, three possibilities must be

noted: (1) the former judgment is conclusive under the doctrine of

res judicata, either as a bar or a collateral estoppel; or (2) it

is admissible in evidence for what it is worth; or (3) it may be of

no effect at all. The first situation does not involve any problem

of evidence except in the way that principles of substantive law

generally bear upon the relevancy and materiality of evidence. The

rule does not deal with the substantive effect of the judgment as a

bar or collateral estoppel. When, however, the doctrine of res

judicata does not apply to make the judgment either a bar or a

collateral estoppel, a choice is presented between the second and

third alternatives. The rule adopts the second for judgments of

criminal conviction of felony grade. This is the direction of the

decisions, Annot., 18 A.L.R.2d 1287, 1299, which manifest an

increasing reluctance to reject in toto the validity of the law's

factfinding processes outside the confines of res judicata and

collateral estoppel. While this may leave a jury with the evidence

of conviction but without means to evaluate it, as suggested by

Judge Hinton, Note 27 Ill.L.Rev. 195 (1932), it seems safe to

assume that the jury will give it substantial effect unless

defendant offers a satisfactory explanation, a possibility not

foreclosed by the provision. But see North River Ins. Co. v.

Militello, 104 Colo. 28, 88 P.2d 567 (1939), in which the jury

found for plaintiff on a fire policy despite the introduction of

his conviction for arson. For supporting federal decisions see

Clark, J., in New York & Cuba Mail S.S. Co. v. Continental Cas.

Co., 117 F.2d 404, 411 (2d Cir. 1941); Connecticut Fire Ins. Co. v.

Farrara, 277 F.2d 388 (8th Cir. 1960).

Practical considerations require exclusion of convictions of

minor offenses, not became the administration of justice in its

lower echelons must be inferior, but because motivation to defend

at this level is often minimal or nonexistent. Cope v. Goble, 39

Cal.App.2d 448, 103 P.2d 598 (1940); Jones v. Talbot, 87 Idaho 498,

394 P.2d 316 (1964); Warren v. Marsh, 215 Minn. 615, 11 N.W.2d 528

(1943); Annot., 18 A.L.R.2d 1287, 1295-1297; 16 Brooklyn L.Rev. 286

(1950); 50 Colum.L.Rev. 529 (1950); 35 Cornell L.Q. 872 (1950).

Hence the rule includes only convictions of felony grade, measured

by federal standards.

Judgments of conviction based upon pleas of nolo contendere are

not included. This position is consistent with the treatment of

nolo pleas in Rule 410 and the authorities cited in the Advisory

Committee's Note in support thereof.

While these rules do not in general purport to resolve

constitutional issues, they have in general been drafted with a

view to avoiding collision with constitutional principles.

Consequently the exception does not include evidence of the

conviction of a third person, offered against the accused in a

criminal prosecution to prove any fact essential to sustain the

judgment of conviction. A contrary position would seem clearly to

violate the right of confrontation. Kirby v. United States, 174

U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899), error to convict of

possessing stolen postage stamps with the only evidence of theft

being the record of conviction of the thieves The situation is to

be distinguished from cases in which conviction of another person

is an element of the crime, e.g. 15 U.S.C. Sec. 902(d), interstate

shipment of firearms to a known convicted felon, and, as

specifically provided, from impeachment.

For comparable provisions see Uniform Rule 63(20); California

Evidence Code Sec. 1300; Kansas Code of Civil Procedure Sec.

60-460(r); New Jersey Evidence Rule 63(20).

Exception (23). A hearsay exception in this area was originally

justified on the ground that verdicts were evidence of reputation.

As trial by jury graduated from the category of neighborhood

inquests, this theory lost its validity. It was never valid as to

chancery decrees. Nevertheless the rule persisted, though the

judges and writers shifted ground and began saying that the

judgment or decree was as good evidence as reputation. See City of

London v. Clerke, Carth. 181, 90 Eng.Rep. 710 (K.B. 1691); Neill v.

Duke of Devonshire, 8 App.Cas. 135 (1882). The shift appears to be

correct, since the process of inquiry, sifting, and scrutiny which

is relied upon to render reputation reliable is present in perhaps

greater measure in the process of litigation. While this might

suggest a broader area of application, the affinity to reputation

is strong, and paragraph [paragraph] (23) goes no further, not even

including character.

The leading case in the United States, Patterson v. Gaines, 47

U.S. (6 How.) 550, 599, 12 L.Ed. 553 (1847), follows in the pattern

of the English decisions, mentioning as illustrative matters thus

provable: manorial rights, public rights of way, immemorial custom,

disputed boundary, and pedigree. More recent recognition of the

principle is found in Grant Bros. Construction Co. v. United

States, 232 U.S. 647, 34 S.Ct. 452, 58 L.Ed. 776 (1914), in action

for penalties under Alien Contract Labor Law, decision of board of

inquiry of Immigration Service admissible to prove alienage of

laborers, as a matter of pedigree; United States v. Mid-Continent

Petroleum Corp., 67 F.2d 37 (10th Cir. 1933), records of commission

enrolling Indians admissible on pedigree; Jung Yen Loy v. Cahill,

81 F.2d 809 (9th Cir. 1936), board decisions as to citizenship of

plaintiff's father admissible in proceeding for declaration of

citizenship. Contra, In re Estate of Cunha, 49 Haw. 273, 414 P.2d

925 (1966).

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

Rule 803(3) was approved in the form submitted by the Court to

Congress. However, the Committee intends that the Rule be construed

to limit the doctrine of Mutual Life Insurance Co. v. Hillmon, 145

U.S. 285, 295-300 (1892), so as to render statements of intent by a

declarant admissible only to prove his future conduct, not the

future conduct of another person.

After giving particular attention to the question of physical

examination made solely to enable a physician to testify, the

Committee approved Rule 803(4) as submitted to Congress, with the

understanding that it is not intended in any way to adversely

affect present privilege rules or those subsequently adopted.

Rule 803(5) as submitted by the Court permitted the reading into

evidence of a memorandum or record concerning a matter about which

a witness once had knowledge but now has insufficient recollection

to enable him to testify accurately and fully, "shown to have been

made when the matter was fresh in his memory and to reflect that

knowledge correctly." The Committee amended this Rule to add the

words "or adopted by the witness" after the phrase "shown to have

been made", a treatment consistent with the definition of

"statement" in the Jencks Act, 18 U.S.C. 3500. Moreover, it is the

Committee's understanding that a memorandum or report, although

barred under this Rule, would nonetheless be admissible if it came

within another hearsay exception. This last stated principle is

deemed applicable to all the hearsay rules.

Rule 803(6) as submitted by the Court permitted a record made "in

the course of a regularly conducted activity" to be admissible in

certain circumstances. The Committee believed there were

insufficient guarantees of reliability in records made in the

course of activities falling outside the scope of "business"

activities as that term is broadly defined in 28 U.S.C. 1732.

Moreover, the Committee concluded that the additional requirement

of Section 1732 that it must have been the regular practice of a

business to make the record is a necessary further assurance of its

trustworthiness. The Committee accordingly amended the Rule to

incorporate these limitations.

Rule 803(7) as submitted by the Court concerned the absence of

entry in the records of a "regularly conducted activity." The

Committee amended this Rule to conform with its action with respect

to Rule 803(6).

The Committee approved Rule 803(8) without substantive change

from the form in which it was submitted by the Court. The Committee

intends that the phrase "factual findings" be strictly construed

and that evaluations or opinions contained in public reports shall

not be admissible under this Rule.

The Committee approved this Rule in the form submitted by the

Court, intending that the phrase "Statements of fact concerning

personal or family history" be read to include the specific types

of such statements enumerated in Rule 803(11).

NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277

The House approved this rule as it was submitted by the Supreme

Court "with the understanding that it is not intended in any way to

adversely affect present privilege rules." We also approve this

rule, and we would point out with respect to the question of its

relation to privileges, it must be read in conjunction with rule 35

of the Federal Rules of Civil Procedure which provides that

whenever the physical or mental condition of a party (plaintiff or

defendant) is in controversy, the court may require him to submit

to an examination by a physician. It is these examinations which

will normally be admitted under this exception.

Rule 803(5) as submitted by the Court permitted the reading into

evidence of a memorandum or record concerning a matter about which

a witness once had knowledge but now has insufficient recollection

to enable him to testify accurately and fully, "shown to have been

made when the matter was fresh in his memory and to reflect that

knowledge correctly." The House amended the rule to add the words

"or adopted by the witness" after the phrase "shown to have been

made," language parallel to the Jencks Act [18 U.S.C. Sec. 3500].

The committee accepts the House amendment with the understanding

and belief that it was not intended to narrow the scope of

applicability of the rule. In fact, we understand it to clarify the

rule's applicability to a memorandum adopted by the witness as well

as one made by him. While the rule as submitted by the Court was

silent on the question of who made the memorandum, we view the

House amendment as a helpful clarification, noting, however, that

the Advisory Committee's note to this rule suggests that the

important thing is the accuracy of the memorandum rather than who

made it.

The committee does not view the House amendment as precluding

admissibility in situations in which multiple participants were

involved.

When the verifying witness has not prepared the report, but

merely examined it and found it accurate, he has adopted the

report, and it is therefore admissible. The rule should also be

interpreted to cover other situations involving multiple

participants, e.g., employer dictating to secretary, secretary

making memorandum at direction of employer, or information being

passed along a chain of persons, as in Curtis v. Bradley [65 Conn.

99, 31 Atl. 591 (1894); see, also Rathbun v. Brancatella, 93 N.J.L.

222, 107 Atl. 279 (1919); see, also McCormick on Evidence, Sec. 303

(2d ed. 1972)].

The committee also accepts the understanding of the House that a

memorandum or report, although barred under rule, would nonetheless

be admissible if it came within another hearsay exception. We

consider this principle to be applicable to all the hearsay rules.

Rule 803(6) as submitted by the Supreme Court permitted a record

made in the course of a regularly conducted activity to be

admissible in certain circumstances. This rule constituted a

broadening of the traditional business records hearsay exception

which has been long advocated by scholars and judges active in the

law of evidence

The House felt there were insufficient guarantees of reliability

of records not within a broadly defined business records exception.

We disagree. Even under the House definition of "business"

including profession, occupation, and "calling of every kind," the

records of many regularly conducted activities will, or may be,

excluded from evidence. Under the principle of ejusdem generis, the

intent of "calling of every kind" would seem to be related to

work-related endeavors - e.g., butcher, baker, artist, etc.

Thus, it appears that the records of many institutions or groups

might not be admissible under the House amendments. For example,

schools, churches, and hospitals will not normally be considered

businesses within the definition. Yet, these are groups which keep

financial and other records on a regular basis in a manner similar

to business enterprises. We believe these records are of equivalent

trustworthiness and should be admitted into evidence.

Three states, which have recently codified their evidence rules,

have adopted the Supreme Court version of rule 803(6), providing

for admission of memoranda of a "regularly conducted activity."

None adopted the words "business activity" used in the House

amendment. [See Nev. Rev. Stats. Sec. 15.135; N. Mex. Stats. (1973

Supp.) Sec. 20-4-803(6); West's Wis. Stats. Anno. (1973 Supp.) Sec.

908.03(6).]

Therefore, the committee deleted the word "business" as it

appears before the word "activity". The last sentence then is

unnecessary and was also deleted.

It is the understanding of the committee that the use of the

phrase "person with knowledge" is not intended to imply that the

party seeking to introduce the memorandum, report, record, or data

compilation must be able to produce, or even identify, the specific

individual upon whose first-hand knowledge the memorandum, report,

record or data compilation was based. A sufficient foundation for

the introduction of such evidence will be laid if the party seeking

to introduce the evidence is able to show that it was the regular

practice of the activity to base such memorandums, reports,

records, or data compilations upon a transmission from a person

with knowledge, e.g., in the case of the content of a shipment of

goods, upon a report from the company's receiving agent or in the

case of a computer printout, upon a report from the company's

computer programer or one who has knowledge of the particular

record system. In short, the scope of the phrase "person with

knowledge" is meant to be coterminous with the custodian of the

evidence or other qualified witness. The committee believes this

represents the desired rule in light of the complex nature of

modern business organizations.

The House approved rule 803(8), as submitted by the Supreme

Court, with one substantive change. It excluded from the hearsay

exception reports containing matters observed by police officers

and other law enforcement personnel in criminal cases. Ostensibly,

the reason for this exclusion is that observations by police

officers at the scene of the crime or the apprehension of the

defendant are not as reliable as observations by public officials

in other cases because of the adversarial nature of the

confrontation between the police and the defendant in criminal

cases.

The committee accepts the House's decision to exclude such

recorded observations where the police officer is available to

testify in court about his observation. However, where he is

unavailable as unavailability is defined in rule 804(a)(4) and

(a)(5), the report should be admitted as the best available

evidence. Accordingly, the committee has amended rule 803(8) to

refer to the provision of [proposed] rule 804(b)(5) [deleted],

which allows the admission of such reports, records or other

statements where the police officer or other law enforcement

officer is unavailable because of death, then existing physical or

mental illness or infirmity, or not being successfully subject to

legal process.

The House Judiciary Committee report contained a statement of

intent that "the phrase 'factual findings' in subdivision (c) be

strictly construed and that evaluations or opinions contained in

public reports shall not be admissible under this rule." The

committee takes strong exception to this limiting understanding of

the application of the rule. We do not think it reflects an

understanding of the intended operation of the rule as explained in

the Advisory Committee notes to this subsection. The Advisory

Committee notes on subsection (c) of this subdivision point out

that various kinds of evaluative reports are now admissible under

Federal statutes. 7 U.S.C. Sec. 78, findings of Secretary of

Agriculture prima facie evidence of true grade of grain; 42 U.S.C.

Sec. 269(b), bill of health by appropriate official prima facie

evidence of vessel's sanitary history and condition and compliance

with regulations. These statutory exceptions to the hearsay rule

are preserved. Rule 802. The willingness of Congress to recognize

these and other such evaluative reports provides a helpful guide in

determining the kind of reports which are intended to be admissible

under this rule. We think the restrictive interpretation of the

House overlooks the fact that while the Advisory Committee assumes

admissibility in the first instance of evaluative reports, they are

not admissible if, as the rule states, "the sources of information

or other circumstances indicate lack of trustworthiness."

The Advisory Committee explains the factors to be considered:

* * * * *

Factors which may be assistance in passing upon the admissibility

of evaluative reports include: (1) the timeliness of the

investigation, McCormick, Can the Courts Make Wider Use of

Reports of Official Investigations? 42 Iowa L.Rev. 363 (1957);

(2) the special skill or experience of the official, id.; (3)

whether a hearing was held and the level at which conducted,

Franklin v. Skelly Oil Co., 141 F.2d 568 (19th Cir. 1944); (4)

possible motivation problems suggested by Palmer v. Hoffman, 318

U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943). Others no doubt

could be added.

* * * * *

The committee concludes that the language of the rule together

with the explanation provided by the Advisory Committee furnish

sufficient guidance on the admissibility of evaluative reports.

The proposed Rules of Evidence submitted to Congress contained

identical provisions in rules 803 and 804 (which set forth the

various hearsay exceptions), admitting any hearsay statement not

specifically covered by any of the stated exceptions, if the

hearsay statement was found to have "comparable circumstantial

guarantees of trustworthiness." The House deleted these provisions

(proposed rules 803(24) and 804(b)(6)[(5)]) as injecting "too much

uncertainty" into the law of evidence and impairing the ability of

practitioners to prepare for trial. The House felt that rule 102,

which directs the courts to construe the Rules of Evidence so as to

promote growth and development, would permit sufficient flexibility

to admit hearsay evidence in appropriate cases under various

factual situations that might arise.

We disagree with the total rejection of a residual hearsay

exception. While we view rule 102 as being intended to provide for

a broader construction and interpretation of these rules, we feel

that, without a separate residual provision, the specifically

enumerated exceptions could become tortured beyond any reasonable

circumstances which they were intended to include (even if broadly

construed). Moreover, these exceptions, while they reflect the most

typical and well recognized exceptions to the hearsay rule, may not

encompass every situation in which the reliability and

appropriateness of a particular piece of hearsay evidence make

clear that it should be heard and considered by the trier of fact.

The committee believes that there are certain exceptional

circumstances where evidence which is found by a court to have

guarantees of trust worthiness equivalent to or exceeding the

guarantees reflected by the presently listed exceptions, and to

have a high degree of prolativeness and necessity could properly be

admissible.

The case of Dallas County v. Commercial Union Assoc. Co., Ltd.,

286 F.2d 388 (5th Cir. 1961) illustrates the point. The issue in

that case was whether the tower of the county courthouse collapsed

because it was struck by lightning (covered by insurance) or

because of structural weakness and deterioration of the structure

(not covered). Investigation of the structure revealed the presence

of charcoal and charred timbers. In order to show that lightning

may not have been the cause of the charring, the insurer offered a

copy of a local newspaper published over 50 years earlier

containing an unsigned article describing a fire in the courthouse

while it was under construction. The Court found that the newspaper

did not qualify for admission as a business record or an ancient

document and did not fit within any other recognized hearsay

exception. The court concluded, however, that the article was

trustworthy because it was inconceivable that a newspaper reporter

in a small town would report a fire in the courthouse if none had

occurred. See also United States v. Barbati, 284 F. Supp. 409

(E.D.N.Y. 1968).

Because exceptional cases like the Dallas County case may arise

in the future, the committee has decided to reinstate a residual

exception for rules 803 and 804(b).

The committee, however, also agrees with those supporters of the

House version who felt that an overly broad residual hearsay

exception could emasculate the hearsay rule and the recognized

exceptions or vitiate the rationale behind codification of the

rules.

Therefore, the committee has adopted a residual exception for

rules 803 and 804(b) of much narrower scope and applicability than

the Supreme Court version. In order to qualify for admission, a

hearsay statement not falling within one of the recognized

exceptions would have to satisfy at least four conditions. First,

it must have "equivalent circumstantial guarantees of

trustworthiness." Second, it must be offered as evidence of a

material fact. Third, the court must determine that the statement

"is more probative on the point for which it is offered than any

other evidence which the proponent can procure through reasonable

efforts." This requirement is intended to insure that only

statements which have high probative value and necessity may

qualify for admission under the residual exceptions. Fourth, the

court must determine that "the general purposes of these rules and

the interests of justice will best be served by admission of the

statement into evidence."

It is intended that the residual hearsay exceptions will be used

very rarely, an only in exceptional circumstances. The committee

does not intend to establish a broad license for trial judges to

admit hearsay statements that do not fall within one of the other

exceptions contained in rules 803 and 804(b). The residual

exceptions are not meant to authorize major judicial revisions of

the hearsay rule, including its present exceptions. Such major

revisions are best accomplished by legislative action. It is

intended that in any case in which evidence is sought to be

admitted under these subsections, the trial judge will exercise no

less care, reflection and caution than the courts did under the

common law in establishing the now-recognized exceptions to the

hearsay rule.

In order to establish a well-defined jurisprudence, the special

facts and circumstances which, in the court's judgment, indicates

that the statement has a sufficiently high degree of

trustworthiness and necessity to justify its admission should be

stated on the record. It is expected that the court will give the

opposing party a full and adequate opportunity to contest the

admission of any statement sought to be introduced under these

subsections.

NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597

Rule 803 defines when hearsay statements are admissible in

evidence even though the declarant is available as a witness. The

Senate amendments make three changes in this rule.

The House bill provides in subsection (6) that records of a

regularly conducted "business" activity qualify for admission into

evidence as an exception to the hearsay rule. "Business" is defined

as including "business, profession, occupation and calling of every

kind." The Senate amendment drops the requirement that the records

be those of a "business" activity and eliminates the definition of

"business." The Senate amendment provides that records are

admissible if they are records of a regularly conducted "activity."

The Conference adopts the House provision that the records must

be those of a regularly conducted "business" activity. The

Conferees changed the definition of "business" contained in the

House provision in order to make it clear that the records of

institutions and associations like schools, churches and hospitals

are admissible under this provision. The records of public schools

and hospitals are also covered by Rule 803(8), which deals with

public records and reports.

The Senate amendment adds language, not contained in the House

bill, that refers to another rule that was added by the Senate in

another amendment ([proposed] Rule 804(b)(5) - Criminal law

enforcement records and reports [deleted]).

In view of its action on [proposed] Rule 804(b)(5) (Criminal law

enforcement records and reports) [deleted], the Conference does not

adopt the Senate amendment and restores the bill to the House

version.

The Senate amendment adds a new subsection, (24), which makes

admissible a hearsay statement not specifically covered by any of

the previous twenty-three subsections, if the statement has

equivalent circumstantial guarantees of trustworthiness and if the

court determines that (A) the statement is offered as evidence of a

material fact; (B) the statement is more probative on the point for

which it is offered than any other evidence the proponent can

procure through reasonable efforts; and (C) the general purposes of

these rules and the interests of justice will best be served by

admission of the statement into evidence.

The House bill eliminated a similar, but broader, provision

because of the conviction that such a provision injected too much

uncertainty into the law of evidence regarding hearsay and impaired

the ability of a litigant to prepare adequately for trial.

The Conference adopts the Senate amendment with an amendment that

provides that a party intending to request the court to use a

statement under this provision must notify any adverse party of

this intention as well as of the particulars of the statement,

including the name and address of the declarant. This notice must

be given sufficiently in advance of the trial or hearing to provide

any adverse party with a fair opportunity to prepare to contest the

use of the statement.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT

The contents of Rule 803(24) and Rule 804(b)(5) have been

combined and transferred to a new Rule 807. This was done to

facilitate additions to Rules 803 and 804. No change in meaning is

intended.

GAP Report on Rule 803. The words "Transferred to Rule 807" were

substituted for "Abrogated."

COMMITTEE NOTES ON RULES - 2000 AMENDMENT

The amendment provides that the foundation requirements of Rule

803(6) can be satisfied under certain circumstances without the

expense and inconvenience of producing time-consuming foundation

witnesses. Under current law, courts have generally required

foundation witnesses to testify. See, e.g., Tongil Co., Ltd. v.

Hyundai Merchant Marine Corp., 968 F.2d 999 (9th Cir. 1992)

(reversing a judgment based on business records where a qualified

person filed an affidavit but did not testify). Protections are

provided by the authentication requirements of Rule 902(11) for

domestic records, Rule 902(12) for foreign records in civil cases,

and 18 U.S.C. Sec. 3505 for foreign records in criminal cases.

GAP Report - Proposed Amendment to Rule 803(6). The Committee

made no changes to the published draft of the proposed amendment to

Evidence Rule 803(6).

AMENDMENT BY PUBLIC LAW

1975 - Exception (23). Pub. L. 94-149 inserted a comma

immediately after "family" in catchline.

-End-

-CITE-

28 USC APPENDIX Rule 804 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VIII. HEARSAY

-HEAD-

Rule 804. Hearsay Exceptions; Declarant Unavailable

-STATUTE-

(a) Definition of unavailability. - "Unavailability as a witness"

includes situations in which the declarant -

(1) is exempted by ruling of the court on the ground of

privilege from testifying concerning the subject matter of the

declarant's statement; or

(2) persists in refusing to testify concerning the subject

matter of the declarant's statement despite an order of the court

to do so; or

(3) testifies to a lack of memory of the subject matter of the

declarant's statement; or

(4) is unable to be present or to testify at the hearing

because of death or then existing physical or mental illness or

infirmity; or

(5) is absent from the hearing and the proponent of a statement

has been unable to procure the declarant's attendance (or in the

case of a hearsay exception under subdivision (b)(2), (3), or

(4), the declarant's attendance or testimony) by process or other

reasonable means.

A declarant is not unavailable as a witness if exemption,

refusal, claim of lack of memory, inability, or absence is due to

the procurement or wrongdoing of the proponent of a statement for

the purpose of preventing the witness from attending or testifying.

(b) Hearsay exceptions. - The following are not excluded by the

hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. - Testimony given as a witness at another

hearing of the same or a different proceeding, or in a deposition

taken in compliance with law in the course of the same or another

proceeding, if the party against whom the testimony is now

offered, or, in a civil action or proceeding, a predecessor in

interest, had an opportunity and similar motive to develop the

testimony by direct, cross, or redirect examination.

(2) Statement under belief of impending death. - In a

prosecution for homicide or in a civil action or proceeding, a

statement made by a declarant while believing that the

declarant's death was imminent, concerning the cause or

circumstances of what the declarant believed to be impending

death.

(3) Statement against interest. - A statement which was at the

time of its making so far contrary to the declarant's pecuniary

or proprietary interest, or so far tended to subject the

declarant to civil or criminal liability, or to render invalid a

claim by the declarant against another, that a reasonable person

in the declarant's position would not have made the statement

unless believing it to be true. A statement tending to expose the

declarant to criminal liability and offered to exculpate the

accused is not admissible unless corroborating circumstances

clearly indicate the trustworthiness of the statement.

(4) Statement of personal or family history. - (A) A statement

concerning the declarant's own birth, adoption, marriage,

divorce, legitimacy, relationship by blood, adoption, or

marriage, ancestry, or other similar fact of personal or family

history, even though declarant had no means of acquiring personal

knowledge of the matter stated; or (B) a statement concerning the

foregoing matters, and death also, of another person, if the

declarant was related to the other by blood, adoption, or

marriage or was so intimately associated with the other's family

as to be likely to have accurate information concerning the

matter declared.

[(5) Other exceptions.] [Transferred to Rule 807]

(6) Forfeiture by wrongdoing. - A statement offered against a

party that has engaged or acquiesced in wrongdoing that was

intended to, and did, procure the unavailability of the declarant

as a witness.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1942; Pub. L.

94-149, Sec. 1(12), (13), Dec. 12, 1975, 89 Stat. 806; Mar. 2,

1987, eff. Oct. 1, 1987; Pub. L. 100-690, title VII, Sec. 7075(b),

Nov. 18, 1988, 102 Stat. 4405; Apr. 11, 1997, eff. Dec. 1, 1997.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

As to firsthand knowledge on the part of hearsay declarants, see

the introductory portion of the Advisory Committee's Note to Rule

803.

Subdivision (a). The definition of unavailability implements the

division of hearsay exceptions into two categories by Rules 803 and

804(b).

At common law the unavailability requirement was evolved in

connection with particular hearsay exceptions rather than along

general lines. For example, see the separate explication of

unavailability in relation to former testimony, declarations

against interest, and statements of pedigree, separately developed

in McCormick Secs. 234, 257, and 297. However, no reason is

apparent for making distinctions as to what satisfies

unavailability for the different exceptions. The treatment in the

rule is therefore uniform although differences in the range of

process for witnesses between civil and criminal cases will lead to

a less exacting requirement under item (5). See Rule 45(e) of the

Federal Rules of Civil Procedure and Rule 17(e) of the Federal

Rules of Criminal Procedure.

Five instances of unavailability are specified:

(1) Substantial authority supports the position that exercise of

a claim of privilege by the declarant satisfies the requirement of

unavailability (usually in connection with former testimony). Wyatt

v. State, 35 Ala.App. 147, 46 So.2d 837 (1950); State v. Stewart,

85 Kan. 404, 116 P. 489 (1911); Annot., 45 A.L.R.2d 1354; Uniform

Rule 62(7)(a); California Evidence Code Sec. 240(a)(1); Kansas Code

of Civil Procedure Sec. 60-459(g) (1). A ruling by the judge is

required, which clearly implies that an actual claim of privilege

must be made.

(2) A witness is rendered unavailable if he simply refuses to

testify concerning the subject matter of his statement despite

judicial pressures to do so, a position supported by similar

considerations of practicality. Johnson v. People, 152 Colo. 586,

384 P.2d 454 (1963); People v. Pickett, 339 Mich. 294, 63 N.W.2d

681, 45 A.L.R.2d 1341 (1954). Contra, Pleau v. State, 255 Wis. 362,

38 N.W.2d 496 (1949).

(3) The position that a claimed lack of memory by the witness of

the subject matter of his statement constitutes unavailability

likewise finds support in the cases, though not without dissent.

McCormick Sec. 234, p. 494. If the claim is successful, the

practical effect is to put the testimony beyond reach, as in the

other instances. In this instance, however, it will be noted that

the lack of memory must be established by the testimony of the

witness himself, which clearly contemplates his production and

subjection to cross-examination.

(4) Death and infirmity find general recognition as ground.

McCormick Secs. 234, 257, 297; Uniform Rule 62(7)(c); California

Evidence Code Sec. 240(a)(3); Kansas Code of Civil Procedure Sec.

60-459(g)(3); New Jersey Evidence Rule 62(6)(c). See also the

provisions on use of depositions in Rule 32(a)(3) of the Federal

Rules of Civil Procedure and Rule 15(e) of the Federal Rules of

Criminal Procedure.

(5) Absence from the hearing coupled with inability to compel

attendance by process or other reasonable means also satisfies the

requirement. McCormick Sec. 234; Uniform Rule 62(7)(d) and (e);

California Evidence Code Sec. 240(a)(4) and (5); Kansas Code of

Civil Procedure Sec. 60-459(g)(4) and (5); New Jersey Rule 62(6)(b)

and (d). See the discussion of procuring attendance of witnesses

who are nonresidents or in custody in Barber v. Page, 390 U.S. 719,

88 S.Ct. 1318, 20 L.Ed.2d 255 (1968).

If the conditions otherwise constituting unavailability result

from the procurement or wrongdoing of the proponent of the

statement, the requirement is not satisfied. The rule contains no

requirement that an attempt be made to take the deposition of a

declarant.

Subdivision (b). Rule 803 supra, is based upon the assumption

that a hearsay statement falling within one of its exceptions

possesses qualities which justify the conclusion that whether the

declarant is available or unavailable is not a relevant factor in

determining admissibility. The instant rule proceeds upon a

different theory: hearsay which admittedly is not equal in quality

to testimony of the declarant on the stand may nevertheless be

admitted if the declarant is unavailable and if his statement meets

a specified standard. The rule expresses preferences: testimony

given on the stand in person is preferred over hearsay, and

hearsay, if of the specified quality, is preferred over complete

loss of the evidence of the declarant. The exceptions evolved at

common law with respect to declarations of unavailable declarants

furnish the basis for the exceptions enumerated in the proposal.

The term "unavailable" is defined in subdivision (a).

Exception (1). Former testimony does not rely upon some set of

circumstances to substitute for oath and cross-examination, since

both oath and opportunity to cross-examine were present in fact.

The only missing one of the ideal conditions for the giving of

testimony is the presence of trier and opponent ("demeanor

evidence"). This is lacking with all hearsay exceptions. Hence it

may be argued that former testimony is the strongest hearsay and

should be included under Rule 803, supra. However, opportunity to

observe demeanor is what in a large measure confers depth and

meaning upon oath and cross-examination. Thus in cases under Rule

803 demeanor lacks the significance which it possesses with respect

to testimony. In any event, the tradition, founded in experience,

uniformly favors production of the witness if he is available. The

exception indicates continuation of the policy. This preference for

the presence of the witness is apparent also in rules and statutes

on the use of depositions, which deal with substantially the same

problem.

Under the exception, the testimony may be offered (1) against the

party against whom it was previously offered or (2) against the

party by whom it was previously offered. In each instance the

question resolves itself into whether fairness allows imposing,

upon the party against whom now offered, the handling of the

witness on the earlier occasion. (1) If the party against whom now

offered is the one against whom the testimony was offered

previously, no unfairness is apparent in requiring him to accept

his own prior conduct of cross-examination or decision not to

cross-examine. Only demeanor has been lost, and that is inherent in

the situation. (2) If the party against whom now offered is the one

by whom the testimony was offered previously, a satisfactory answer

becomes somewhat more difficult. One possibility is to proceed

somewhat along the line of an adoptive admission, i.e. by offering

the testimony proponent in effect adopts it. However, this theory

savors of discarded concepts of witnesses' belonging to a party, of

litigants' ability to pick and choose witnesses, and of vouching

for one's own witnesses. Cf. McCormick Sec. 246, pp. 526-527; 4

Wigmore Sec. 1075. A more direct and acceptable approach is simply

to recognize direct and redirect examination of one's own witness

as the equivalent of cross-examining an opponent's witness.

Falknor, Former Testimony and the Uniform Rules: A Comment, 38

N.Y.U.L.Rev. 651, n. 1 (1963); McCormick Sec. 231, p. 483. See also

5 Wigmore Sec. 1389. Allowable techniques for dealing with hostile,

doublecrossing, forgetful, and mentally deficient witnesses leave

no substance to a claim that one could not adequately develop his

own witness at the former hearing. An even less appealing argument

is presented when failure to develop fully was the result of a

deliberate choice.

The common law did not limit the admissibility of former

testimony to that given in an earlier trial of the same case,

although it did require identity of issues as a means of insuring

that the former handling of the witness was the equivalent of what

would now be done if the opportunity were presented. Modern

decisions reduce the requirement to "substantial" identity.

McCormick Sec. 233. Since identity of issues is significant only in

that it bears on motive and interest in developing fully the

testimony of the witness, expressing the matter in the latter terms

is preferable. Id. Testimony given at a preliminary hearing was

held in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26

L.Ed.2d 489 (1970), to satisfy confrontation requirements in this

respect.

As a further assurance of fairness in thrusting upon a party the

prior handling of the witness, the common law also insisted upon

identity of parties, deviating only to the extent of allowing

substitution of successors in a narrowly construed privity.

Mutuality as an aspect of identity is now generally discredited,

and the requirement of identity of the offering party disappears

except as it might affect motive to develop the testimony. Falknor,

supra, at 652; McCormick Sec. 232, pp. 487-488. The question

remains whether strict identity, or privity, should continue as a

requirement with respect to the party against whom offered. The

rule departs to the extent of allowing substitution of one with the

right and opportunity to develop the testimony with similar motive

and interest. This position is supported by modern decisions.

McCormick Sec. 232, pp. 489-490; 5 Wigmore Sec. 1388.

Provisions of the same tenor will be found in Uniform Rule

63(3)(b); California Evidence Code Secs. 1290-1292; Kansas Code of

Civil Procedure Sec. 60-460(c)(2); New Jersey Evidence Rule 63(3).

Unlike the rule, the latter three provide either that former

testimony is not admissible if the right of confrontation is denied

or that it is not admissible if the accused was not a party to the

prior hearing. The genesis of these limitations is a caveat in

Uniform Rule 63(3) Comment that use of former testimony against an

accused may violate his right of confrontation. Mattox v. United

States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), held that

the right was not violated by the Government's use, on a retrial of

the same case, of testimony given at the first trial by two

witnesses since deceased. The decision leaves open the questions

(1) whether direct and redirect are equivalent to cross-examination

for purposes of confrontation, (2) whether testimony given in a

different proceeding is acceptable, and (3) whether the accused

must himself have been a party to the earlier proceeding or whether

a similarly situated person will serve the purpose. Professor

Falknor concluded that, if a dying declaration untested by

cross-examination is constitutionally admissible, former testimony

tested by the cross-examination of one similarly situated does not

offend against confrontation. Falknor, supra, at 659-660. The

constitutional acceptability of dying declarations has often been

conceded. Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337,

39 L.Ed. 409 (1895); Kirby v. United States, 174 U.S. 47, 61, 19

S.Ct. 574, 43 L.Ed. 890 (1899); Pointer v. Texas, 380 U.S. 400,

407, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

Exception (2). The exception is the familiar dying declaration of

the common law, expanded somewhat beyond its traditionally narrow

limits. While the original religious justification for the

exception may have lost its conviction for some persons over the

years, it can scarcely be doubted that powerful psychological

pressures are present. See 5 Wigmore Sec. 1443 and the classic

statement of Chief Baron Eyre in Rex v. Woodcock, 1 Leach 500, 502,

168 Eng.Rep. 352, 353 (K.B. 1789).

The common law required that the statement be that of the victim,

offered in a prosecution for criminal homicide. Thus declarations

by victims in prosecutions for other crimes, e.g. a declaration by

a rape victim who dies in childbirth, and all declarations in civil

cases were outside the scope of the exception. An occasional

statute has removed these restrictions, as in Colo.R.S. Sec.

52-1-20, or has expanded the area of offenses to include abortions,

5 Wigmore Sec. 1432, p. 224, n. 4. Kansas by decision extended the

exception to civil cases. Thurston v. Fritz, 91 Kan. 468, 138 P.

625 (1914). While the common law exception no doubt originated as a

result of the exceptional need for the evidence in homicide cases,

the theory of admissibility applies equally in civil cases and in

prosecutions for crimes other than homicide. The same

considerations suggest abandonment of the limitation to

circumstances attending the event in question, yet when the

statement deals with matters other than the supposed death, its

influence is believed to be sufficiently attenuated to justify the

limitation. Unavailability is not limited to death. See subdivision

(a) of this rule. Any problem as to declarations phrased in terms

of opinion is laid at rest by Rule 701, and continuation of a

requirement of first-hand knowledge is assured by Rule 602.

Comparable provisions are found in Uniform Rule 63 (5);

California Evidence Code Sec. 1242; Kansas Code of Civil Procedure

Sec. 60-460(e); New Jersey Evidence Rule 63(5).

Exception (3). The circumstantial guaranty of reliability for

declarations against interest is the assumption that persons do not

make statements which are damaging to themselves unless satisfied

for good reason that they are true. Hileman v. Northwest

Engineering Co., 346 F.2d 668 (6th Cir. 1965). If the statement is

that of a party, offered by his opponent, it comes in as an

admission, Rule 803(d)(2), and there is no occasion to inquire

whether it is against interest, this not being a condition

precedent to admissibility of admissions by opponents.

The common law required that the interest declared against be

pecuniary or proprietary but within this limitation demonstrated

striking ingenuity in discovering an against-interest aspect.

Higham v. Ridgeway, 10 East 109, 103 Eng.Rep. 717 (K.B. 1808); Reg.

v. Overseers of Birmingham, 1 B. & S. 763, 121 Eng.Rep. 897 (Q.B.

1861); McCormick, Sec. 256, p. 551, nn. 2 and 3.

The exception discards the common law limitation and expands to

the full logical limit. One result is to remove doubt as to the

admissibility of declarations tending to establish a tort liability

against the declarant or to extinguish one which might be asserted

by him, in accordance with the trend of the decisions in this

country. McCormick Sec. 254, pp. 548-549. Another is to allow

statements tending to expose declarant to hatred, ridicule, or

disgrace, the motivation here being considered to be as strong as

when financial interests are at stake. McCormick Sec. 255, p. 551.

And finally, exposure to criminal liability satisfies the

against-interest requirement. The refusal of the common law to

concede the adequacy of a penal interest was no doubt indefensible

in logic, see the dissent of Mr. Justice Holmes in Donnelly v.

United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913), but

one senses in the decisions a distrust of evidence of confessions

by third persons offered to exculpate the accused arising from

suspicions of fabrication either of the fact of the making of the

confession or in its contents, enhanced in either instance by the

required unavailability of the declarant. Nevertheless, an

increasing amount of decisional law recognizes exposure to

punishment for crime as a sufficient stake. People v. Spriggs, 60

Cal.2d 868, 36 Cal.Rptr. 841, 389 P.2d 377 (1964); Sutter v.

Easterly, 354 Mo. 282, 189 S.W.2d 284 (1945); Band's Refuse

Removal, Inc. v. Fairlawn Borough, 62 N.J.Super. 552, 163 A.2d 465

(1960); Newberry v. Commonwealth, 191 Va. 445, 61 S.E.2d 318

(1950); Annot., 162 A.L.R. 446. The requirement of corroboration is

included in the rule in order to effect an accommodation between

these competing considerations. When the statement is offered by

the accused by way of exculpation, the resulting situation is not

adapted to control by rulings as to the weight of the evidence and,

hence the provision is cast in terms of a requirement preliminary

to admissibility. Cf. Rule 406(a). The requirement of corroboration

should be construed in such a manner as to effectuate its purpose

of circumventing fabrication.

Ordinarily the third-party confession is thought of in terms of

exculpating the accused, but this is by no means always or

necessarily the case: it may include statements implicating him,

and under the general theory of declarations against interest they

would be admissible as related statements. Douglas v. Alabama, 380

U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), and Bruton v.

United States, 389 U.S. 818, 88 S.Ct. 126, 19 L.Ed.2d 70 (1968),

both involved confessions by codefendants which implicated the

accused. While the confession was not actually offered in evidence

in Douglas, the procedure followed effectively put it before the

jury, which the Court ruled to be error. Whether the confession

might have been admissible as a declaration against penal interest

was not considered or discussed. Bruton assumed the

inadmissibility, as against the accused, of the implicating

confession of his codefendant, and centered upon the question of

the effectiveness of a limiting instruction. These decisions,

however, by no means require that all statements implicating

another person be excluded from the category of declarations

against interest. Whether a statement is in fact against interest

must be determined from the circumstances of each case. Thus a

statement admitting guilt and implicating another person, made

while in custody, may well be motivated by a desire to curry favor

with the authorities and hence fail to qualify as against interest.

See the dissenting opinion of Mr. Justice White in Bruton. On the

other hand, the same words spoken under different circumstances,

e.g., to an acquaintance, would have no difficulty in qualifying.

The rule does not purport to deal with questions of the right of

confrontation.

The balancing of self-serving against dissenting aspects of a

declaration is discussed in McCormick Sec. 256.

For comparable provisions, see Uniform Rule 63(10): California

Evidence Code Sec. 1230; Kansas Code of Civil Procedure Sec.

60-460(j); New Jersey Evidence Rule 63(10).

Exception (4). The general common law requirement that a

declaration in this area must have been made ante litem motam has

been dropped, as bearing more appropriately on weight than

admissibility. See 5 Wigmore Sec. 1483. Item (i)[(A)] specifically

disclaims any need of firsthand knowledge respecting declarant's

own personal history. In some instances it is self-evident

(marriage) and in others impossible and traditionally not required

(date of birth). Item (ii)[(B)] deals with declarations concerning

the history of another person. As at common law, declarant is

qualified if related by blood or marriage. 5 Wigmore Sec. 1489. In

addition, and contrary to the common law, declarant qualifies by

virtue of intimate association with the family. Id., Sec. 1487. The

requirement sometimes encountered that when the subject of the

statement is the relationship between two other persons the

declarant must qualify as to both is omitted. Relationship is

reciprocal. Id., Sec. 1491.

For comparable provisions, see Uniform Rule 63 (23), (24), (25);

California Evidence Code Secs. 1310, 1311; Kansas Code of Civil

Procedure Sec. 60-460(u), (v), (w); New Jersey Evidence Rules

63(23), 63(24), 63(25).

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

Rule 804(a)(3) was approved in the form submitted by the Court.

However, the Committee intends no change in existing federal law

under which the court may choose to disbelieve the declarant's

testimony as to his lack of memory. See United States v. Insana,

423 F.2d 1165, 1169-1170 (2nd Cir.), cert. denied, 400 U.S. 841

(1970).

Rule 804(a)(5) as submitted to the Congress provided, as one type

of situation in which a declarant would be deemed "unavailable",

that he be "absent from the hearing and the proponent of his

statement has been unable to procure his attendance by process or

other reasonable means." The Committee amended the Rule to insert

after the word "attendance" the parenthetical expression "(or, in

the case of a hearsay exception under subdivision (b)(2), (3), or

(4), his attendance or testimony)". The amendment is designed

primarily to require that an attempt be made to depose a witness

(as well as to seek his attendance) as a precondition to the

witness being deemed unavailable. The Committee, however,

recognized the propriety of an exception to this additional

requirement when it is the declarant's former testimony that is

sought to be admitted under subdivision (b)(1).

Rule 804(b)(1) as submitted by the Court allowed prior testimony

of an unavailable witness to be admissible if the party against

whom it is offered or a person "with motive and interest similar"

to his had an opportunity to examine the witness. The Committee

considered that it is generally unfair to impose upon the party

against whom the hearsay evidence is being offered responsibility

for the manner in which the witness was previously handled by

another party. The sole exception to this, in the Committee's view,

is when a party's predecessor in interest in a civil action or

proceeding had an opportunity and similar motive to examine the

witness. The Committee amended the Rule to reflect these policy

determinations.

Rule 804(b)(3) as submitted by the Court (now Rule 804(b)(2) in

the bill) proposed to expand the traditional scope of the dying

declaration exception (i.e. a statement of the victim in a homicide

case as to the cause or circumstances of his believed imminent

death) to allow such statements in all criminal and civil cases.

The Committee did not consider dying declarations as among the most

reliable forms of hearsay. Consequently, it amended the provision

to limit their admissibility in criminal cases to homicide

prosecutions, where exceptional need for the evidence is present.

This is existing law. At the same time, the Committee approved the

expansion to civil actions and proceedings where the stakes do not

involve possible imprisonment, although noting that this could lead

to forum shopping in some instances.

Rule 804(b)(4) as submitted by the Court (now Rule 804(b)(3) in

the bill) provided as follows:

Statement against interest. - A statement which was at the time

of its making so far contrary to the declarant's pecuniary or

proprietary interest or so far tended to subject him to civil or

criminal liability or to render invalid a claim by him against

another or to make him an object of hatred, ridicule, or

disgrace, that a reasonable man in his position would not have

made the statement unless he believed it to be true. A statement

tending to exculpate the accused is not admissible unless

corroborated.

The Committee determined to retain the traditional hearsay

exception for statements against pecuniary or proprietary interest.

However, it deemed the Court's additional references to statements

tending to subject a declarant to civil liability or to render

invalid a claim by him against another to be redundant as included

within the scope of the reference to statements against pecuniary

or proprietary interest. See Gichner v. Antonio Triano Tile and

Marble Co., 410 F.2d 238 (D.C. Cir. 1968). Those additional

references were accordingly deleted.

The Court's Rule also proposed to expand the hearsay limitation

from its present federal limitation to include statements

subjecting the declarant to criminal liability and statements

tending to make him an object of hatred, ridicule, or disgrace. The

Committee eliminated the latter category from the subdivision as

lacking sufficient guarantees of reliability. See United States v.

Dovico, 380 F.2d 325, 327nn.2,4 (2nd Cir.), cert. denied, 389 U.S.

944 (1967). As for statements against penal interest, the Committee

shared the view of the Court that some such statements do possess

adequate assurances of reliability and should be admissible. It

believed, however, as did the Court, that statements of this type

tending to exculpate the accused are more suspect and so should

have their admissibility conditioned upon some further provision

insuring trustworthiness. The proposal in the Court Rule to add a

requirement of simple corroboration was, however, deemed

ineffective to accomplish this purpose since the accused's own

testimony might suffice while not necessarily increasing the

reliability of the hearsay statement. The Committee settled upon

the language "unless corroborating circumstances clearly indicate

the trustworthiness of the statement" as affording a proper

standard and degree of discretion. It was contemplated that the

result in such cases as Donnelly v. United States, 228 U.S. 243

(1912), where the circumstances plainly indicated reliability,

would be changed. The Committee also added to the Rule the final

sentence from the 1971 Advisory Committee draft, designed to codify

the doctrine of Bruton v. United States, 391 U.S. 123 (1968). The

Committee does not intend to affect the existing exception to the

Bruton principle where the codefendant takes the stand and is

subject to cross-examination, but believed there was no need to

make specific provision for this situation in the Rule, since in

that even the declarant would not be "unavailable".

NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277

Subdivision (a) of rule 804 as submitted by the Supreme Court

defined the conditions under which a witness was considered to be

unavailable. It was amended in the House.

The purpose of the amendment, according to the report of the

House Committee on the Judiciary, is "primarily to require that an

attempt be made to depose a witness (as well as to seek his

attendance) as a precondition to the witness being unavailable."

Under the House amendment, before a witness is declared

unavailable, a party must try to depose a witness (declarant) with

respect to dying declarations, declarations against interest, and

declarations of pedigree. None of these situations would seem to

warrant this needless, impractical and highly restrictive

complication. A good case can be made for eliminating the

unavailability requirement entirely for declarations against

interest cases. [Uniform rule 63(10); Kan. Stat. Anno. 60-460(j);

2A N.J. Stats. Anno. 84-63(10).]

In dying declaration cases, the declarant will usually, though

not necessarily, be deceased at the time of trial. Pedigree

statements which are admittedly and necessarily based largely on

word of mouth are not greatly fortified by a deposition

requirement.

Depositions are expensive and time-consuming. In any event,

deposition procedures are available to those who wish to resort to

them. Moreover, the deposition procedures of the Civil Rules and

Criminal Rules are only imperfectly adapted to implementing the

amendment. No purpose is served unless the deposition, if taken,

may be used in evidence. Under Civil Rule (a)(3) and Criminal Rule

15(e), a deposition, though taken, may not be admissible, and under

Criminal Rule 15(a) substantial obstacles exist in the way of even

taking a deposition.

For these reasons, the committee deleted the House amendment.

The committee understands that the rule as to unavailability, as

explained by the Advisory Committee "contains no requirement that

an attempt be made to take the deposition of a declarant." In

reflecting the committee's judgment, the statement is accurate

insofar as it goes. Where, however, the proponent of the statement,

with knowledge of the existence of the statement, fails to confront

the declarant with the statement at the taking of the deposition,

then the proponent should not, in fairness, be permitted to treat

the declarant as "unavailable" simply because the declarant was not

amendable to process compelling his attendance at trial. The

committee does not consider it necessary to amend the rule to this

effect because such a situation abuses, not conforms to, the rule.

Fairness would preclude a person from introducing a hearsay

statement on a particular issue if the person taking the deposition

was aware of the issue at the time of the deposition but failed to

depose the unavailable witness on that issue.

Former testimony. - Rule 804(b)(1) as submitted by the Court

allowed prior testimony of an unavailable witness to be admissible

if the party against whom it is offered or a person "with motive

and interest similar" to his had an opportunity to examine the

witness.

The House amended the rule to apply only to a party's predecessor

in interest. Although the committee recognizes considerable merit

to the rule submitted by the Supreme Court, a position which has

been advocated by many scholars and judges, we have concluded that

the difference between the two versions is not great and we accept

the House amendment.

The rule defines those statements which are considered to be

against interest and thus of sufficient trustworthiness to be

admissible even though hearsay. With regard to the type of interest

declared against, the version submitted by the Supreme Court

included inter alia, statements tending to subject a declarant to

civil liability or to invalidate a claim by him against another.

The House struck these provisions as redundant. In view of the

conflicting case law construing pecuniary or proprietary interests

narrowly so as to exclude, e.g., tort cases, this deletion could be

misconstrued.

Three States which have recently codified their rules of evidence

have followed the Supreme Court's version of this rule, i.e., that

a statement is against interest if it tends to subject a declarant

to civil liability. [Nev. Rev. Stats. Sec. 51.345; N. Mex. Stats.

(1973 supp.) Sec. 20-4-804(4); West's Wis. Stats. Anno. (1973

supp.) Sec. 908.045(4).]

The committee believes that the reference to statements tending

to subject a person to civil liability constitutes a desirable

clarification of the scope of the rule. Therefore, we have

reinstated the Supreme Court language on this matter.

The Court rule also proposed to expand the hearsay limitation

from its present federal limitation to include statements

subjecting the declarant to statements tending to make him an

object of hatred, ridicule, or disgrace. The House eliminated the

latter category from the subdivision as lacking sufficient

guarantees of reliability. Although there is considerable support

for the admissibility of such statements (all three of the State

rules referred to supra, would admit such statements), we accept

the deletion by the House.

The House amended this exception to add a sentence making

inadmissible a statement or confession offered against the accused

in a criminal case, made by a codefendant or other person

implicating both himself and the accused. The sentence was added to

codify the constitutional principle announced in Bruton v. United

States, 391 U.S. 123 (1968). Bruton held that the admission of the

extrajudicial hearsay statement of one codefendant inculpating a

second codefendant violated the confrontation clause of the sixth

amendment.

The committee decided to delete this provision because the basic

approach of the rules is to avoid codifying, or attempting to

codify, constitutional evidentiary principles, such as the fifth

amendment's right against self-incrimination and, here, the sixth

amendment's right of confrontation. Codification of a

constitutional principle is unnecessary and, where the principle is

under development, often unwise. Furthermore, the House provision

does not appear to recognize the exceptions to the Bruton rule,

e.g. where the codefendant takes the stand and is subject to cross

examination; where the accused confessed, see United States v.

Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied 397 U.S. 942

(1907); where the accused was placed at the scene of the crime, see

United States v. Zelker, 452 F.2d 1009 (2d Cir. 1971). For these

reasons, the committee decided to delete this provision.

Note to Subdivision (b)(5). See Note to Paragraph (24), Notes of

Committee on the Judiciary, Senate Report No. 93-1277, set out as a

note under rule 803 of these rules.

NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597

Rule 804 defines what hearsay statements are admissible in

evidence if the declarant is unavailable as a witness. The Senate

amendments make four changes in the rule.

Subsection (a) defines the term "unavailability as a witness".

The House bill provides in subsection (a)(5) that the party who

desires to use the statement must be unable to procure the

declarant's attendance by process or other reasonable means. In the

case of dying declarations, statements against interest and

statements of personal or family history, the House bill requires

that the proponent must also be unable to procure the declarant's

testimony (such as by deposition or interrogatories) by process or

other reasonable means. The Senate amendment eliminates this latter

provision.

The Conference adopts the provision contained in the House bill.

The Senate amendment to subsection (b)(3) provides that a

statement is against interest and not excluded by the hearsay rule

when the declarant is unavailable as a witness, if the statement

tends to subject a person to civil or criminal liability or renders

invalid a claim by him against another. The House bill did not

refer specifically to civil liability and to rendering invalid a

claim against another. The Senate amendment also deletes from the

House bill the provision that subsection (b)(3) does not apply to a

statement or confession, made by a codefendant or another, which

implicates the accused and the person who made the statement, when

that statement or confession is offered against the accused in a

criminal case.

The Conference adopts the Senate amendment. The Conferees intend

to include within the purview of this rule, statements subjecting a

person to civil liability and statements rendering claims invalid.

The Conferees agree to delete the provision regarding statements by

a codefendant, thereby reflecting the general approach in the Rules

of Evidence to avoid attempting to codify constitutional

evidentiary principles.

The Senate amendment adds a new subsection, (b)(6) [now (b)(5)],

which makes admissible a hearsay statement not specifically covered

by any of the five previous subsections, if the statement has

equivalent circumstantial guarantees of trustworthiness and if the

court determines that (A) the statement is offered as evidence of a

material fact; (B) the statement is more probative on the point for

which it is offered than any other evidence the proponent can

procure through reasonable efforts; and (C) the general purposes of

these rules and the interests of justice will best be served by

admission of the statement into evidence.

The House bill eliminated a similar, but broader, provision

because of the conviction that such a provision injected too much

uncertainty into the law of evidence regarding hearsay and impaired

the ability of a litigant to prepare adequately for trial.

The Conference adopts the Senate amendment with an amendment that

renumbers this subsection and provides that a party intending to

request the court to use a statement under this provision must

notify any adverse party of this intention as well as of the

particulars of the statement, including the name and address of the

declarant. This notice must be given sufficiently in advance of the

trial or hearing to provide any adverse party with a fair

opportunity to prepare the contest the use of the statement.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT

Subdivision (b)(5). The contents of Rule 803(24) and Rule

804(b)(5) have been combined and transferred to a new Rule 807.

This was done to facilitate additions to Rules 803 and 804. No

change in meaning is intended.

Subdivision (b)(6). Rule 804(b)(6) has been added to provide that

a party forfeits the right to object on hearsay grounds to the

admission of a declarant's prior statement when the party's

deliberate wrongdoing or acquiescence therein procured the

unavailability of the declarant as a witness. This recognizes the

need for a prophylactic rule to deal with abhorrent behavior "which

strikes at the heart of the system of justice itself." United

States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982), cert.

denied, 467 U.S. 1204 (1984). The wrongdoing need not consist of a

criminal act. The rule applies to all parties, including the

government.

Every circuit that has resolved the question has recognized the

principle of forfeiture by misconduct, although the tests for

determining whether there is a forfeiture have varied. See, e.g.,

United States v. Aguiar, 975 F.2d 45, 47 (2d Cir. 1992); United

States v. Potamitis, 739 F.2d 784, 789 (2d Cir.), cert. denied, 469

U.S. 918 (1984); Steele v. Taylor, 684 F.2d 1193, 1199 (6th Cir.

1982), cert. denied, 460 U.S. 1053 (1983); United States v. Balano,

618 F.2d 624, 629 (10th Cir. 1979), cert. denied, 449 U.S. 840

(1980); United States v. Carlson, 547 F.2d 1346, 1358-59 (8th

Cir.), cert. denied, 431 U.S. 914 (1977). The foregoing cases apply

a preponderance of the evidence standard. Contra United States v.

Thevis, 665 F.2d 616, 631 (5th Cir.) (clear and convincing

standard), cert. denied, 459 U.S. 825 (1982). The usual Rule 104(a)

preponderance of the evidence standard has been adopted in light of

the behavior the new Rule 804(b)(6) seeks to discourage.

GAP Report on Rule 804(b)(5). The words "Transferred to Rule 807"

were substituted for "Abrogated."

GAP Report on Rule 804(b)(6). The title of the rule was changed

to "Forfeiture by wrongdoing." The word "who" in line 24 was

changed to "that" to indicate that the rule is potentially

applicable against the government. Two sentences were added to the

first paragraph of the committee note to clarify that the

wrongdoing need not be criminal in nature, and to indicate the

rule's potential applicability to the government. The word

"forfeiture" was substituted for "waiver" in the note.

AMENDMENT BY PUBLIC LAW

1988 - Subd. (a)(5). Pub. L. 100-690 substituted "subdivision"

for "subdivisions".

1975 - Pub. L. 94-149, Sec. 1(12), substituted a semicolon for

the colon in catchline.

Subd. (b)(3). Pub. L. 94-149, Sec. 1(13), substituted

"admissible" for "admissable".

-End-

-CITE-

28 USC APPENDIX Rule 805 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VIII. HEARSAY

-HEAD-

Rule 805. Hearsay Within Hearsay

-STATUTE-

Hearsay included within hearsay is not excluded under the hearsay

rule if each part of the combined statements conforms with an

exception to the hearsay rule provided in these rules.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1943.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

On principle it scarcely seems open to doubt that the hearsay

rule should not call for exclusion of a hearsay statement which

includes a further hearsay statement when both conform to the

requirements of a hearsay exception. Thus a hospital record might

contain an entry of the patient's age based on information

furnished by his wife. The hospital record would qualify as a

regular entry except that the person who furnished the information

was not acting in the routine of the business. However, her

statement independently qualifies as a statement of pedigree (if

she is unavailable) or as a statement made for purposes of

diagnosis or treatment, and hence each link in the chain falls

under sufficient assurances. Or, further to illustrate, a dying

declaration may incorporate a declaration against interest by

another declarant. See McCormick Sec. 290, p. 611.

-End-

-CITE-

28 USC APPENDIX Rule 806 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VIII. HEARSAY

-HEAD-

Rule 806. Attacking and Supporting Credibility of Declarant

-STATUTE-

When a hearsay statement, or a statement defined in Rule

801(d)(2)(C), (D), or (E), has been admitted in evidence, the

credibility of the declarant may be attacked, and if attacked may

be supported, by any evidence which would be admissible for those

purposes if declarant had testified as a witness. Evidence of a

statement or conduct by the declarant at any time, inconsistent

with the declarant's hearsay statement, is not subject to any

requirement that the declarant may have been afforded an

opportunity to deny or explain. If the party against whom a hearsay

statement has been admitted calls the declarant as a witness, the

party is entitled to examine the declarant on the statement as if

under cross-examination.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1943; Mar. 2, 1987,

eff. Oct. 1, 1987; Apr. 11, 1997, eff. Dec. 1, 1997.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The declarant of a hearsay statement which is admitted in

evidence is in effect a witness. His credibility should in fairness

be subject to impeachment and support as though he had in fact

testified. See Rules 608 and 609. There are however, some special

aspects of the impeaching of a hearsay declarant which require

consideration. These special aspects center upon impeachment by

inconsistent statement, arise from factual differences which exist

between the use of hearsay and an actual witness and also between

various kinds of hearsay, and involve the question of applying to

declarants the general rule disallowing evidence of an inconsistent

statement to impeach a witness unless he is afforded an opportunity

to deny or explain. See Rule 613(b).

The principle difference between using hearsay and an actual

witness is that the inconsistent statement will in the case of the

witness almost inevitably of necessity in the nature of things be a

prior statement, which it is entirely possible and feasible to call

to his attention, while in the case of hearsay the inconsistent

statement may well be a subsequent one, which practically precludes

calling it to the attention of the declarant. The result of

insisting upon observation of this impossible requirement in the

hearsay situation is to deny the opponent, already barred from

cross-examination, any benefit of this important technique of

impeachment. The writers favor allowing the subsequent statement.

McCormick Sec. 37, p. 69; 3 Wigmore Sec. 1033. The cases, however,

are divided. Cases allowing the impeachment include People v.

Collup, 27 Cal.2d 829, 167 P.2d 714 (1946); People v. Rosoto, 58

Cal.2d 304, 23 Cal.Rptr. 779, 373 P.2d 867 (1962); Carver v. United

States, 164 U.S. 694, 17 S.Ct. 228, 41 L.Ed. 602 (1897). Contra,

Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409

(1895); People v. Hines, 284 N.Y. 93, 29 N.E.2d 483 (1940). The

force of Mattox, where the hearsay was the former testimony of a

deceased witness and the denial of use of a subsequent inconsistent

statement was upheld, is much diminished by Carver, where the

hearsay was a dying declaration and denial of use of a subsequent

inconsistent statement resulted in reversal. The difference in the

particular brand of hearsay seems unimportant when the inconsistent

statement is a subsequent one. True, the opponent is not totally

deprived of cross-examination when the hearsay is former testimony

or a deposition but he is deprived of cross-examining on the

statement or along lines suggested by it. Mr. Justice Shiras, with

two justices joining him, dissented vigorously in Mattox.

When the impeaching statement was made prior to the hearsay

statement, differences in the kinds of hearsay appear which

arguably may justify differences in treatment. If the hearsay

consisted of a simple statement by the witness, e.g. a dying

declaration or a declaration against interest, the feasibility of

affording him an opportunity to deny or explain encounters the same

practical impossibility as where the statement is a subsequent one,

just discussed, although here the impossibility arises from the

total absence of anything resembling a hearing at which the matter

could be put to him. The courts by a large majority have ruled in

favor of allowing the statement to be used under these

circumstances. McCormick Sec. 37, p. 69; 3 Wigmore Sec. 1033. If,

however, the hearsay consists of former testimony or a deposition,

the possibility of calling the prior statement to the attention of

the witness or deponent is not ruled out, since the opportunity to

cross-examine was available. It might thus be concluded that with

former testimony or depositions the conventional foundation should

be insisted upon. Most of the cases involve depositions, and

Wigmore describes them as divided. 3 Wigmore Sec. 1031. Deposition

procedures at best are cumbersome and expensive, and to require the

laying of the foundation may impose an undue burden. Under the

federal practice, there is no way of knowing with certainty at the

time of taking a deposition whether it is merely for discovery or

will ultimately end up in evidence. With respect to both former

testimony and depositions the possibility exists that knowledge of

the statement might not be acquired until after the time of the

cross-examination. Moreover, the expanded admissibility of former

testimony and depositions under Rule 804(b)(1) calls for a

correspondingly expanded approach to impeachment. The rule

dispenses with the requirement in all hearsay situations, which is

readily administered and best calculated to lead to fair results.

Notice should be taken that Rule 26(f) of the Federal Rules of

Civil Procedure, as originally submitted by the Advisory Committee,

ended with the following:

"* * * and, without having first called them to the deponent's

attention, may show statements contradictory thereto made at any

time by the deponent."

This language did not appear in the rule as promulgated in

December, 1937. See 4 Moore's Federal Practice ¶¶

26.01[9], 26.35 (2d ed. 1967). In 1951, Nebraska adopted a

provision strongly resembling the one stricken from the federal

rule:

"Any party may impeach any adverse deponent by self-contradiction

without having laid foundation for such impeachment at the time

such deposition was taken." R.S.Neb. Sec. 25-1267.07.

For similar provisions, see Uniform Rule 65; California Evidence

Code Sec. 1202; Kansas Code of Civil Procedure Sec. 60-462; New

Jersey Evidence Rule 65.

The provision for cross-examination of a declarant upon his

hearsay statement is a corollary of general principles of

cross-examination. A similar provision is found in California

Evidence Code Sec. 1203.

NOTES OF COMMITTEE ON THE JUDICIARY, SENATE REPORT NO. 93-1277

Rule 906, as passed by the House and as proposed by the Supreme

Court provides that whenever a hearsay statement is admitted, the

credibility of the declarant of the statement may be attacked, and

if attacked may be supported, by any evidence which would be

admissible for those purposes if the declarant had testified as a

witness. Rule 801 defines what is a hearsay statement. While

statements by a person authorized by a party-opponent to make a

statement concerning the subject, by the party-opponent's agent or

by a coconspirator of a party - see rule 801(d)(2)(c), (d) and (e)

- are traditionally defined as exceptions to the hearsay rule, rule

801 defines such admission by a party-opponent as statements which

are not hearsay. Consequently, rule 806 by referring exclusively to

the admission of hearsay statements, does not appear to allow the

credibility of the declarant to be attacked when the declarant is a

coconspirator, agent or authorized spokesman. The committee is of

the view that such statements should open the declarant to attacks

on his credibility. Indeed, the reason such statements are excluded

from the operation of rule 806 is likely attributable to the

drafting technique used to codify the hearsay rule, viz some

statements, instead of being referred to as exceptions to the

hearsay rule, are defined as statements which are not hearsay. The

phrase "or a statement defined in rule 801(d)(2)(c), (d) and (e)"

is added to the rule in order to subject the declarant of such

statements, like the declarant of hearsay statements, to attacks on

his credibility. [The committee considered it unnecessary to

include statements contained in rule 801(d)(2)(A) and (B) - the

statement by the party-opponent himself or the statement of which

he has manifested his adoption - because the credibility of the

party-opponent is always subject to an attack on his credibility].

NOTES OF CONFERENCE COMMITTEE, HOUSE REPORT NO. 93-1597

The Senate amendment permits an attack upon the credibility of

the declarant of a statement if the statement is one by a person

authorized by a party-opponent to make a statement concerning the

subject, one by an agent of a party-opponent, or one by a

coconspirator of the party-opponent, as these statements are

defined in Rules 801(d)(2)(C), (D) and (E). The House bill has no

such provision.

The Conference adopts the Senate amendment. The Senate amendment

conforms the rule to present practice.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1997 AMENDMENT

The amendment is technical. No substantive change is intended.

GAP Report. Restylization changes in the rule were eliminated.

-End-

-CITE-

28 USC APPENDIX Rule 807 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE VIII. HEARSAY

-HEAD-

Rule 807. Residual Exception

-STATUTE-

A statement not specifically covered by Rule 803 or 804 but

having equivalent circumstantial guarantees of trustworthiness, is

not excluded by the hearsay rule, if the court determines that (A)

the statement is offered as evidence of a material fact; (B) the

statement is more probative on the point for which it is offered

than any other evidence which the proponent can procure through

reasonable efforts; and (C) the general purposes of these rules and

the interests of justice will best be served by admission of the

statement into evidence. However, a statement may not be admitted

under this exception unless the proponent of it makes known to the

adverse party sufficiently in advance of the trial or hearing to

provide the adverse party with a fair opportunity to prepare to

meet it, the proponent's intention to offer the statement and the

particulars of it, including the name and address of the declarant.

-SOURCE-

(Added Apr. 11, 1997, eff. Dec. 1, 1997.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES

The contents of Rule 803(24) and Rule 804(b)(5) have been

combined and transferred to a new Rule 807. This was done to

facilitate additions to Rules 803 and 804. No change in meaning is

intended.

GAP Report on Rule 807. Restylization changes were eliminated.

-End-

-CITE-

28 USC APPENDIX ARTICLE IX. AUTHENTICATION AND

IDENTIFICATION 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

-HEAD-

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

-End-

-CITE-

28 USC APPENDIX Rule 901 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

-HEAD-

Rule 901. Requirement of Authentication or Identification

-STATUTE-

(a) General provision. - The requirement of authentication or

identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the

matter in question is what its proponent claims.

(b) Illustrations. - By way of illustration only, and not by way

of limitation, the following are examples of authentication or

identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. - Testimony that a

matter is what it is claimed to be.

(2) Nonexpert opinion on handwriting. - Nonexpert opinion as to

the genuineness of handwriting, based upon familiarity not

acquired for purposes of the litigation.

(3) Comparison by trier or expert witness. - Comparison by the

trier of fact or by expert witnesses with specimens which have

been authenticated.

(4) Distinctive characteristics and the like. - Appearance,

contents, substance, internal patterns, or other distinctive

characteristics, taken in conjunction with circumstances.

(5) Voice identification. - Identification of a voice, whether

heard firsthand or through mechanical or electronic transmission

or recording, by opinion based upon hearing the voice at any time

under circumstances connecting it with the alleged speaker.

(6) Telephone conversations. - Telephone conversations, by

evidence that a call was made to the number assigned at the time

by the telephone company to a particular person or business, if

(A) in the case of a person, circumstances, including

self-identification, show the person answering to be the one

called, or (B) in the case of a business, the call was made to a

place of business and the conversation related to business

reasonably transacted over the telephone.

(7) Public records or reports. - Evidence that a writing

authorized by law to be recorded or filed and in fact recorded or

filed in a public office, or a purported public record, report,

statement, or data compilation, in any form, is from the public

office where items of this nature are kept.

(8) Ancient documents or data compilation. - Evidence that a

document or data compilation, in any form, (A) is in such

condition as to create no suspicion concerning its authenticity,

(B) was in a place where it, if authentic, would likely be, and

(C) has been in existence 20 years or more at the time it is

offered.

(9) Process or system. - Evidence describing a process or

system used to produce a result and showing that the process or

system produces an accurate result.

(10) Methods provided by statute or rule. - Any method of

authentication or identification provided by Act of Congress or

by other rules prescribed by the Supreme Court pursuant to

statutory authority.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1943.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Subdivision (a). Authentication and identification represent a

special aspect of relevancy. Michael and Adler, Real Proof, 5

Vand.L.Rev. 344, 362 (1952); McCormick Secs. 179, 185; Morgan,

Basic Problems of Evidence 378. (1962). Thus a telephone

conversation may be irrelevant because on an unrelated topic or

because the speaker is not identified. The latter aspect is the one

here involved. Wigmore describes the need for authentication as "an

inherent logical necessity." 7 Wigmore Sec. 2129, p. 564.

This requirement of showing authenticity or identity fails in the

category of relevancy dependent upon fulfillment of a condition of

fact and is governed by the procedure set forth in Rule 104(b).

The common law approach to authentication of documents has been

criticized as an "attitude of agnosticism," McCormick, Cases on

Evidence 388, n. 4 (3rd ed. 1956), as one which "departs sharply

from men's customs in ordinary affairs," and as presenting only a

slight obstacle to the introduction of forgeries in comparison to

the time and expense devoted to proving genuine writings which

correctly show their origin on their face, McCormick Sec. 185, pp.

395, 396. Today, such available procedures as requests to admit and

pretrial conference afford the means of eliminating much of the

need for authentication or identification. Also, significant

inroads upon the traditional insistence on authentication and

identification have been made by accepting as at least prima facie

genuine items of the kind treated in Rule 902, infra. However, the

need for suitable methods of proof still remains, since criminal

cases pose their own obstacles to the use of preliminary

procedures, unforeseen contingencies may arise, and cases of

genuine controversy will still occur.

Subdivision (b). The treatment of authentication and

identification draws largely upon the experience embodied in the

common law and in statutes to furnish illustrative applications of

the general principle set forth in subdivision (a). The examples

are not intended as an exclusive enumeration of allowable methods

but are meant to guide and suggest, leaving room for growth and

development in this area of the law.

The examples relate for the most part to documents, with some

attention given to voice communications and computer print-outs. As

Wigmore noted, no special rules have been developed for

authenticating chattels. Wigmore, Code of Evidence Sec. 2086 (3rd

ed. 1942).

It should be observed that compliance with requirements of

authentication or identification by no means assures admission of

an item into evidence, as other bars, hearsay for example, may

remain.

Example (1). Example (1) contemplates a broad spectrum ranging

from testimony of a witness who was present at the signing of a

document to testimony establishing narcotics as taken from an

accused and accounting for custody through the period until trial,

including laboratory analysis. See California Evidence Code Sec.

1413, eyewitness to signing.

Example (2). Example (2) states conventional doctrine as to lay

identification of handwriting, which recognizes that a sufficient

familiarity with the handwriting of another person may be acquired

by seeing him write, by exchanging correspondence, or by other

means, to afford a basis for identifying it on subsequent

occasions. McCormick Sec. 189. See also California Evidence Code

Sec. 1416. Testimony based upon familiarity acquired for purposes

of the litigation is reserved to the expert under the example which

follows.

Example (3). The history of common law restrictions upon the

technique of proving or disproving the genuineness of a disputed

specimen of handwriting through comparison with a genuine specimen,

by either the testimony of expert witnesses or direct viewing by

the triers themselves, is detailed in 7 Wigmore Secs. 1991-1994. In

breaking away, the English Common Law Procedure Act of 1854, 17 and

18 Viet., c. 125, Sec. 27, cautiously allowed expert or trier to

use exemplars "proved to the satisfaction of the judge to be

genuine" for purposes of comparison. The language found its way

into numerous statutes in this country, e.g., California Evidence

Code Secs. 1417, 1418. While explainable as a measure of prudence

in the process of breaking with precedent in the handwriting

situation, the reservation to the judge of the question of the

genuineness of exemplars and the imposition of an unusually high

standard of persuasion are at variance with the general treatment

of relevancy which depends upon fulfillment of a condition of fact.

Rule 104(b). No similar attitude is found in other comparison

situations, e.g., ballistics comparison by jury, as in Evans v.

Commonwealth, 230 Ky. 411, 19 S.W.2d 1091 (1929), or by experts,

Annot. 26 A.L.R.2d 892, and no reason appears for its continued

existence in handwriting cases. Consequently Example (3) sets no

higher standard for handwriting specimens and treats all comparison

situations alike, to be governed by Rule 104(b). This approach is

consistent with 28 U.S.C. Sec. 1731: "The admitted or proved

handwriting of any person shall be admissible, for purposes of

comparison, to determine genuineness of other handwriting

attributed to such person."

Precedent supports the acceptance of visual comparison as

sufficiently satisfying preliminary authentication requirements for

admission in evidence. Brandon v. Collins, 267 F.2d 731 (2d Cir.

1959); Wausau Sulphate Fibre Co. v. Commissioner of Internal

Revenue, 61 F.2d 879 (7th Cir. 1932); Desimone v. United States,

227 F.2d 864 (9th Cir. 1955).

Example (4). The characteristics of the offered item itself,

considered in the light of circumstances, afford authentication

techniques in great variety. Thus a document or telephone

conversation may be shown to have emanated from a particular person

by virtue of its disclosing knowledge of facts known peculiarly to

him; Globe Automatic Sprinkler Co. v. Braniff, 89 Okl. 105, 214 P.

127 (1923); California Evidence Code Sec. 1421; similarly, a letter

may be authenticated by content and circumstances indicating it was

in reply to a duly authenticated one. McCormick Sec. 192;

California Evidence Code Sec. 1420. Language patterns may indicate

authenticity or its opposite. Magnuson v. State, 187 Wis. 122, 203

N.W. 749 (1925); Arens and Meadow, Psycholinguistics and the

Confession Dilemma, 56 Colum.L.Rev. 19 (1956).

Example (5). Since aural voice identification is not a subject of

expert testimony, the requisite familiarity may be acquired either

before or after the particular speaking which is the subject of the

identification, in this respect resembling visual identification of

a person rather than identification of handwriting. Cf. Example

(2), supra, People v. Nichols, 378 Ill. 487, 38 N.E.2d 766 (1942);

McGuire v. State, 200 Md. 601, 92 A.2d 582 (1952); State v. McGee,

336 Mo. 1082, 83 S.W.2d 98 (1935).

Example (6). The cases are in agreement that a mere assertion of

his identity by a person talking on the telephone is not sufficient

evidence of the authenticity of the conversation and that

additional evidence of his identity is required. The additional

evidence need not fall in any set pattern. Thus the content of his

statements or the reply technique, under Example (4), supra, or

voice identification under Example (5), may furnish the necessary

foundation. Outgoing calls made by the witness involve additional

factors bearing upon authenticity. The calling of a number assigned

by the telephone company reasonably supports the assumption that

the listing is correct and that the number is the one reached. If

the number is that of a place of business, the mass of authority

allows an ensuing conversation if it relates to business reasonably

transacted over the telephone, on the theory that the maintenance

of the telephone connection is an invitation to do business without

further identification. Matton v. Hoover Co., 350 Mo. 506, 166

S.W.2d 557 (1942); City of Pawhuska v. Crutchfield, 147 Okl. 4. 293

P. 1095 (1930); Zurich General Acc. & Liability Ins. Co. v. Baum,

159 Va. 404, 165 S.E. 518 (1932). Otherwise, some additional

circumstance of identification of the speaker is required. The

authorities divide on the question whether the self-identifying

statement of the person answering suffices. Example (6) answers in

the affirmative on the assumption that usual conduct respecting

telephone calls furnish adequate assurances of regularity, bearing

in mind that the entire matter is open to exploration before the

trier of fact. In general, see McCormick Sec. 193; 7 Wigmore Sec.

2155; Annot., 71 A.L.R. 5, 105 id. 326.

Example (7). Public records are regularly authenticated by proof

of custody, without more. McCormick Sec. 191; 7 Wigmore Secs. 2158,

2159. The example extends the principle to include data stored in

computers and similar methods, of which increasing use in the

public records area may be expected. See California Evidence Code

Secs. 1532, 1600.

Example (8). The familiar ancient document rule of the common law

is extended to include data stored electronically or by other

similar means. Since the importance of appearance diminishes in

this situation, the importance of custody or place where found

increases correspondingly. This expansion is necessary in view of

the widespread use of methods of storing data in forms other than

conventional written records.

Any time period selected is bound to be arbitrary. The common law

period of 30 years is here reduced to 20 years, with some shift of

emphasis from the probable unavailability of witnesses to the

unlikeliness of a still viable fraud after the lapse of time. The

shorter period is specified in the English Evidence Act of 1938, 1

& 2 Geo. 6, c. 28, and in Oregon R.S. 1963, Sec. 41.360(34). See

also the numerous statutes prescribing periods of less than 30

years in the case of recorded documents. 7 Wigmore Sec. 2143.

The application of Example (8) is not subject to any limitation

to title documents or to any requirement that possession, in the

case of a title document, has been consistent with the document.

See McCormick Sec. 190.

Example (9). Example (9) is designed for situations in which the

accuracy of a result is dependent upon a process or system which

produces it. X-rays afford a familiar instance. Among more recent

developments is the computer, as to which see Transport Indemnity

Co. v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965); State v. Veres, 7

Ariz.App. 117, 436 P.2d 629 (1968); Merrick v. United States Rubber

Co., 7 Ariz.App. 433, 440 P.2d 314 (1968); Freed, Computer

Print-Outs as Evidence, 16 Am.Jur. Proof of Facts 273; Symposium,

Law and Computers in the Mid-Sixties, ALI-ABA (1966); 37 Albany

L.Rev. 61 (1967). Example (9) does not, of course, foreclose taking

judicial notice of the accuracy of the process or system.

Example (10). The example makes clear that methods of

authentication provided by Act of Congress and by the Rules of

Civil and Criminal Procedure or by Bankruptcy Rules are not

intended to be superseded. Illustrative are the provisions for

authentication of official records in Civil Procedure Rule 44 and

Criminal Procedure Rule 27, for authentication of records of

proceedings by court reporters in 28 U.S.C. Sec. 753(b) and Civil

Procedure Rule 80(c), and for authentication of depositions in

Civil Procedure Rule 30(f).

-End-

-CITE-

28 USC APPENDIX Rule 902 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

-HEAD-

Rule 902. Self-authentication

-STATUTE-

Extrinsic evidence of authenticity as a condition precedent to

admissibility is not required with respect to the following:

(1) Domestic public documents under seal. - A document bearing

a seal purporting to be that of the United States, or of any

State, district, Commonwealth, territory, or insular possession

thereof, or the Panama Canal Zone, or the Trust Territory of the

Pacific Islands, or of a political subdivision, department,

officer, or agency thereof, and a signature purporting to be an

attestation or execution.

(2) Domestic public documents not under seal. - A document

purporting to bear the signature in the official capacity of an

officer or employee of any entity included in paragraph (1)

hereof, having no seal, if a public officer having a seal and

having official duties in the district or political subdivision

of the officer or employee certifies under seal that the signer

has the official capacity and that the signature is genuine.

(3) Foreign public documents. - A document purporting to be

executed or attested in an official capacity by a person

authorized by the laws of a foreign country to make the execution

or attestation, and accompanied by a final certification as to

the genuineness of the signature and official position (A) of the

executing or attesting person, or (B) of any foreign official

whose certificate of genuineness of signature and official

position relates to the execution or attestation or is in a chain

of certificates of genuineness of signature and official position

relating to the execution or attestation. A final certification

may be made by a secretary of an embassy or legation, consul

general, consul, vice consul, or consular agent of the United

States, or a diplomatic or consular official of the foreign

country assigned or accredited to the United States. If

reasonable opportunity has been given to all parties to

investigate the authenticity and accuracy of official documents,

the court may, for good cause shown, order that they be treated

as presumptively authentic without final certification or permit

them to be evidenced by an attested summary with or without final

certification.

(4) Certified copies of public records. - A copy of an official

record or report or entry therein, or of a document authorized by

law to be recorded or filed and actually recorded or filed in a

public office, including data compilations in any form, certified

as correct by the custodian or other person authorized to make

the certification, by certificate complying with paragraph (1),

(2), or (3) of this rule or complying with any Act of Congress or

rule prescribed by the Supreme Court pursuant to statutory

authority.

(5) Official publications. - Books, pamphlets, or other

publications purporting to be issued by public authority.

(6) Newspapers and periodicals. - Printed materials purporting

to be newspapers or periodicals.

(7) Trade inscriptions and the like. - Inscriptions, signs,

tags, or labels purporting to have been affixed in the course of

business and indicating ownership, control, or origin.

(8) Acknowledged documents. - Documents accompanied by a

certificate of acknowledgment executed in the manner provided by

law by a notary public or other officer authorized by law to take

acknowledgments.

(9) Commercial paper and related documents. - Commercial paper,

signatures thereon, and documents relating thereto to the extent

provided by general commercial law.

(10) Presumptions under Acts of Congress. - Any signature,

document, or other matter declared by Act of Congress to be

presumptively or prima facie genuine or authentic.

(11) Certified domestic records of regularly conducted

activity. - The original or a duplicate of a domestic record of

regularly conducted activity that would be admissible under Rule

803(6) if accompanied by a written declaration of its custodian

or other qualified person, in a manner complying with any Act of

Congress or rule prescribed by the Supreme Court pursuant to

statutory authority, certifying that the record -

(A) was made at or near the time of the occurrence of the

matters set forth by, or from information transmitted by, a

person with knowledge of those matters;

(B) was kept in the course of the regularly conducted

activity; and

(C) was made by the regularly conducted activity as a regular

practice.

A party intending to offer a record into evidence under this

paragraph must provide written notice of that intention to all

adverse parties, and must make the record and declaration

available for inspection sufficiently in advance of their offer

into evidence to provide an adverse party with a fair opportunity

to challenge them.

(12) Certified foreign records of regularly conducted activity.

- In a civil case, the original or a duplicate of a foreign

record of regularly conducted activity that would be admissible

under Rule 803(6) if accompanied by a written declaration by its

custodian or other qualified person certifying that the record -

(A) was made at or near the time of the occurrence of the

matters set forth by, or from information transmitted by, a

person with knowledge of those matters;

(B) was kept in the course of the regularly conducted

activity; and

(C) was made by the regularly conducted activity as a regular

practice.

The declaration must be signed in a manner that, if falsely made,

would subject the maker to criminal penalty under the laws of the

country where the declaration is signed. A party intending to

offer a record into evidence under this paragraph must provide

written notice of that intention to all adverse parties, and must

make the record and declaration available for inspection

sufficiently in advance of their offer into evidence to provide

an adverse party with a fair opportunity to challenge them.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1944; Mar. 2, 1987,

eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Apr. 17, 2000,

eff. Dec. 1, 2000.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Case law and statutes have, over the years, developed a

substantial body of instances in which authenticity is taken as

sufficiently established for purposes of admissibility without

extrinsic evidence to that effect, sometimes for reasons of policy

but perhaps more often because practical considerations reduce the

possibility of unauthenticity to a very small dimension. The

present rule collects and incorporates these situations, in some

instances expanding them to occupy a larger area which their

underlying considerations justify. In no instance is the opposite

party foreclosed from disputing authenticity.

Paragraph (1). The acceptance of documents bearing a public seal

and signature, most often encountered in practice in the form of

acknowledgments or certificates authenticating copies of public

records, is actually of broad application. Whether theoretically

based in whole or in part upon judicial notice, the practical

underlying considerations are that forgery is a crime and detection

is fairly easy and certain. 7 Wigmore Sec. 2161, p. 638; California

Evidence Code Sec. 1452. More than 50 provisions for judicial

notice of official seals are contained in the United States Code.

Paragraph (2). While statutes are found which raise a presumption

of genuineness of purported official signatures in the absence of

an official seal, 7 Wigmore Sec. 2167; California Evidence Code

Sec. 1453, the greater ease of effecting a forgery under these

circumstances is apparent. Hence this paragraph of the rule calls

for authentication by an officer who has a seal. Notarial acts by

members of the armed forces and other special situations are

covered in paragraph (10).

Paragraph (3) provides a method for extending the presumption of

authenticity to foreign official documents by a procedure of

certification. It is derived from Rule 44(a)(2) of the Rules of

Civil Procedure but is broader in applying to public documents

rather than being limited to public records.

Paragraph (4). The common law and innumerable statutes have

recognized the procedure of authenticating copies of public records

by certificate. The certificate qualifies as a public document,

receivable as authentic when in conformity with paragraph (1), (2),

or (3). Rule 44(a) of the Rules of Civil Procedure and Rule 27 of

the Rules of Criminal Procedure have provided authentication

procedures of this nature for both domestic and foreign public

records. It will be observed that the certification procedure here

provided extends only to public records, reports, and recorded

documents, all including data compilations, and does not apply to

public documents generally. Hence documents provable when presented

in original form under paragraphs (1), (2), or (3) may not be

provable by certified copy under paragraph (4).

Paragraph (5). Dispensing with preliminary proof of the

genuineness of purportedly official publications, most commonly

encountered in connection with statutes, court reports, rules, and

regulations, has been greatly enlarged by statutes and decisions. 5

Wigmore Sec. 1684. Paragraph (5), it will be noted, does not confer

admissibility upon all official publications; it merely provides a

means whereby their authenticity may be taken as established for

purposes of admissibility. Rule 44(a) of the Rules of Civil

Procedure has been to the same effect.

Paragraph (6). The likelihood of forgery of newspapers or

periodicals is slight indeed. Hence no danger is apparent in

receiving them. Establishing the authenticity of the publication

may, of course, leave still open questions of authority and

responsibility for items therein contained. See 7 Wigmore Sec.

2150. Cf. 39 U.S.C. Sec. 4005(b), public advertisement prima facie

evidence of agency of person named, in postal fraud order

proceeding; Canadian Uniform Evidence Act, Draft of 1936, printed

copy of newspaper prima facie evidence that notices or

advertisements were authorized.

Paragraph (7). Several factors justify dispensing with

preliminary proof of genuineness of commercial and mercantile

labels and the like. The risk of forgery is minimal. Trademark

infringement involves serious penalties. Great efforts are devoted

to inducing the public to buy in reliance on brand names, and

substantial protection is given them. Hence the fairness of this

treatment finds recognition in the cases. Curtiss Candy Co. v.

Johnson, 163 Miss. 426, 141 So. 762 (1932), Baby Ruth candy bar;

Doyle v. Continental Baking Co., 262 Mass. 516, 160 N.E. 325

(1928), loaf of bread; Weiner v. Mager & Throne, Inc., 167 Misc.

338, 3 N.Y.S.2d 918 (1938), same. And see W.Va.Code 1966, Sec.

47-3-5, trade-mark on bottle prima facie evidence of ownership.

Contra, Keegan v. Green Giant Co., 150 Me. 283, 110 A.2d 599

(1954); Murphy v. Campbell Soup Co., 62 F.2d 564 (1st Cir. 1933).

Cattle brands have received similar acceptance in the western

states. Rev.Code Mont.1947, Sec. 46-606; State v. Wolfley, 75 Kan.

406, 89 P. 1046 (1907); Annot., 11 L.R.A. (N.S.) 87. Inscriptions

on trains and vehicles are held to be prima facie evidence of

ownership or control. Pittsburgh, Ft. W. & C. Ry. v. Callaghan, 157

Ill. 406, 41 N.E. 909 (1895); 9 Wigmore Sec. 2510a. See also the

provision of 19 U.S.C. Sec. 1615(2) that marks, labels, brands, or

stamps indicating foreign origin are prima facie evidence of

foreign origin of merchandise.

Paragraph (8). In virtually every state, acknowledged title

documents are receivable in evidence without further proof.

Statutes are collected in 5 Wigmore Sec. 1676. If this

authentication suffices for documents of the importance of those

affecting titles, logic scarcely permits denying this method when

other kinds of documents are involved. Instances of broadly

inclusive statutes are California Evidence Code Sec. 1451 and

N.Y.CPLR 4538, McKinney's Consol. Laws 1963.

Paragraph (9). Issues of the authenticity of commercial paper in

federal courts will usually arise in diversity cases, will involve

an element of a cause of action or defense, and with respect to

presumptions and burden of proof will be controlled by Erie

Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188

(1938). Rule 302, supra. There may, however, be questions of

authenticity involving lesser segments of a case or the case may be

one governed by federal common law. Clearfield Trust Co. v. United

States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). Cf. United

States v. Yazell, 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404

(1966). In these situations, resort to the useful authentication

provisions of the Uniform Commercial Code is provided for. While

the phrasing is in terms of "general commercial law," in order to

avoid the potential complication inherent in borrowing local

statutes, today one would have difficulty in determining the

general commercial law without referring to the Code. See Williams

v. Walker-Thomas-Furniture Co., 121 U.S.App.D.C. 315, 350 F.2d 445

(1965). Pertinent Code provisions are sections 1-202, 3-307, and

3-510, dealing with third-party documents, signatures on negotiable

instruments, protests, and statements of dishonor.

Paragraph (10). The paragraph continues in effect dispensations

with preliminary proof of genuineness provided in various Acts of

Congress. See, for example, 10 U.S.C. Sec. 936, signature, without

seal, together with title, prima facie evidence of authenticity of

acts of certain military personnel who are given notarial power; 15

U.S.C. Sec. 77f(a), signature on SEC registration presumed genuine;

26 U.S.C. Sec. 6064, signature to tax return prima facie genuine.

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

Rule 902(8) as submitted by the Court referred to certificates of

acknowledgment "under the hand and seal of" a notary public or

other officer authorized by law to take acknowledgments. The

Committee amended the Rule to eliminate the requirement, believed

to be inconsistent with the law in some States, that a notary

public must affix a seal to a document acknowledged before him. As

amended the Rule merely requires that the document be executed in

the manner prescribed by State law.

The Committee approved Rule 902(9) as submitted by the Court.

With respect to the meaning of the phrase "general commercial law",

the Committee intends that the Uniform Commercial Code, which has

been adopted in virtually every State, will be followed generally,

but that federal commercial law will apply where federal commercial

paper is involved. See Clearfield Trust Co. v. United States, 318

U.S. 363 (1943). Further, in those instances in which the issues

are governed by Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), State

law will apply irrespective of whether it is the Uniform Commercial

Code.

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

These two sentences were inadvertently eliminated from the 1987

amendments. The amendment is technical. No substantive change is

intended.

COMMITTEE NOTES ON RULES - 2000 AMENDMENT

The amendment adds two new paragraphs to the rule on

self-authentication. It sets forth a procedure by which parties can

authenticate certain records of regularly conducted activity, other

than through the testimony of a foundation witness. See the

amendment to Rule 803(6). 18 U.S.C. Sec. 3505 currently provides a

means for certifying foreign records of regularly conducted

activity in criminal cases, and this amendment is intended to

establish a similar procedure for domestic records, and for foreign

records offered in civil cases.

A declaration that satisfies 28 U.S.C. Sec. 1746 would satisfy

the declaration requirement of Rule 902(11), as would any

comparable certification under oath.

The notice requirement in Rules 902(11) and (12) is intended to

give the opponent of the evidence a full opportunity to test the

adequacy of the foundation set forth in the declaration.

GAP Report - Proposed Amendment to Rule 902. The Committee made

the following changes to the published draft of the proposed

amendment to Evidence Rule 902:

1. Minor stylistic changes were made in the text, in accordance

with suggestions of the Style Subcommittee of the Standing

Committee on Rules of Practice and Procedure.

2. The phrase "in a manner complying with any Act of Congress or

rule prescribed by the Supreme Court pursuant to statutory

authority" was added to proposed Rule 902(11), to provide

consistency with Evidence Rule 902(4). The Committee Note was

amended to accord with this textual change.

3. Minor stylistic changes were made in the text to provide a

uniform construction of the terms "declaration" and "certifying."

4. The notice provisions in the text were revised to clarify that

the proponent must make both the declaration and the underlying

record available for inspection.

-TRANS-

TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS

For termination of Trust Territory of the Pacific Islands, see

note set out preceding section 1681 of Title 48, Territories and

Insular Possessions.

-End-

-CITE-

28 USC APPENDIX Rule 903 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

-HEAD-

Rule 903. Subscribing Witness' Testimony Unnecessary

-STATUTE-

The testimony of a subscribing witness is not necessary to

authenticate a writing unless required by the laws of the

jurisdiction whose laws govern the validity of the writing.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1945.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The common law required that attesting witnesses be produced or

accounted for. Today the requirement has generally been abolished

except with respect to documents which must be attested to be

valid, e.g. wills in some states. McCormick Sec. 188. Uniform Rule

71; California Evidence Code Sec. 1411; Kansas Code of Civil

Procedure Sec. 60-468; New Jersey Evidence Rule 71; New York CPLR

Rule 4537.

-End-

-CITE-

28 USC APPENDIX ARTICLE X. CONTENTS OF WRITINGS,

RECORDINGS, AND PHOTOGRAPHS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-End-

-CITE-

28 USC APPENDIX Rule 1001 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-

Rule 1001. Definitions

-STATUTE-

For purposes of this article the following definitions are

applicable:

(1) Writings and recordings. - "Writings" and "recordings"

consist of letters, words, or numbers, or their equivalent, set

down by handwriting, typewriting, printing, photostating,

photographing, magnetic impulse, mechanical or electronic

recording, or other form of data compilation.

(2) Photographs. - "Photographs" include still photographs,

X-ray films, video tapes, and motion pictures.

(3) Original. - An "original" of a writing or recording is the

writing or recording itself or any counterpart intended to have

the same effect by a person executing or issuing it. An

"original" of a photograph includes the negative or any print

therefrom. If data are stored in a computer or similar device,

any printout or other output readable by sight, shown to reflect

the data accurately, is an "original".

(4) Duplicate. - A "duplicate" is a counterpart produced by the

same impression as the original, or from the same matrix, or by

means of photography, including enlargements and miniatures, or

by mechanical or electronic re-recording, or by chemical

reproduction, or by other equivalent techniques which accurately

reproduces the original.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1945.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

In an earlier day, when discovery and other related procedures

were strictly limited, the misleading named "best evidence rule"

afforded substantial guarantees against inaccuracies and fraud by

its insistence upon production of original documents. The great

enlargement of the scope of discovery and related procedures in

recent times has measurably reduced the need for the rule.

Nevertheless important areas of usefulness persist: discovery of

documents outside the jurisdiction may require substantial outlay

of time and money; the unanticipated document may not practically

be discoverable; criminal cases have built-in limitations on

discovery. Cleary and Strong, The Best Evidence Rule: An Evaluation

in Context, 51 Iowa L.Rev. 825 (1966).

Paragraph (1). Traditionally the rule requiring the original

centered upon accumulations of data and expressions affecting legal

relations set forth in words and figures. This meant that the rule

was one essentially related to writings. Present day techniques

have expanded methods of storing data, yet the essential form which

the information ultimately assumes for usable purposes is words and

figures. Hence the considerations underlying the rule dictate its

expansion to include computers, photographic systems, and other

modern developments.

Paragraph (3). In most instances, what is an original will be

self-evident and further refinement will be unnecessary. However,

in some instances particularized definition is required. A carbon

copy of a contract executed in duplicate becomes an original, as

does a sales ticket carbon copy given to a customer. While strictly

speaking the original of a photograph might be thought to be only

the negative, practicality and common usage require that any print

from the negative be regarded as an original. Similarly,

practicality and usage confer the status of original upon any

computer printout. Transport Indemnity Co. v. Seib, 178 Neb. 253,

132 N.W.2d 871 (1965).

Paragraph (4). The definition describes "copies" produced by

methods possessing an accuracy which virtually eliminates the

possibility of error. Copies thus produced are given the status of

originals in large measure by Rule 1003, infra. Copies subsequently

produced manually, whether handwritten or typed, are not within the

definition. It should be noted that what is an original for some

purposes may be a duplicate for others. Thus a bank's microfilm

record of checks cleared is the original as a record. However, a

print offered as a copy of a check whose contents are in

controversy is a duplicate. This result is substantially consistent

with 28 U.S.C. Sec. 1732(b). Compare 26 U.S.C. Sec. 7513(c), giving

full status as originals to photographic reproductions of tax

returns and other documents, made by authority of the Secretary of

the Treasury, and 44 U.S.C. Sec. 399(a), giving original status to

photographic copies in the National Archives.

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

The Committee amended this Rule expressly to include "video

tapes" in the definition of "photographs."

-End-

-CITE-

28 USC APPENDIX Rule 1002 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-

Rule 1002. Requirement of Original

-STATUTE-

To prove the content of a writing, recording, or photograph, the

original writing, recording, or photograph is required, except as

otherwise provided in these rules or by Act of Congress.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1946.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The rule is the familiar one requiring production of the original

of a document to prove its contents, expanded to include writings,

recordings, and photographs, as defined in Rule 1001(1) and (2),

supra.

Application of the rule requires a resolution of the question

whether contents are sought to be proved. Thus an event may be

proved by nondocumentary evidence, even though a written record of

it was made. If, however, the event is sought to be proved by the

written record, the rule applies. For example, payment may be

proved without producing the written receipt which was given.

Earnings may be proved without producing books of account in which

they are entered. McCormick Sec. 198; 4 Wigmore Sec. 1245. Nor does

the rule apply to testimony that books or records have been

examined and found not to contain any reference to a designated

matter.

The assumption should not be made that the rule will come into

operation on every occasion when use is made of a photograph in

evidence. On the contrary, the rule will seldom apply to ordinary

photographs. In most instances a party wishes to introduce the item

and the question raised is the propriety of receiving it in

evidence. Cases in which an offer is made of the testimony of a

witness as to what he saw in a photograph or motion picture,

without producing the same, are most unusual. The usual course is

for a witness on the stand to identify the photograph or motion

picture as a correct representation of events which he saw or of a

scene with which he is familiar. In fact he adopts the picture as

his testimony, or, in common parlance, uses the picture to

illustrate his testimony. Under these circumstances, no effort is

made to prove the contents of the picture, and the rule is

inapplicable. Paradis, The Celluloid Witness, 37 U.Colo.L. Rev.

235, 249-251 (1965).

On occasion, however, situations arise in which contents are

sought to be proved. Copyright, defamation, and invasion of privacy

by photograph or motion picture falls in this category. Similarly

as to situations in which the picture is offered as having

independent probative value, e.g. automatic photograph of bank

robber. See People v. Doggett, 83 Cal.App.2d 405, 188 P.2d 792

(1948) photograph of defendants engaged in indecent act; Mouser and

Philbin, Photographic Evidence - Is There a Recognized Basis for

Admissibility? 8 Hastings L.J. 310 (1957). The most commonly

encountered of this latter group is of course, the X-ray, with

substantial authority calling for production of the original.

Daniels v. Iowa City, 191 Iowa 811, 183 N.W. 415 (1921); Cellamare

v. Third Acc. Transit Corp., 273 App.Div. 260, 77 N.Y.S.2d 91

(1948); Patrick & Tilman v. Matkin, 154 Okl. 232, 7 P.2d 414

(1932); Mendoza v. Rivera, 78 P.R.R. 569 (1955)

It should be noted, however, that Rule 703, supra, allows an

expert to give an opinion based on matters not in evidence, and the

present rule must be read as being limited accordingly in its

application. Hospital records which may be admitted as business

records under Rule 803(6) commonly contain reports interpreting

X-rays by the staff radiologist, who qualifies as an expert, and

these reports need not be excluded from the records by the instant

rule.

The reference to Acts of Congress is made in view of such

statutory provisions as 26 U.S.C. Sec. 7513, photographic

reproductions of tax returns and documents, made by authority of

the Secretary of the Treasury, treated as originals, and 44 U.S.C.

Sec. 399(a), photographic copies in National Archives treated as

originals.

-End-

-CITE-

28 USC APPENDIX Rule 1003 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-

Rule 1003. Admissibility of Duplicates

-STATUTE-

A duplicate is admissible to the same extent as an original

unless (1) a genuine question is raised as to the authenticity of

the original or (2) in the circumstances it would be unfair to

admit the duplicate in lieu of the original.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1946.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

When the only concern is with getting the words or other contents

before the court with accuracy and precision, then a counterpart

serves equally as well as the original, if the counterpart is the

product of a method which insures accuracy and genuineness. By

definition in Rule 1001(4), supra, a "duplicate" possesses this

character.

Therefore, if no genuine issue exists as to authenticity and no

other reason exists for requiring the original, a duplicate is

admissible under the rule. This position finds support in the

decisions, Myrick v. United States, 332 F.2d 279 (5th Cir. 1964),

no error in admitting photostatic copies of checks instead of

original microfilm in absence of suggestion to trial judge that

photostats were incorrect; Johns v. United States, 323 F.2d 421

(5th Cir. 1963), not error to admit concededly accurate tape

recording made from original wire recording; Sauget v. Johnston,

315 F.2d 816 (9th Cir. 1963), not error to admit copy of agreement

when opponent had original and did not on appeal claim any

discrepancy. Other reasons for requiring the original may be

present when only a part of the original is reproduced and the

remainder is needed for cross-examination or may disclose matters

qualifying the part offered or otherwise useful to the opposing

party. United States v. Alexander, 326 F.2d 736 (4th Cir. 1964).

And see Toho Bussan Kaisha, Ltd. v. American President Lines, Ltd.,

265 F.2d 418, 76 A.L.R.2d 1344 (2d Cir. 1959).

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

The Committee approved this Rule in the form submitted by the

Court, with the expectation that the courts would be liberal in

deciding that a "genuine question is raised as to the authenticity

of the original."

-End-

-CITE-

28 USC APPENDIX Rule 1004 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-

Rule 1004. Admissibility of Other Evidence of Contents

-STATUTE-

The original is not required, and other evidence of the contents

of a writing, recording, or photograph is admissible if -

(1) Originals lost or destroyed. - All originals are lost or

have been destroyed, unless the proponent lost or destroyed them

in bad faith; or

(2) Original not obtainable. - No original can be obtained by

any available judicial process or procedure; or

(3) Original in possession of opponent. - At a time when an

original was under the control of the party against whom offered,

that party was put on notice, by the pleadings or otherwise, that

the contents would be a subject of proof at the hearing, and that

party does not produce the original at the hearing; or

(4) Collateral matters. - The writing, recording, or photograph

is not closely related to a controlling issue.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1946; Mar. 2, 1987,

eff. Oct. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Basically the rule requiring the production of the original as

proof of contents has developed as a rule of preference: if failure

to produce the original is satisfactory explained, secondary

evidence is admissible. The instant rule specifies the

circumstances under which production of the original is excused.

The rule recognizes no "degrees" of secondary evidence. While

strict logic might call for extending the principle of preference

beyond simply preferring the original, the formulation of a

hierarchy of preferences and a procedure for making it effective is

believed to involve unwarranted complexities. Most, if not all,

that would be accomplished by an extended scheme of preferences

will, in any event, be achieved through the normal motivation of a

party to present the most convincing evidence possible and the

arguments and procedures available to his opponent if he does not.

Compare McCormick Sec. 207.

Paragraph (1). Loss or destruction of the original, unless due to

bad faith of the proponent, is a satisfactory explanation of

nonproduction. McCormick Sec. 201.

Paragraph (2). When the original is in the possession of a third

person, inability to procure it from him by resort to process or

other judicial procedure is sufficient explanation of

nonproduction. Judicial procedure includes subpoena duces tecum as

an incident to the taking of a deposition in another jurisdiction.

No further showing is required. See McCormick Sec. 202.

Paragraph (3). A party who has an original in his control has no

need for the protection of the rule if put on notice that proof of

contents will be made. He can ward off secondary evidence by

offering the original. The notice procedure here provided is not to

be confused with orders to produce or other discovery procedures,

as the purpose of the procedure under this rule is to afford the

opposite party an opportunity to produce the original, not to

compel him to do so. McCormick Sec. 203.

Paragraph (4). While difficult to define with precision,

situations arise in which no good purpose is served by production

of the original. Examples are the newspaper in an action for the

price of publishing defendant's advertisement, Foster-Holcomb

Investment Co. v. Little Rock Publishing Co., 151 Ark. 449, 236

S.W. 597 (1922), and the streetcar transfer of plaintiff claiming

status as a passenger, Chicago City Ry. Co. v. Carroll, 206 Ill.

318, 68 N.E. 1087 (1903). Numerous cases are collected in McCormick

Sec. 200, p. 412, n. 1.

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

The Committee approved Rule 1004(1) in the form submitted to

Congress. However, the Committee intends that loss or destruction

of an original by another person at the instigation of the

proponent should be considered as tantamount to loss or destruction

in bad faith by the proponent himself.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendments are technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 1005 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-

Rule 1005. Public Records

-STATUTE-

The contents of an official record, or of a document authorized

to be recorded or filed and actually recorded or filed, including

data compilations in any form, if otherwise admissible, may be

proved by copy, certified as correct in accordance with rule 902 or

testified to be correct by a witness who has compared it with the

original. If a copy which complies with the foregoing cannot be

obtained by the exercise of reasonable diligence, then other

evidence of the contents may be given.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1946.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Public records call for somewhat different treatment. Removing

them from their usual place of keeping would be attended by serious

inconvenience to the public and to the custodian. As a consequence

judicial decisions and statutes commonly hold that no explanation

need be given for failure to produce the original of a public

record. McCormick Sec. 204; 4 Wigmore Secs. 1215-1228. This blanket

dispensation from producing or accounting for the original would

open the door to the introduction of every kind of secondary

evidence of contents of public records were it not for the

preference given certified or compared copies. Recognition of

degrees of secondary evidence in this situation is an appropriate

quid pro quo for not applying the requirement of producing the

original.

The provisions of 28 U.S.C. Sec. 1733(b) apply only to

departments or agencies of the United States. The rule, however,

applies to public records generally and is comparable in scope in

this respect to Rule 44(a) of the Rules of Civil Procedure.

-End-

-CITE-

28 USC APPENDIX Rule 1006 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-

Rule 1006. Summaries

-STATUTE-

The contents of voluminous writings, recordings, or photographs

which cannot conveniently be examined in court may be presented in

the form of a chart, summary, or calculation. The originals, or

duplicates, shall be made available for examination or copying, or

both, by other parties at reasonable time and place. The court may

order that they be produced in court.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1946.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

The admission of summaries of voluminous books, records, or

documents offers the only practicable means of making their

contents available to judge and jury. The rule recognizes this

practice, with appropriate safeguards. 4 Wigmore Sec. 1230.

-End-

-CITE-

28 USC APPENDIX Rule 1007 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-

Rule 1007. Testimony or Written Admission of Party

-STATUTE-

Contents of writings, recordings, or photographs may be proved by

the testimony or deposition of the party against whom offered or by

that party's written admission, without accounting for the

nonproduction of the original.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1947; Mar. 2, 1987,

eff. Oct. 1, 1987.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

While the parent case, Slatterie v. Pooley, 6 M. & W. 664, 151

Eng. Rep. 579 (Exch. 1840), allows proof of contents by evidence of

an oral admission by the party against whom offered, without

accounting for nonproduction of the original, the risk of

inaccuracy is substantial and the decision is at odds with the

purpose of the rule giving preference to the original. See 4

Wigmore Sec. 1255. The instant rule follows Professor McCormick's

suggestion of limiting this use of admissions to those made in the

course of giving testimony or in writing. McCormick Sec. 208, p.

424. The limitation, of course, does not call for excluding

evidence of an oral admission when nonproduction of the original

has been accounted for and secondary evidence generally has become

admissible. Rule 1004, supra.

A similar provision is contained in New Jersey Evidence Rule

70(1)(h).

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

The amendment is technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 1008 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

-HEAD-

Rule 1008. Functions of Court and Jury

-STATUTE-

When the admissibility of other evidence of contents of writings,

recordings, or photographs under these rules depends upon the

fulfillment of a condition of fact, the question whether the

condition has been fulfilled is ordinarily for the court to

determine in accordance with the provisions of rule 104. However,

when an issue is raised (a) whether the asserted writing ever

existed, or (b) whether another writing, recording, or photograph

produced at the trial is the original, or (c) whether other

evidence of contents correctly reflects the contents, the issue is

for the trier of fact to determine as in the case of other issues

of fact.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1947.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Most preliminary questions of fact in connection with applying

the rule preferring the original as evidence of contents are for

the judge, under the general principles announced in Rule 104,

supra. Thus, the question whether the loss of the originals has

been established, or of the fulfillment of other conditions

specified in Rule 1004, supra, is for the judge. However, questions

may arise which go beyond the mere administration of the rule

preferring the original and into the merits of the controversy. For

example, plaintiff offers secondary evidence of the contents of an

alleged contract, after first introducing evidence of loss of the

original, and defendant counters with evidence that no such

contract was ever executed. If the judge decides that the contract

was never executed and excludes the secondary evidence, the case is

at an end without ever going to the jury on a central issue. Levin,

Authentication and Content of Writings, 10 Rutgers L.Rev. 632, 644

(1956). The latter portion of the instant rule is designed to

insure treatment of these situations as raising jury questions. The

decision is not one for uncontrolled discretion of the jury but is

subject to the control exercised generally by the judge over jury

determinations. See Rule 104(b), supra.

For similar provisions, see Uniform Rule 70(2); Kansas Code of

Civil Procedure Sec. 60-467(b); New Jersey Evidence Rule 70(2),

(3).

-End-

-CITE-

28 USC APPENDIX ARTICLE XI. MISCELLANEOUS RULES 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE XI. MISCELLANEOUS RULES

-HEAD-

ARTICLE XI. MISCELLANEOUS RULES

-End-

-CITE-

28 USC APPENDIX Rule 1101 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE XI. MISCELLANEOUS RULES

-HEAD-

Rule 1101. Applicability of Rules

-STATUTE-

(a) Courts and judges. - These rules apply to the United States

district courts, the District Court of Guam, the District Court of

the Virgin Islands, the District Court for the Northern Mariana

Islands, the United States courts of appeals, the United States

Claims Court, and to United States bankruptcy judges and United

States magistrate judges, in the actions, cases, and proceedings

and to the extent hereinafter set forth. The terms "judge" and

"court" in these rules include United States bankruptcy judges and

United States magistrate judges.

(b) Proceedings generally. - These rules apply generally to civil

actions and proceedings, including admiralty and maritime cases, to

criminal cases and proceedings, to contempt proceedings except

those in which the court may act summarily, and to proceedings and

cases under title 11, United States Code.

(c) Rule of privilege. - The rule with respect to privileges

applies at all stages of all actions, cases, and proceedings.

(d) Rules inapplicable. - The rules (other than with respect to

privileges) do not apply in the following situations:

(1) Preliminary questions of fact. - The determination of

questions of fact preliminary to admissibility of evidence when

the issue is to be determined by the court under rule 104.

(2) Grand jury. - Proceedings before grand juries.

(3) Miscellaneous proceedings. - Proceedings for extradition or

rendition; preliminary examinations in criminal cases;

sentencing, or granting or revoking probation; issuance of

warrants for arrest, criminal summonses, and search warrants; and

proceedings with respect to release on bail or otherwise.

(e) Rules applicable in part. - In the following proceedings

these rules apply to the extent that matters of evidence are not

provided for in the statutes which govern procedure therein or in

other rules prescribed by the Supreme Court pursuant to statutory

authority: the trial of misdemeanors and other petty offenses

before United States magistrate judges; review of agency actions

when the facts are subject to trial de novo under section 706(2)(F)

of title 5, United States Code; review of orders of the Secretary

of Agriculture under section 2 of the Act entitled "An Act to

authorize association of producers of agricultural products"

approved February 18, 1922 (7 U.S.C. 292), and under sections 6 and

7(c) of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C.

499f, 499g(c)); naturalization and revocation of naturalization

under sections 310-318 of the Immigration and Nationality Act (8

U.S.C. 1421-1429); prize proceedings in admiralty under sections

7651-7681 of title 10, United States Code; review of orders of the

Secretary of the Interior under section 2 of the Act entitled "An

Act authorizing associations of producers of aquatic products"

approved June 25, 1934 (15 U.S.C. 522); review of orders of

petroleum control boards under section 5 of the Act entitled "An

Act to regulate interstate and foreign commerce in petroleum and

its products by prohibiting the shipment in such commerce of

petroleum and its products produced in violation of State law, and

for other purposes", approved February 22, 1935 (15 U.S.C. 715d);

actions for fines, penalties, or forfeitures under part V of title

IV of the Tariff Act of 1930 (19 U.S.C. 1581-1624), or under the

Anti-Smuggling Act (19 U.S.C. 1701-1711); criminal libel for

condemnation, exclusion of imports, or other proceedings under the

Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301-392); disputes

between seamen under sections 4079, 4080, and 4081 of the Revised

Statutes (22 U.S.C. 256-258); habeas corpus under sections

2241-2254 of title 28, United States Code; motions to vacate, set

aside or correct sentence under section 2255 of title 28, United

States Code; actions for penalties for refusal to transport

destitute seamen under section 4578 of the Revised Statutes (46

U.S.C. 679); (!1) actions against the United States under the Act

entitled "An Act authorizing suits against the United States in

admiralty for damage caused by and salvage service rendered to

public vessels belonging to the United States, and for other

purposes", approved March 3, 1925 (46 U.S.C. 781-790), as

implemented by section 7730 of title 10, United States Code.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1947; Pub. L.

94-149, Sec. 1(14), Dec. 12, 1975, 89 Stat. 806; Pub. L. 95-598,

title II, Secs. 251, 252, Nov. 6, 1978, 92 Stat. 2673; Pub. L.

97-164, title I, Sec. 142, Apr. 2, 1982, 96 Stat. 45; Mar. 2, 1987,

eff. Oct. 1, 1987; Apr. 25, 1988, eff. Nov. 1, 1988; Pub. L.

100-690, title VII, Sec. 7075(c), Nov. 18, 1988, 102 Stat. 4405;

Apr. 22, 1993, eff. Dec. 1, 1993.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON PROPOSED RULES

Subdivision (a). The various enabling acts contain differences in

phraseology in their descriptions of the courts over which the

Supreme Court's power to make rules of practice and procedure

extends. The act concerning civil actions, as amended in 1966,

refers to "the district courts * * * of the United States in civil

actions, including admiralty and maritime cases. * * *" 28 U.S.C.

Sec. 2072, Pub. L. 89-773, Sec. 1, 80 Stat. 1323. The bankruptcy

authorization is for rules of practice and procedure "under the

Bankruptcy Act." 28 U.S.C. Sec. 2075, Pub. L. 88-623, Sec. 1, 78

Stat. 1001. The Bankruptcy Act in turn creates bankruptcy courts of

"the United States district courts and the district courts of the

Territories and possessions to which this title is or may hereafter

be applicable." 11 U.S.C. Secs. 1(10), 11(a). The provision as to

criminal rules up to and including verdicts applies to "criminal

cases and proceedings to punish for criminal contempt of court in

the United States district courts, in the district courts for the

districts of the Canal Zone and Virgin Islands, in the Supreme

Court of Puerto Rico, and in proceedings before United States

magistrates." 18 U.S.C. Sec. 3771.

These various provisions do not in terms describe the same

courts. In congressional usage the phrase "district courts of the

United States," without further qualification, traditionally has

included the district courts established by Congress in the states

under Article III of the Constitution, which are "constitutional"

courts, and has not included the territorial courts created under

Article IV, Section 3, Clause 2, which are "legislative" courts.

Hornbuckle v. Toombs, 85 U.S. 648, 21 L.Ed. 966 (1873). However,

any doubt as to the inclusion of the District Court for the

District of Columbia in the phrase is laid at rest by the

provisions of the Judicial Code constituting the judicial

districts, 28 U.S.C. Sec. 81 et seq. creating district courts

therein, Id. Sec. 132, and specifically providing that the term

"district court of the United States" means the courts so

constituted. Id. Sec. 451. The District of Columbia is included.

Id. Sec. 88. Moreover, when these provisions were enacted,

reference to the District of Columbia was deleted from the original

civil rules enabling act. 28 U.S.C. Sec. 2072. Likewise Puerto Rico

is made a district, with a district court, and included in the

term. Id. Sec. 119. The question is simply one of the extent of the

authority conferred by Congress. With respect to civil rules it

seems clearly to include the district courts in the states, the

District Court for the District of Columbia, and the District Court

for the District of Puerto Rico.

The bankruptcy coverage is broader. The bankruptcy courts include

"the United States district courts," which includes those

enumerated above. Bankruptcy courts also include "the district

courts of the Territories and possessions to which this title is or

may hereafter be applicable." 11 U.S.C. Secs. 1(10), 11(a). These

courts include the district courts of Guam and the Virgin Islands.

48 U.S.C. Secs. 1424(b), 1615. Professor Moore points out that

whether the District Court for the District of the Canal Zone is a

court of bankruptcy "is not free from doubt in view of the fact

that no other statute expressly or inferentially provides for the

applicability of the Bankruptcy Act in the Zone." He further

observes that while there seems to be little doubt that the Zone is

a territory or possession within the meaning of the Bankruptcy Act,

11 U.S.C. Sec. 1(10), it must be noted that the appendix to the

Canal Zone Code of 1934 did not list the Act among the laws of the

United States applicable to the Zone. 1 Moore's Collier on

Bankruptcy ¶1.10, pp. 67, 72, n. 25 (14th ed. 1967). The Code

of 1962 confers on the district court jurisdiction of:

"(4) actions and proceedings involving laws of the United States

applicable to the Canal Zone; and

"(5) other matters and proceedings wherein jurisdiction is

conferred by this Code or any other law." Canal Zone Code, 1962,

Title 3, Sec. 141.

Admiralty jurisdiction is expressly conferred. Id. Sec. 142.

General powers are conferred on the district court, "if the course

of proceeding is not specifically prescribed by this Code, by the

statute, or by applicable rule of the Supreme Court of the United

States * * *" Id. Sec. 279. Neither these provisions nor Sec. 1(10)

of the Bankruptcy Act ("district courts of the Territories and

possessions to which this title is or may hereafter be applicable")

furnishes a satisfactory answer as to the status of the District

Court for the District of the Canal Zone as a court of bankruptcy.

However, the fact is that this court exercises no bankruptcy

jurisdiction in practice.

The criminal rules enabling act specifies United States district

courts, district courts for the districts of the Canal Zone and the

Virgin Islands, the Supreme Court of the Commonwealth of Puerto

Rico, and proceedings before United States commissioners. Aside

from the addition of commissioners, now magistrates, this scheme

differs from the bankruptcy pattern in that it makes no mention of

the District Court of Guam but by specific mention removes the

Canal Zone from the doubtful list.

The further difference in including the Supreme Court of the

Commonwealth of Puerto Rico seems not to be significant for present

purposes, since the Supreme Court of the Commonwealth of Puerto

Rico is an appellate court. The Rules of Criminal Procedure have

not been made applicable to it, as being unneeded and

inappropriate, Rule 54(a) of the Federal Rules of Criminal

Procedure, and the same approach is indicated with respect to rules

of evidence.

If one were to stop at this point and frame a rule governing the

applicability of the proposed rules of evidence in terms of the

authority conferred by the three enabling acts, an irregular

pattern would emerge as follows:

Civil actions, including admiralty and maritime cases - district

courts in the states, District of Columbia, and Puerto Rico.

Bankruptcy - same as civil actions, plus Guam and Virgin Islands.

Criminal cases - same as civil actions, plus Canal Zone and

Virgin Islands (but not Guam).

This irregular pattern need not, however, be accepted. Originally

the Advisory Committee on the Rules of Civil Procedure took the

position that, although the phrase "district courts of the United

States" did not include territorial courts, provisions in the

organic laws of Puerto Rico and Hawaii would make the rules

applicable to the district courts thereof, though this would not be

so as to Alaska, the Virgin Islands, or the Canal Zone, whose

organic acts contained no corresponding provisions. At the

suggestion of the Court, however, the Advisory Committee struck

from its notes a statement to the above effect. 2 Moore's Federal

Practice ¶1.07 (2nd ed. 1967); 1 Barron and Holtzoff, Federal

Practice and Procedure Sec. 121 (Wright ed. 1960). Congress

thereafter by various enactments provided that the rules and future

amendments thereto should apply to the district courts of Hawaii,

53 Stat. 841 (1939), Puerto Rico, 54 Stat. 22 (1940), Alaska, 63

Stat. 445 (1949), Guam, 64 Stat. 384-390 (1950), and the Virgin

Islands, 68 Stat. 497, 507 (1954). The original enabling act for

rules of criminal procedure specifically mentioned the district

courts of the Canal Zone and the Virgin Islands. The Commonwealth

of Puerto Rico was blanketed in by creating its court a "district

court of the United States" as previously described. Although Guam

is not mentioned in either the enabling act or in the expanded

definition of "district court of the United States," the Supreme

Court in 1956 amended Rule 54(a) to state that the Rules of

Criminal Procedure are applicable in Guam. The Court took this step

following the enactment of legislation by Congress in 1950 that

rules theretofore or thereafter promulgated by the Court in civil

cases, admiralty, criminal cases and bankruptcy should apply to the

District Court of Guam, 48 U.S.C. Sec. 1424(b), and two Ninth

Circuit decisions upholding the applicability of the Rules of

Criminal Procedure to Guam. Pugh v. United States, 212 F.2d 761

(9th Cir. 1954); Hatchett v. Guam, 212 F.2d 767 (9th Cir. 1954);

Orfield, The Scope of the Federal Rules of Criminal Procedure, 38

U. of Det.L.J. 173, 187 (1960).

From this history, the reasonable conclusion is that

Congressional enactment of a provision that rules and future

amendments shall apply in the courts of a territory or possession

is the equivalent of mention in an enabling act and that a rule on

scope and applicability may properly be drafted accordingly.

Therefore the pattern set by Rule 54 of the Federal Rules of

Criminal Procedure is here followed.

The substitution of magistrates in lieu of commissioners is made

in pursuance of the Federal Magistrates Act, P.L. 90-578, approved

October 17, 1968, 82 Stat. 1107.

Subdivision (b) is a combination of the language of the enabling

acts, supra, with respect to the kinds of proceedings in which the

making of rules is authorized. It is subject to the qualifications

expressed in the subdivisions which follow.

Subdivision (c), singling out the rules of privilege for special

treatment, is made necessary by the limited applicability of the

remaining rules.

Subdivision (d). The rule is not intended as an expression as to

when due process or other constitutional provisions may require an

evidentiary hearing. Paragraph (1) restates, for convenience, the

provisions of the second sentence of Rule 104(a), supra. See

Advisory Committee's Note to that rule.

(2) While some states have statutory requirements that

indictments be based on "legal evidence," and there is some case

law to the effect that the rules of evidence apply to grand jury

proceedings, 1 Wigmore Sec. 4(5), the Supreme Court has not

accepted this view. In Costello v. United States, 350 U.S. 359, 76

S.Ct. 406, 100 L.Ed. 397 (1965), the Court refused to allow an

indictment to be attacked, for either constitutional or policy

reasons, on the ground that only hearsay evidence was presented.

"It would run counter to the whole history of the grand jury

institution, in which laymen conduct their inquiries unfettered by

technical rules. Neither justice nor the concept of a fair trial

requires such a change." Id. at 364. The rule as drafted does not

deal with the evidence required to support an indictment.

(3) The rule exempts preliminary examinations in criminal cases.

Authority as to the applicability of the rules of evidence to

preliminary examinations has been meagre and conflicting.

Goldstein, The State and the Accused: Balance of Advantage in

Criminal Procedure, 69 Yale L.J. 1149, 1168, n. 53 (1960); Comment,

Preliminary Hearings on Indictable Offenses in Philadelphia, 106 U.

of Pa.L.Rev. 589, 592-593 (1958). Hearsay testimony is, however,

customarily received in such examinations. Thus in a Dyer Act case,

for example, an affidavit may properly be used in a preliminary

examination to prove ownership of the stolen vehicle, thus saving

the victim of the crime the hardship of having to travel twice to a

distant district for the sole purpose of testifying as to

ownership. It is believed that the extent of the applicability of

the Rules of Evidence to preliminary examinations should be

appropriately dealt with by the Federal Rules of Criminal Procedure

which regulate those proceedings.

Extradition and rendition proceedings are governed in detail by

statute. 18 U.S.C. Secs. 3181-3195. They are essentially

administrative in character. Traditionally the rules of evidence

have not applied. 1 Wigmore Sec. 4(6). Extradition proceedings are

accepted from the operation of the Rules of Criminal Procedure.

Rule 54(b)(5) of Federal Rules of Criminal Procedure.

The rules of evidence have not been regarded as applicable to

sentencing or probation proceedings, where great reliance is placed

upon the presentence investigation and report. Rule 32(c) of the

Federal Rules of Criminal Procedure requires a presentence

investigation and report in every case unless the court otherwise

directs. In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93

L.Ed. 1337 (1949), in which the judge overruled a jury

recommendation of life imprisonment and imposed a death sentence,

the Court said that due process does not require confrontation or

cross-examination in sentencing or passing on probation, and that

the judge has broad discretion as to the sources and types of

information relied upon. Compare the recommendation that the

substance of all derogatory information be disclosed to the

defendant, in A.B.A. Project on Minimum Standards for Criminal

Justice, Sentencing Alternatives and Procedures Sec. 4.4, Tentative

Draft (1967, Sobeloff, Chm.). Williams was adhered to in Specht v.

Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), but

not extended to a proceeding under the Colorado Sex Offenders Act,

which was said to be a new charge leading in effect to punishment,

more like the recidivist statutes where opportunity must be given

to be heard on the habitual criminal issue.

Warrants for arrest, criminal summonses, and search warrants are

issued upon complaint or affidavit showing probable cause. Rules

4(a) and 41(c) of the Federal Rules of Criminal Procedure. The

nature of the proceedings makes application of the formal rules of

evidence inappropriate and impracticable.

Criminal contempts are punishable summarily if the judge

certifies that he saw or heard the contempt and that it was

committed in the presence of the court. Rule 42(a) of the Federal

Rules of Criminal Procedure. The circumstances which preclude

application of the rules of evidence in this situation are not

present, however, in other cases of criminal contempt.

Proceedings with respect to release on bail or otherwise do not

call for application of the rules of evidence. The governing

statute specifically provides:

"Information stated in, or offered in connection with, any order

entered pursuant to this section need not conform to the rules

pertaining to the admissibility of evidence in a court of law." 18

U.S.C.A. Sec. 3146(f). This provision is consistent with the type

of inquiry contemplated in A.B.A. Project on Minimum Standards for

Criminal Justice, Standards Relating to Pretrial Release, Sec.

4.5(b), (c), p. 16 (1968). The references to the weight of the

evidence against the accused, in Rule 46(a)(1), (c) of the Federal

Rules of Criminal Procedure and in 18 U.S.C.A. Sec. 3146(b), as a

factor to be considered, clearly do not have in view evidence

introduced at a hearing.

The rule does not exempt habeas corpus proceedings. The Supreme

Court held in Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85

L.Ed. 830 (1941), that the practice of disposing of matters of fact

on affidavit, which prevailed in some circuits, did not "satisfy

the command of the statute that the judge shall proceed 'to

determine the facts of the case, by hearing the testimony and

arguments.' " This view accords with the emphasis in Townsend v.

Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), upon

trial-type proceedings, Id. 311, 83 S.Ct. 745, with demeanor

evidence as a significant factor, Id. 322, 83 S.Ct. 745, in

applications by state prisoners aggrieved by unconstitutional

detentions. Hence subdivision (e) applies the rules to habeas

corpus proceedings to the extent not inconsistent with the statute.

Subdivision (e). In a substantial number of special proceedings,

ad hoc evaluation has resulted in the promulgation of

particularized evidentiary provisions, by Act of Congress or by

rule adopted by the Supreme Court. Well adapted to the particular

proceedings, though not apt candidates for inclusion in a set of

general rules, they are left undisturbed. Otherwise, however, the

rules of evidence are applicable to the proceedings enumerated in

the subdivision.

NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE REPORT NO. 93-650

Subdivision (a) as submitted to the Congress, in stating the

courts and judges to which the Rules of Evidence apply, omitted the

Court of Claims and commissioners of that Court. At the request of

the Court of Claims, the Committee amended the Rule to include the

Court and its commissioners within the purview of the Rules.

Subdivision (b) was amended merely to substitute positive law

citations for those which were not.

NOTES OF ADVISORY COMMITTEE ON RULES - 1987 AMENDMENT

Subdivision (a) is amended to delete the reference to the

District Court for the District of the Canal Zone, which no longer

exists, and to add the District Court for the Northern Mariana

Islands. The United States bankruptcy judges are added to conform

the subdivision with Rule 1101(b) and Bankruptcy Rule 9017.

NOTES OF ADVISORY COMMITTEE ON RULES - 1988 AMENDMENT

The amendments are technical. No substantive change is intended.

NOTES OF ADVISORY COMMITTEE ON RULES - 1993 AMENDMENT

This revision is made to conform the rule to changes in

terminology made by Rule 58 of the Federal Rules of Criminal

Procedure and to the changes in the title of United States

magistrates made by the Judicial Improvements Act of 1990.

-REFTEXT-

REFERENCES IN TEXT

The Tariff Act of 1930, referred to in subd. (e), is act June 17,

1930, ch. 497, 46 Stat. 590, as amended, which is classified

principally to chapter 4 (Sec. 1202 et seq.) of Title 19, Customs

Duties. Part V of title IV of the Tariff Act of 1930 enacted part V

(Sec. 1581 et seq.) of subtitle III of chapter 4 of Title 19. For

complete classification of this Act to the Code, see section 1654

of Title 19 and Tables.

The Anti-Smuggling Act (19 U.S.C. 1701-1711), referred to in

subd. (e), is act Aug. 5, 1935, ch. 438, 49 Stat. 517, as amended,

which is classified principally to chapter 5 (Sec. 1701 et seq.) of

Title 19. For complete classification of this Act to the Code, see

section 1711 of Title 19 and Tables.

The Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301-392),

referred to in subd. (e), is act June 25, 1938, ch. 675, 52 Stat.

1040, as amended, which is classified generally to chapter 9 (Sec.

301 et seq.) of Title 21, Food and Drugs. For complete

classification of this Act to the Code, see section 301 of Title 21

and Tables.

Section 4578 of the Revised Statutes (46 U.S.C. 679), referred to

in subd. (e), was repealed and reenacted as section 11104(b)-(d) of

Title 46, Shipping, by Pub. L. 98-89, Secs. 1, 2(a), 4(b), Aug. 26,

1983, 97 Stat. 500.

"An Act authorizing suits against the United States in admiralty

for damage caused by and salvage service rendered to public vessels

belonging to the United States, and for other purposes," approved

Mar. 3, 1925 (46 U.S.C. 781-790), referred to in subd. (e), is act

Mar. 3, 1925, ch. 428, 43 Stat. 1112, as amended, known as the

"Public Vessels Act", which is classified generally to chapter 22

(Sec. 781 et seq.) of Title 46, Appendix, Shipping. For complete

classification of this Act to the Code, see Short Title note set

out under section 781 of Title 46, Appendix, and Tables.

-MISC2-

AMENDMENT BY PUBLIC LAW

1988 - Subd. (a). Pub. L. 100-690, Sec. 7075(c)(1), which

directed amendment of subd. (a) by striking "Rules" and inserting

"rules", could not be executed because of the intervening amendment

by the Court by order dated Apr. 25, 1988, eff. Nov. 1, 1988.

Pub. L. 100-690, Sec. 7075(c)(2), substituted "courts of appeals"

for "Courts of Appeals".

1982 - Subd. (a). Pub. L. 97-164 substituted "United States

Claims Court" for "Court of Claims" and struck out "and

commissioners of the Court of Claims" after "these rules include

United States magistrates".

1978 - Subd. (a). Pub. L. 95-598, Sec. 252, directed the

amendment of this subd. by adding "the United States bankruptcy

courts," after "the United States district courts,", which

amendment did not become effective pursuant to section 402(b) of

Pub. L. 95-598, as amended, set out as an Effective Date note

preceding section 101 of Title 11, Bankruptcy.

Pub. L. 95-598, Sec. 251(a), struck out ", referees in

bankruptcy," after "United States magistrates".

Subd. (b). Pub. L. 95-598, Sec. 251(b), substituted "title 11,

United States Code" for "the Bankruptcy Act".

1975 - Subd. (e). Pub. L. 94-149 substituted "admiralty" for

"admirality".

-CHANGE-

CHANGE OF NAME

References to United States Claims Court deemed to refer to

United States Court of Federal Claims, see section 902(b) of Pub.

L. 102-572, set out as a note under section 171 of this title.

-MISC3-

EFFECTIVE DATE OF 1978 AMENDMENT

Amendment of subds. (a) and (b) of this rule by section 251 of

Pub. L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub.

L. 95-598, set out as an Effective Dates note preceding section 101

of the Appendix to Title 11, Bankruptcy. For Bankruptcy

Jurisdiction and procedure during transition period, see note

preceding section 1471 of this title.

EFFECTIVE DATE OF 1982 AMENDMENT

Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section

402 of Pub. L. 97-164, set out as a note under section 171 of this

title.

-FOOTNOTE-

(!1) Repealed and reenacted as 46 U.S.C. 11104(b)-(d) by Pub. L.

98-89, Secs. 1, 2(a), 4(b), Aug. 26, 1983, 97 Stat. 500.

-End-

-CITE-

28 USC APPENDIX Rule 1102 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE XI. MISCELLANEOUS RULES

-HEAD-

Rule 1102. Amendments

-STATUTE-

Amendments to the Federal Rules of Evidence may be made as

provided in section 2072 of title 28 of the United States Code.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1948; Apr. 30,

1991, eff. Dec. 1, 1991.)

-MISC1-

NOTES OF ADVISORY COMMITTEE ON RULES - 1991 AMENDMENT

The amendment is technical. No substantive change is intended.

-End-

-CITE-

28 USC APPENDIX Rule 1103 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

FEDERAL RULES OF EVIDENCE

ARTICLE XI. MISCELLANEOUS RULES

-HEAD-

Rule 1103. Title

-STATUTE-

These rules may be known and cited as the Federal Rules of

Evidence.

-SOURCE-

(Pub. L. 93-595, Sec. 1, Jan. 2, 1975, 88 Stat. 1948.)

-MISC1-

SHORT TITLE OF 1978 AMENDMENT

Pub. L. 95-540, Sec. 1, Oct. 28, 1978, 92 Stat. 2046, provided:

"That this Act [enacting rule 412 of these rules and a provision

set out as a note under rule 412 of these rules] may be cited as

the 'Privacy Protection for Rape Victims Act of 1978'."

-End-

-CITE-

28 USC APPENDIX RULES OF THE SUPREME COURT OF

THE UNITED STATES 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

-HEAD-

RULES OF THE SUPREME COURT OF THE UNITED STATES

-MISC1-

(ADOPTED JANUARY 11, 1999, EFFECTIVE MAY 3, 1999)

PART I. THE COURT

Rule

1. Clerk.

2. Library.

3. Term.

4. Sessions and Quorum.

PART II. ATTORNEYS AND COUNSELORS

5. Admission to the Bar.

6. Argument Pro Hac Vice.

7. Prohibition Against Practice.

8. Disbarment and Disciplinary Action.

9. Appearance of Counsel.

PART III. JURISDICTION ON WRIT OF CERTIORARI

10. Considerations Governing Review on Certiorari.

11. Certiorari to a United States Court of Appeals Before

Judgment.

12. Review on Certiorari: How Sought; Parties.

13. Review on Certiorari: Time for Petitioning.

14. Content of a Petition for a Writ of Certiorari.

15. Briefs in Opposition; Reply Briefs; Supplemental

Briefs.

16. Disposition of a Petition for a Writ of Certiorari.

PART IV. OTHER JURISDICTION

17. Procedure in an Original Action.

18. Appeal from a United States District Court.

19. Procedure on a Certified Question.

20. Procedure on a Petition for an Extraordinary Writ.

PART V. MOTIONS AND APPLICATIONS

21. Motions to the Court.

22. Applications to Individual Justices.

23. Stays.

PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT

24. Briefs on the Merits: In General.

25. Briefs on the Merits: Number of Copies and Time to

File.

26. Joint Appendix.

27. Calendar.

28. Oral Argument.

PART VII. PRACTICE AND PROCEDURE

29. Filing and Service of Documents; Special

Notifications; Corporate Listing.

30. Computation and Extension of Time.

31. Translations.

32. Models, Diagrams, and Exhibits.

33. Document Preparation: Booklet Format; 8 1/2 - by

11-Inch Paper Format.

34. Document Preparation: General Requirements.

35. Death, Substitution, and Revivor; Public Officers.

36. Custody of Prisoners in Habeas Corpus Proceedings.

37. Brief for an Amicus Curiae.

38. Fees.

39. Proceedings In Forma Pauperis.

40. Veterans, Seamen, and Military Cases.

PART VIII. DISPOSITION OF CASES

41. Opinions of the Court.

42. Interest and Damages.

43. Costs.

44. Rehearing.

45. Process; Mandates.

46. Dismissing Cases.

PART IX. DEFINITIONS AND EFFECTIVE DATE

47. Reference to "State Court" and "State Law".

48. Effective Date of Rules.

-End-

-CITE-

28 USC APPENDIX PART I. THE COURT 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART I. THE COURT

-HEAD-

PART I. THE COURT

-End-

-CITE-

28 USC APPENDIX Rule 1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART I. THE COURT

-HEAD-

Rule 1. Clerk

-STATUTE-

1. The Clerk receives documents for filing with the Court and has

authority to reject any submitted filing that does not comply with

these Rules.

2. The Clerk maintains the Court's records and will not permit

any of them to be removed from the Court building except as

authorized by the Court. Any document filed with the Clerk and made

a part of the Court's records may not thereafter be withdrawn from

the official Court files. After the conclusion of proceedings in

this Court, original records and documents transmitted to this

Court by any other court will be returned to the court from which

they were received.

3. Unless the Court or the Chief Justice orders otherwise, the

Clerk's office is open from 9 a.m. to 5 p.m., Monday through

Friday, except on federal legal holidays listed in 5 U.S.C. Sec.

6103.

-End-

-CITE-

28 USC APPENDIX Rule 2 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART I. THE COURT

-HEAD-

Rule 2. Library

-STATUTE-

1. The Court's library is available for use by appropriate

personnel of this Court, members of the Bar of this Court, Members

of Congress and their legal staffs, and attorneys for the United

States and for federal departments and agencies.

2. The library's hours are governed by regulations made by the

Librarian with the approval of the Chief Justice or the Court.

3. Library books may not be removed from the Court building,

except by a Justice or a member of a Justice's staff.

-End-

-CITE-

28 USC APPENDIX Rule 3 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART I. THE COURT

-HEAD-

Rule 3. Term

-STATUTE-

The Court holds a continuous annual Term commencing on the first

Monday in October and ending on the day before the first Monday in

October of the following year. See 28 U.S.C. Sec. 2. At the end of

each Term, all cases pending on the docket are continued to the

next Term.

-End-

-CITE-

28 USC APPENDIX Rule 4 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART I. THE COURT

-HEAD-

Rule 4. Sessions and Quorum

-STATUTE-

1. Open sessions of the Court are held beginning at 10 a.m. on

the first Monday in October of each year, and thereafter as

announced by the Court. Unless it orders otherwise, the Court sits

to hear arguments from 10 a.m. until noon and from 1 p.m. until 3

p.m.

2. Six Members of the Court constitute a quorum. See 28 U.S.C.

Sec. 1. In the absence of a quorum on any day appointed for holding

a session of the Court, the Justices attending - or if no Justice

is present, the Clerk or a Deputy Clerk - may announce that the

Court will not meet until there is a quorum.

3. When appropriate, the Court will direct the Clerk or the

Marshal to announce recesses.

-End-

-CITE-

28 USC APPENDIX PART II. ATTORNEYS AND

COUNSELORS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART II. ATTORNEYS AND COUNSELORS

-HEAD-

PART II. ATTORNEYS AND COUNSELORS

-End-

-CITE-

28 USC APPENDIX Rule 5 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART II. ATTORNEYS AND COUNSELORS

-HEAD-

Rule 5. Admission to the Bar

-STATUTE-

1. To qualify for admission to the Bar of this Court, an

applicant must have been admitted to practice in the highest court

of a State, Commonwealth, Territory or Possession, or the District

of Columbia for a period of at least three years immediately before

the date of application; must not have been the subject of any

adverse disciplinary action pronounced or in effect during that

3-year period; and must appear to the Court to be of good moral and

professional character.

2. Each applicant shall file with the Clerk (1) a certificate

from the presiding judge, clerk, or other authorized official of

that court evidencing the applicant's admission to practice there

and the applicant's current good standing, and (2) a completely

executed copy of the form approved by this Court and furnished by

the Clerk containing (a) the applicant's personal statement, and

(b) the statement of two sponsors endorsing the correctness of the

applicant's statement, stating that the applicant possesses all the

qualifications required for admission, and affirming that the

applicant is of good moral and professional character. Both

sponsors must be members of the Bar of this Court who personally

know, but are not related to, the applicant.

3. If the documents submitted demonstrate that the applicant

possesses the necessary qualifications, and if the applicant has

signed the oath or affirmation and paid the required fee, the Clerk

will notify the applicant of acceptance by the Court as a member of

the Bar and issue a certificate of admission. An applicant who so

wishes may be admitted in open court on oral motion by a member of

the Bar of this Court, provided that all other requirements for

admission have been satisfied.

4. Each applicant shall sign the following oath or affirmation:

I, ..............., do solemnly swear (or affirm) that as an

attorney and as a counselor of this Court, I will conduct myself

uprightly and according to law, and that I will support the

Constitution of the United States.

5. The fee for admission to the Bar and a certificate bearing the

seal of the Court is $100, payable to the United States Supreme

Court. The Marshal will deposit such fees in a separate fund to be

disbursed by the Marshal at the direction of the Chief Justice for

the costs of admissions, for the benefit of the Court and its Bar,

and for related purposes.

6. The fee for a duplicate certificate of admission to the Bar

bearing the seal of the Court is $15, and the fee for a certificate

of good standing is $10, payable to the United States Supreme

Court. The proceeds will be maintained by the Marshal as provided

in paragraph 5 of this Rule.

-End-

-CITE-

28 USC APPENDIX Rule 6 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART II. ATTORNEYS AND COUNSELORS

-HEAD-

Rule 6. Argument g742Pro Hac Vice

-STATUTE-

1. An attorney not admitted to practice in the highest court of a

State, Commonwealth, Territory or Possession, or the District of

Columbia for the requisite three years, but otherwise eligible for

admission to practice in this Court under Rule 5.1, may be

permitted to argue pro hac vice.

2. An attorney qualified to practice in the courts of a foreign

state may be permitted to argue pro hac vice.

3. Oral argument pro hac vice is allowed only on motion of the

counsel of record for the party on whose behalf leave is requested.

The motion shall state concisely the qualifications of the attorney

who is to argue pro hac vice. It shall be filed with the Clerk, in

the form required by Rule 21, no later than the date on which the

respondent's or appellee's brief on the merits is due to be filed,

and it shall be accompanied by proof of service as required by Rule

29.

-End-

-CITE-

28 USC APPENDIX Rule 7 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART II. ATTORNEYS AND COUNSELORS

-HEAD-

Rule 7. Prohibition Against Practice

-STATUTE-

No employee of this Court shall practice as an attorney or

counselor in any court or before any agency of government while

employed by the Court; nor shall any person after leaving such

employment participate in any professional capacity in any case

pending before this Court or in any case being considered for

filing in this Court, until two years have elapsed after

separation; nor shall a former employee ever participate in any

professional capacity in any case that was pending in this Court

during the employee's tenure.

-End-

-CITE-

28 USC APPENDIX Rule 8 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART II. ATTORNEYS AND COUNSELORS

-HEAD-

Rule 8. Disbarment and Disciplinary Action

-STATUTE-

1. Whenever a member of the Bar of this Court has been disbarred

or suspended from practice in any court of record, or has engaged

in conduct unbecoming a member of the Bar of this Court, the Court

will enter an order suspending that member from practice before

this Court and affording the member an opportunity to show cause,

within 40 days, why a disbarment order should not be entered. Upon

response, or if no response is timely filed, the Court will enter

an appropriate order.

2. After reasonable notice and an opportunity to show cause why

disciplinary action should not be taken, and after a hearing if

material facts are in dispute, the Court may take any appropriate

disciplinary action against any attorney who is admitted to

practice before it for conduct unbecoming a member of the Bar or

for failure to comply with these Rules or any Rule or order of the

Court.

-End-

-CITE-

28 USC APPENDIX Rule 9 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART II. ATTORNEYS AND COUNSELORS

-HEAD-

Rule 9. Appearance of Counsel

-STATUTE-

1. An attorney seeking to file a document in this Court in a

representative capacity must first be admitted to practice before

this Court as provided in Rule 5, except that admission to the Bar

of this Court is not required for an attorney appointed under the

Criminal Justice Act of 1964, see 18 U.S.C. Sec. 3006A(d)(6), or

under any other applicable federal statute. The attorney whose

name, address, and telephone number appear on the cover of a

document presented for filing is considered counsel of record, and

a separate notice of appearance need not be filed. If the name of

more than one attorney is shown on the cover of the document, the

attorney who is counsel of record shall be clearly identified.

2. An attorney representing a party who will not be filing a

document shall enter a separate notice of appearance as counsel of

record indicating the name of the party represented. A separate

notice of appearance shall also be entered whenever an attorney is

substituted as counsel of record in a particular case.

-REFTEXT-

REFERENCES IN TEXT

The Criminal Justice Act of 1964, referred to in par. 1, is Pub.

L. 88-455, Aug. 20, 1964, 78 Stat. 552, as amended, which enacted

section 3006A of Title 18, Crimes and Criminal Procedure, and

provisions set out as notes under section 3006A of Title 18. For

complete classification of this Act to the Code, see Short Title

note set out under section 3006A of Title 18 and Tables.

-End-

-CITE-

28 USC APPENDIX PART III. JURISDICTION ON WRIT

OF CERTIORARI 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-

PART III. JURISDICTION ON WRIT OF CERTIORARI

-End-

-CITE-

28 USC APPENDIX Rule 10 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-

Rule 10. Considerations Governing Review on Certiorari

-STATUTE-

Review on a writ of certiorari is not a matter of right, but of

judicial discretion. A petition for a writ of certiorari will be

granted only for compelling reasons. The following, although

neither controlling nor fully measuring the Court's discretion,

indicate the character of the reasons the Court considers:

(a) a United States court of appeals has entered a decision in

conflict with the decision of another United States court of

appeals on the same important matter; has decided an important

federal question in a way that conflicts with a decision by a

state court of last resort; or has so far departed from the

accepted and usual course of judicial proceedings, or sanctioned

such a departure by a lower court, as to call for an exercise of

this Court's supervisory power;

(b) a state court of last resort has decided an important

federal question in a way that conflicts with the decision of

another state court of last resort or of a United States court of

appeals;

(c) a state court or a United States court of appeals has

decided an important question of federal law that has not been,

but should be, settled by this Court, or has decided an important

federal question in a way that conflicts with relevant decisions

of this Court.

A petition for a writ of certiorari is rarely granted when the

asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law.

-End-

-CITE-

28 USC APPENDIX Rule 11 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-

Rule 11. Certiorari to a United States Court of Appeals Before

Judgment

-STATUTE-

A petition for a writ of certiorari to review a case pending in a

United States court of appeals, before judgment is entered in that

court, will be granted only upon a showing that the case is of such

imperative public importance as to justify deviation from normal

appellate practice and to require immediate determination in this

Court. See 28 U.S.C. Sec. 2101(e).

-End-

-CITE-

28 USC APPENDIX Rule 12 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-

Rule 12. Review on Certiorari: How Sought; Parties

-STATUTE-

1. Except as provided in paragraph 2 of this Rule, the petitioner

shall file 40 copies of a petition for a writ of certiorari,

prepared as required by Rule 33.1, and shall pay the Rule 38(a)

docket fee.

2. A petitioner proceeding in forma pauperis under Rule 39 shall

file an original and 10 copies of a petition for a writ of

certiorari prepared as required by Rule 33.2, together with an

original and 10 copies of the motion for leave to proceed in forma

pauperis. A copy of the motion shall precede and be attached to

each copy of the petition. An inmate confined in an institution, if

proceeding in forma pauperis and not represented by counsel, need

file only an original petition and motion.

3. Whether prepared under Rule 33.1 or Rule 33.2, the petition

shall comply in all respects with Rule 14 and shall be submitted

with proof of service as required by Rule 29. The case then will be

placed on the docket. It is the petitioner's duty to notify all

respondents promptly, on a form supplied by the Clerk, of the date

of filing, the date the case was placed on the docket, and the

docket number of the case. The notice shall be served as required

by Rule 29.

4. Parties interested jointly, severally, or otherwise in a

judgment may petition separately for a writ of certiorari; or any

two or more may join in a petition. A party not shown on the

petition as joined therein at the time the petition is filed may

not later join in that petition. When two or more judgments are

sought to be reviewed on a writ of certiorari to the same court and

involve identical or closely related questions, a single petition

for a writ of certiorari covering all the judgments suffices. A

petition for a writ of certiorari may not be joined with any other

pleading, except that any motion for leave to proceed in forma

pauperis shall be attached.

5. No more than 30 days after a case has been placed on the

docket, a respondent seeking to file a conditional cross-petition

(i.e., a cross-petition that otherwise would be untimely) shall

file, with proof of service as required by Rule 29, 40 copies of

the cross-petition prepared as required by Rule 33.1, except that a

cross-petitioner proceeding in forma pauperis under Rule 39 shall

comply with Rule 12.2. The cross-petition shall comply in all

respects with this Rule and Rule 14, except that material already

reproduced in the appendix to the opening petition need not be

reproduced again. A cross-petitioning respondent shall pay the Rule

38(a) docket fee or submit a motion for leave to proceed in forma

pauperis. The cover of the cross-petition shall indicate clearly

that it is a conditional cross-petition. The cross-petition then

will be placed on the docket, subject to the provisions of Rule

13.4. It is the cross-petitioner's duty to notify all

cross-respondents promptly, on a form supplied by the Clerk, of the

date of filing, the date the cross-petition was placed on the

docket, and the docket number of the cross-petition. The notice

shall be served as required by Rule 29. A cross-petition for a writ

of certiorari may not be joined with any other pleading, except

that any motion for leave to proceed in forma pauperis shall be

attached. The time to file a conditional cross-petition will not be

extended.

6. All parties to the proceeding in the court whose judgment is

sought to be reviewed are deemed parties entitled to file documents

in this Court, unless the petitioner notifies the Clerk of this

Court in writing of the petitioner's belief that one or more of the

parties below have no interest in the outcome of the petition. A

copy of such notice shall be served as required by Rule 29 on all

parties to the proceeding below. A party noted as no longer

interested may remain a party by notifying the Clerk promptly, with

service on the other parties, of an intention to remain a party.

All parties other than the petitioner are considered respondents,

but any respondent who supports the position of a petitioner shall

meet the petitioner's time schedule for filing documents, except

that a response supporting the petition shall be filed within 20

days after the case is placed on the docket, and that time will not

be extended. Parties who file no document will not qualify for any

relief from this Court.

7. The clerk of the court having possession of the record shall

keep it until notified by the Clerk of this Court to certify and

transmit it. In any document filed with this Court, a party may

cite or quote from the record, even if it has not been transmitted

to this Court. When requested by the Clerk of this Court to certify

and transmit the record, or any part of it, the clerk of the court

having possession of the record shall number the documents to be

certified and shall transmit therewith a numbered list specifically

identifying each document transmitted. If the record, or stipulated

portions, have been printed for the use of the court below, that

printed record, plus the proceedings in the court below, may be

certified as the record unless one of the parties or the Clerk of

this Court requests otherwise. The record may consist of certified

copies, but if the lower court is of the view that original

documents of any kind should be seen by this Court, that court may

provide by order for the transport, safekeeping, and return of such

originals.

-End-

-CITE-

28 USC APPENDIX Rule 13 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-

Rule 13. Review on Certiorari: Time for Petitioning

-STATUTE-

1. Unless otherwise provided by law, a petition for a writ of

certiorari to review a judgment in any case, civil or criminal,

entered by a state court of last resort or a United States court of

appeals (including the United States Court of Appeals for the Armed

Forces) is timely when it is filed with the Clerk of this Court

within 90 days after entry of the judgment. A petition for a writ

of certiorari seeking review of a judgment of a lower state court

that is subject to discretionary review by the state court of last

resort is timely when it is filed with the Clerk within 90 days

after entry of the order denying discretionary review.

2. The Clerk will not file any petition for a writ of certiorari

that is jurisdictionally out of time. See, e.g., 28 U.S.C. Sec.

2101(c).

3. The time to file a petition for a writ of certiorari runs from

the date of entry of the judgment or order sought to be reviewed,

and not from the issuance date of the mandate (or its equivalent

under local practice). But if a petition for rehearing is timely

filed in the lower court by any party, the time to file the

petition for a writ of certiorari for all parties (whether or not

they requested rehearing or joined in the petition for rehearing)

runs from the date of the denial of the petition for rehearing or,

if the petition for rehearing is granted, the subsequent entry of

judgment.

4. A cross-petition for a writ of certiorari is timely when it is

filed with the Clerk as provided in paragraphs 1, 3, and 5 of this

Rule, or in Rule 12.5. However, a conditional cross-petition (which

except for Rule 12.5 would be untimely) will not be granted unless

another party's timely petition for a writ of certiorari is

granted.

5. For good cause, a Justice may extend the time to file a

petition for a writ of certiorari for a period not exceeding 60

days. An application to extend the time to file shall set out the

basis for jurisdiction in this Court, identify the judgment sought

to be reviewed, include a copy of the opinion and any order

respecting rehearing, and set out specific reasons why an extension

of time is justified. The application must be received by the Clerk

at least 10 days before the date the petition is due, except in

extraordinary circumstances. For the time and manner of presenting

the application, see Rules 21, 22, 30, and 33.2. An application to

extend the time to file a petition for a writ of certiorari is not

favored.

-End-

-CITE-

28 USC APPENDIX Rule 14 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-

Rule 14. Content of a Petition for a Writ of Certiorari

-STATUTE-

1. A petition for a writ of certiorari shall contain, in the

order indicated:

(a) The questions presented for review, expressed concisely in

relation to the circumstances of the case, without unnecessary

detail. The questions should be short and should not be

argumentative or repetitive. If the petitioner or respondent is

under a death sentence that may be affected by the disposition of

the petition, the notation "capital case" shall precede the

questions presented. The questions shall be set out on the first

page following the cover, and no other information may appear on

that page. The statement of any question presented is deemed to

comprise every subsidiary question fairly included therein. Only

the questions set out in the petition, or fairly included

therein, will be considered by the Court.

(b) A list of all parties to the proceeding in the court whose

judgment is sought to be reviewed (unless the caption of the case

contains the names of all the parties), and a corporate

disclosure statement as required by Rule 29.6.

(c) If the petition exceeds five pages, a table of contents and

a table of cited authorities.

(d) Citations of the official and unofficial reports of the

opinions and orders entered in the case by courts or

administrative agencies.

(e) A concise statement of the basis for jurisdiction in this

Court, showing:

(i) the date the judgment or order sought to be reviewed was

entered (and, if applicable, a statement that the petition is

filed under this Court's Rule 11);

(ii) the date of any order respecting rehearing, and the date

and terms of any order granting an extension of time to file

the petition for a writ of certiorari;

(iii) express reliance on Rule 12.5, when a cross-petition

for a writ of certiorari is filed under that Rule, and the date

of docketing of the petition for a writ of certiorari in

connection with which the cross-petition is filed;

(iv) the statutory provision believed to confer on this Court

jurisdiction to review on a writ of certiorari the judgment or

order in question; and

(v) if applicable, a statement that the notifications

required by Rule 29.4(b) or (c) have been made.

(f) The constitutional provisions, treaties, statutes,

ordinances, and regulations involved in the case, set out

verbatim with appropriate citation. If the provisions involved

are lengthy, their citation alone suffices at this point, and

their pertinent text shall be set out in the appendix referred to

in subparagraph 1(i).

(g) A concise statement of the case setting out the facts

material to consideration of the questions presented, and also

containing the following:

(i) If review of a state-court judgment is sought,

specification of the stage in the proceedings, both in the

court of first instance and in the appellate courts, when the

federal questions sought to be reviewed were raised; the method

or manner of raising them and the way in which they were passed

on by those courts; and pertinent quotations of specific

portions of the record or summary thereof, with specific

reference to the places in the record where the matter appears

(e.g., court opinion, ruling on exception, portion of court's

charge and exception thereto, assignment of error), so as to

show that the federal question was timely and properly raised

and that this Court has jurisdiction to review the judgment on

a writ of certiorari. When the portions of the record relied on

under this subparagraph are voluminous, they shall be included

in the appendix referred to in subparagraph 1(i).

(ii) If review of a judgment of a United States court of

appeals is sought, the basis for federal jurisdiction in the

court of first instance.

(h) A direct and concise argument amplifying the reasons relied

on for allowance of the writ. See Rule 10.

(i) An appendix containing, in the order indicated:

(i) the opinions, orders, findings of fact, and conclusions

of law, whether written or orally given and transcribed,

entered in conjunction with the judgment sought to be reviewed;

(ii) any other relevant opinions, orders, findings of fact,

and conclusions of law entered in the case by courts or

administrative agencies, and, if reference thereto is necessary

to ascertain the grounds of the judgment, of those in companion

cases (each document shall include the caption showing the name

of the issuing court or agency, the title and number of the

case, and the date of entry);

(iii) any order on rehearing, including the caption showing

the name of the issuing court, the title and number of the

case, and the date of entry;

(iv) the judgment sought to be reviewed if the date of its

entry is different from the date of the opinion or order

required in sub-subparagraph (i) of this subparagraph;

(v) material required by subparagraphs 1(f) or 1(g)(i); and

(vi) any other material the petitioner believes essential to

understand the petition.

If the material required by this subparagraph is voluminous, it may

be presented in a separate volume or volumes with appropriate

covers.

2. All contentions in support of a petition for a writ of

certiorari shall be set out in the body of the petition, as

provided in subparagraph 1(h) of this Rule. No separate brief in

support of a petition for a writ of certiorari may be filed, and

the Clerk will not file any petition for a writ of certiorari to

which any supporting brief is annexed or appended.

3. A petition for a writ of certiorari should be stated briefly

and in plain terms and may not exceed the page limitations

specified in Rule 33.

4. The failure of a petitioner to present with accuracy, brevity,

and clarity whatever is essential to ready and adequate

understanding of the points requiring consideration is sufficient

reason for the Court to deny a petition.

5. If the Clerk determines that a petition submitted timely and

in good faith is in a form that does not comply with this Rule or

with Rule 33 or Rule 34, the Clerk will return it with a letter

indicating the deficiency. A corrected petition received no more

than 60 days after the date of the Clerk's letter will be deemed

timely.

-End-

-CITE-

28 USC APPENDIX Rule 15 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-

Rule 15. Briefs in Opposition; Reply Briefs; Supplemental Briefs

-STATUTE-

1. A brief in opposition to a petition for a writ of certiorari

may be filed by the respondent in any case, but is not mandatory

except in a capital case, see Rule 14.1(a), or when ordered by the

Court.

2. A brief in opposition should be stated briefly and in plain

terms and may not exceed the page limitations specified in Rule 33.

In addition to presenting other arguments for denying the petition,

the brief in opposition should address any perceived misstatement

of fact or law in the petition that bears on what issues properly

would be before the Court if certiorari were granted. Counsel are

admonished that they have an obligation to the Court to point out

in the brief in opposition, and not later, any perceived

misstatement made in the petition. Any objection to consideration

of a question presented based on what occurred in the proceedings

below, if the objection does not go to jurisdiction, may be deemed

waived unless called to the Court's attention in the brief in

opposition.

3. Any brief in opposition shall be filed within 30 days after

the case is placed on the docket, unless the time is extended by

the Court or a Justice, or by the Clerk under Rule 30.4. Forty

copies shall be filed, except that a respondent proceeding in forma

pauperis under Rule 39, including an inmate of an institution,

shall file the number of copies required for a petition by such a

person under Rule 12.2, together with a motion for leave to proceed

in forma pauperis, a copy of which shall precede and be attached to

each copy of the brief in opposition. If the petitioner is

proceeding in forma pauperis, the respondent may file an original

and 10 copies of a brief in opposition prepared as required by Rule

33.2. Whether prepared under Rule 33.1 or Rule 33.2, the brief in

opposition shall comply with the requirements of Rule 24 governing

a respondent's brief, except that no summary of the argument is

required. A brief in opposition may not be joined with any other

pleading, except that any motion for leave to proceed in forma

pauperis shall be attached. The brief in opposition shall be served

as required by Rule 29.

4. No motion by a respondent to dismiss a petition for a writ of

certiorari may be filed. Any objections to the jurisdiction of the

Court to grant a petition for a writ of certiorari shall be

included in the brief in opposition.

5. The Clerk will distribute the petition to the Court for its

consideration upon receiving an express waiver of the right to file

a brief in opposition, or, if no waiver or brief in opposition is

filed, upon the expiration of the time allowed for filing. If a

brief in opposition is timely filed, the Clerk will distribute the

petition, brief in opposition, and any reply brief to the Court for

its consideration no less than 10 days after the brief in

opposition is filed.

6. Any petitioner may file a reply brief addressed to new points

raised in the brief in opposition, but distribution and

consideration by the Court under paragraph 5 of this Rule will not

be deferred pending its receipt. Forty copies shall be filed,

except that petitioner proceeding in forma pauperis under Rule 39,

including an inmate of an institution, shall file the number of

copies required for a petition by such a person under Rule 12.2.

The reply brief shall be served as required by Rule 29.

7. If a cross-petition for a writ of certiorari has been

docketed, distribution of both petitions will be deferred until the

cross-petition is due for distribution under this Rule.

8. Any party may file a supplemental brief at any time while a

petition for a writ of certiorari is pending, calling attention to

new cases, new legislation, or other intervening matter not

available at the time of the party's last filing. A supplemental

brief shall be restricted to new matter and shall follow, insofar

as applicable, the form for a brief in opposition prescribed by

this Rule. Forty copies shall be filed, except that a party

proceeding in forma pauperis under Rule 39, including an inmate of

an institution, shall file the number of copies required for a

petition by such a person under Rule 12.2. The supplemental brief

shall be served as required by Rule 29.

-End-

-CITE-

28 USC APPENDIX Rule 16 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART III. JURISDICTION ON WRIT OF CERTIORARI

-HEAD-

Rule 16. Disposition of a Petition for a Writ of Certiorari

-STATUTE-

1. After considering the documents distributed under Rule 15, the

Court will enter an appropriate order. The order may be a summary

disposition on the merits.

2. Whenever the Court grants a petition for a writ of certiorari,

the Clerk will prepare, sign, and enter an order to that effect and

will notify forthwith counsel of record and the court whose

judgment is to be reviewed. The case then will be scheduled for

briefing and oral argument. If the record has not previously been

filed in this Court, the Clerk will request the clerk of the court

having possession of the record to certify and transmit it. A

formal writ will not issue unless specially directed.

3. Whenever the Court denies a petition for a writ of certiorari,

the Clerk will prepare, sign, and enter an order to that effect and

will notify forthwith counsel of record and the court whose

judgment was sought to be reviewed. The order of denial will not be

suspended pending disposition of a petition for rehearing except by

order of the Court or a Justice.

-End-

-CITE-

28 USC APPENDIX PART IV. OTHER JURISDICTION 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART IV. OTHER JURISDICTION

-HEAD-

PART IV. OTHER JURISDICTION

-End-

-CITE-

28 USC APPENDIX Rule 17 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART IV. OTHER JURISDICTION

-HEAD-

Rule 17. Procedure in an Original Action

-STATUTE-

1. This Rule applies only to an action invoking the Court's

original jurisdiction under Article III of the Constitution of the

United States. See also 28 U.S.C. Sec. 1251 and U.S. Const., Amdt.

11. A petition for an extraordinary writ in aid of the Court's

appellate jurisdiction shall be filed as provided in Rule 20.

2. The form of pleadings and motions prescribed by the Federal

Rules of Civil Procedure is followed. In other respects, those

Rules and the Federal Rules of Evidence may be taken as guides.

3. The initial pleading shall be preceded by a motion for leave

to file, and may be accompanied by a brief in support of the

motion. Forty copies of each document shall be filed, with proof of

service. Service shall be as required by Rule 29, except that when

an adverse party is a State, service shall be made on both the

Governor and the Attorney General of that State.

4. The case will be placed on the docket when the motion for

leave to file and the initial pleading are filed with the Clerk.

The Rule 38(a) docket fee shall be paid at that time.

5. No more than 60 days after receiving the motion for leave to

file and the initial pleading, an adverse party shall file 40

copies of any brief in opposition to the motion, with proof of

service as required by Rule 29. The Clerk will distribute the filed

documents to the Court for its consideration upon receiving an

express waiver of the right to file a brief in opposition, or, if

no waiver or brief is filed, upon the expiration of the time

allowed for filing. If a brief in opposition is timely filed, the

Clerk will distribute the filed documents to the Court for its

consideration no less than 10 days after the brief in opposition is

filed. A reply brief may be filed, but consideration of the case

will not be deferred pending its receipt. The Court thereafter may

grant or deny the motion, set it for oral argument, direct that

additional documents be filed, or require that other proceedings be

conducted.

6. A summons issued out of this Court shall be served on the

defendant 60 days before the return day specified therein. If the

defendant does not respond by the return day, the plaintiff may

proceed ex parte.

7. Process against a State issued out of this Court shall be

served on both the Governor and the Attorney General of that State.

-REFTEXT-

REFERENCES IN TEXT

Federal Rules of Civil Procedure and Federal Rules of Evidence,

referred to in par. 2, are set out in this Appendix.

-End-

-CITE-

28 USC APPENDIX Rule 18 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART IV. OTHER JURISDICTION

-HEAD-

Rule 18. Appeal from a United States District Court

-STATUTE-

1. When a direct appeal from a decision of a United States

district court is authorized by law, the appeal is commenced by

filing a notice of appeal with the clerk of the district court

within the time provided by law after entry of the judgment sought

to be reviewed. The time to file may not be extended. The notice of

appeal shall specify the parties taking the appeal, designate the

judgment, or part thereof, appealed from and the date of its entry,

and specify the statute or statutes under which the appeal is

taken. A copy of the notice of appeal shall be served on all

parties to the proceeding as required by Rule 29, and proof of

service shall be filed in the district court together with the

notice of appeal.

2. All parties to the proceeding in the district court are deemed

parties entitled to file documents in this Court, but a party

having no interest in the outcome of the appeal may so notify the

Clerk of this Court and shall serve a copy of the notice on all

other parties. Parties interested jointly, severally, or otherwise

in the judgment may appeal separately, or any two or more may join

in an appeal. When two or more judgments involving identical or

closely related questions are sought to be reviewed on appeal from

the same court, a notice of appeal for each judgment shall be filed

with the clerk of the district court, but a single jurisdictional

statement covering all the judgments suffices. Parties who file no

document will not qualify for any relief from this Court.

3. No more than 60 days after filing the notice of appeal in the

district court, the appellant shall file 40 copies of a

jurisdictional statement and shall pay the Rule 38 docket fee,

except that an appellant proceeding in forma pauperis under Rule

39, including an inmate of an institution, shall file the number of

copies required for a petition by such a person under Rule 12.2,

together with a motion for leave to proceed in forma pauperis, a

copy of which shall precede and be attached to each copy of the

jurisdictional statement. The jurisdictional statement shall

follow, insofar as applicable, the form for a petition for a writ

of certiorari prescribed by Rule 14, and shall be served as

required by Rule 29. The case will then be placed on the docket. It

is the appellant's duty to notify all appellees promptly, on a form

supplied by the Clerk, of the date of filing, the date the case was

placed on the docket, and the docket number of the case. The notice

shall be served as required by Rule 29. The appendix shall include

a copy of the notice of appeal showing the date it was filed in the

district court. For good cause, a Justice may extend the time to

file a jurisdictional statement for a period not exceeding 60 days.

An application to extend the time to file a jurisdictional

statement shall set out the basis for jurisdiction in this Court;

identify the judgment sought to be reviewed; include a copy of the

opinion, any order respecting rehearing, and the notice of appeal;

and set out specific reasons why an extension of time is justified.

For the time and manner of presenting the application, see Rules

21, 22, and 30. An application to extend the time to file a

jurisdictional statement is not favored.

4. No more than 30 days after a case has been placed on the

docket, an appellee seeking to file a conditional cross-appeal

(i.e., a cross-appeal that otherwise would be untimely) shall file,

with proof of service as required by Rule 29, a jurisdictional

statement that complies in all respects (including number of copies

filed) with paragraph 3 of this Rule, except that material already

reproduced in the appendix to the opening jurisdictional statement

need not be reproduced again. A cross-appealing appellee shall pay

the Rule 38 docket fee or submit a motion for leave to proceed in

forma pauperis. The cover of the cross-appeal shall indicate

clearly that it is a conditional cross-appeal. The cross-appeal

then will be placed on the docket. It is the cross-appellant's duty

to notify all cross-appellees promptly, on a form supplied by the

Clerk, of the date of filing, the date the cross-appeal was placed

on the docket, and the docket number of the cross-appeal. The

notice shall be served as required by Rule 29. A cross-appeal may

not be joined with any other pleading, except that any motion for

leave to proceed in forma pauperis shall be attached. The time to

file a cross-appeal will not be extended.

5. After a notice of appeal has been filed in the district court,

but before the case is placed on this Court's docket, the parties

may dismiss the appeal by stipulation filed in the district court,

or the district court may dismiss the appeal on the appellant's

motion, with notice to all parties. If a notice of appeal has been

filed, but the case has not been placed on this Court's docket

within the time prescribed for docketing, the district court may

dismiss the appeal on the appellee's motion, with notice to all

parties, and may make any just order with respect to costs. If the

district court has denied the appellee's motion to dismiss the

appeal, the appellee may move this Court to docket and dismiss the

appeal by filing an original and 10 copies of a motion presented in

conformity with Rules 21 and 33.2. The motion shall be accompanied

by proof of service as required by Rule 29, and by a certificate

from the clerk of the district court, certifying that a notice of

appeal was filed and that the appellee's motion to dismiss was

denied. The appellant may not thereafter file a jurisdictional

statement without special leave of the Court, and the Court may

allow costs against the appellant.

6. Within 30 days after the case is placed on this Court's

docket, the appellee may file a motion to dismiss, to affirm, or in

the alternative to affirm or dismiss. Forty copies of the motion

shall be filed, except that an appellee proceeding in forma

pauperis under Rule 39, including an inmate of an institution,

shall file the number of copies required for a petition by such a

person under Rule 12.2, together with a motion for leave to proceed

in forma pauperis, a copy of which shall precede and be attached to

each copy of the motion to dismiss, to affirm, or in the

alternative to affirm or dismiss. The motion shall follow, insofar

as applicable, the form for a brief in opposition prescribed by

Rule 15, and shall comply in all respects with Rule 21.

7. The Clerk will distribute the jurisdictional statement to the

Court for its consideration upon receiving an express waiver of the

right to file a motion to dismiss or to affirm or, if no waiver or

motion is filed, upon the expiration of the time allowed for

filing. If a motion to dismiss or to affirm is timely filed, the

Clerk will distribute the jurisdictional statement, motion, and any

brief opposing the motion to the Court for its consideration no

less than 10 days after the motion is filed.

8. Any appellant may file a brief opposing a motion to dismiss or

to affirm, but distribution and consideration by the Court under

paragraph 7 of this Rule will not be deferred pending its receipt.

Forty copies shall be filed, except that an appellant proceeding in

forma pauperis under Rule 39, including an inmate of an

institution, shall file the number of copies required for a

petition by such a person under Rule 12.2. The brief shall be

served as required by Rule 29.

9. If a cross-appeal has been docketed, distribution of both

jurisdictional statements will be deferred until the cross-appeal

is due for distribution under this Rule.

10. Any party may file a supplemental brief at any time while a

jurisdictional statement is pending, calling attention to new

cases, new legislation, or other intervening matter not available

at the time of the party's last filing. A supplemental brief shall

be restricted to new matter and shall follow, insofar as

applicable, the form for a brief in opposition prescribed by Rule

15. Forty copies shall be filed, except that a party proceeding in

forma pauperis under Rule 39, including an inmate of an

institution, shall file the number of copies required for a

petition by such a person under Rule 12.2. The supplemental brief

shall be served as required by Rule 29.

11. The clerk of the district court shall retain possession of

the record until notified by the Clerk of this Court to certify and

transmit it. See Rule 12.7.

12. After considering the documents distributed under this Rule,

the Court may dispose summarily of the appeal on the merits, note

probable jurisdiction, or postpone consideration of jurisdiction

until a hearing of the case on the merits. If not disposed of

summarily, the case stands for briefing and oral argument on the

merits. If consideration of jurisdiction is postponed, counsel, at

the outset of their briefs and at oral argument, shall address the

question of jurisdiction. If the record has not previously been

filed in this Court, the Clerk of this Court will request the clerk

of the court in possession of the record to certify and transmit

it.

13. If the Clerk determines that a jurisdictional statement

submitted timely and in good faith is in a form that does not

comply with this Rule or with Rule 33 or Rule 34, the Clerk will

return it with a letter indicating the deficiency. If a corrected

jurisdictional statement is received no more than 60 days after the

date of the Clerk's letter, its filing will be deemed timely.

-End-

-CITE-

28 USC APPENDIX Rule 19 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART IV. OTHER JURISDICTION

-HEAD-

Rule 19. Procedure on a Certified Question

-STATUTE-

1. A United States court of appeals may certify to this Court a

question or proposition of law on which it seeks instruction for

the proper decision of a case. The certificate shall contain a

statement of the nature of the case and the facts on which the

question or proposition of law arises. Only questions or

propositions of law may be certified, and they shall be stated

separately and with precision. The certificate shall be prepared as

required by Rule 33.2 and shall be signed by the clerk of the court

of appeals.

2. When a question is certified by a United States court of

appeals, this Court, on its own motion or that of a party, may

consider and decide the entire matter in controversy. See 28 U.S.C.

Sec. 1254(2).

3. When a question is certified, the Clerk will notify the

parties and docket the case. Counsel shall then enter their

appearances. After docketing, the Clerk will submit the certificate

to the Court for a preliminary examination to determine whether the

case should be briefed, set for argument, or dismissed. No brief

may be filed until the preliminary examination of the certificate

is completed.

4. If the Court orders the case briefed or set for argument, the

parties will be notified and permitted to file briefs. The Clerk of

this Court then will request the clerk of the court in possession

of the record to certify and transmit it. Any portion of the record

to which the parties wish to direct the Court's particular

attention should be printed in a joint appendix, prepared in

conformity with Rule 26 by the appellant or petitioner in the court

of appeals, but the fact that any part of the record has not been

printed does not prevent the parties or the Court from relying on

it.

5. A brief on the merits in a case involving a certified question

shall comply with Rules 24, 25, and 33.1, except that the brief for

the party who is the appellant or petitioner below shall be filed

within 45 days of the order requiring briefs or setting the case

for argument.

-End-

-CITE-

28 USC APPENDIX Rule 20 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART IV. OTHER JURISDICTION

-HEAD-

Rule 20. Procedure on a Petition for an Extraordinary Writ

-STATUTE-

1. Issuance by the Court of an extraordinary writ authorized by

28 U.S.C. Sec. 1651(a) is not a matter of right, but of discretion

sparingly exercised. To justify the granting of any such writ, the

petition must show that the writ will be in aid of the Court's

appellate jurisdiction, that exceptional circumstances warrant the

exercise of the Court's discretionary powers, and that adequate

relief cannot be obtained in any other form or from any other

court.

2. A petition seeking a writ authorized by 28 U.S.C. Sec.

1651(a), Sec. 2241, or Sec. 2254(a) shall be prepared in all

respects as required by Rules 33 and 34. The petition shall be

captioned "In re [name of petitioner]" and shall follow, insofar as

applicable, the form of a petition for a writ of certiorari

prescribed by Rule 14. All contentions in support of the petition

shall be included in the petition. The case will be placed on the

docket when 40 copies of the petition are filed with the Clerk and

the docket fee is paid, except that a petitioner proceeding in

forma pauperis under Rule 39, including an inmate of an

institution, shall file the number of copies required for a

petition by such a person under Rule 12.2, together with a motion

for leave to proceed in forma pauperis, a copy of which shall

precede and be attached to each copy of the petition. The petition

shall be served as required by Rule 29 (subject to subparagraph

4(b) of this Rule).

3. (a) A petition seeking a writ of prohibition, a writ of

mandamus, or both in the alternative shall state the name and

office or function of every person against whom relief is sought

and shall set out with particularity why the relief sought is not

available in any other court. A copy of the judgment with respect

to which the writ is sought, including any related opinion, shall

be appended to the petition together with any other document

essential to understanding the petition.

(b) The petition shall be served on every party to the proceeding

with respect to which relief is sought. Within 30 days after the

petition is placed on the docket, a party shall file 40 copies of

any brief or briefs in opposition thereto, which shall comply fully

with Rule 15. If a party named as a respondent does not wish to

respond to the petition, that party may so advise the Clerk and all

other parties by letter. All persons served are deemed respondents

for all purposes in the proceedings in this Court.

4. (a) A petition seeking a writ of habeas corpus shall comply

with the requirements of 28 U.S.C. Secs. 2241 and 2242, and in

particular with the provision in the last paragraph of Sec. 2242,

which requires a statement of the "reasons for not making

application to the district court of the district in which the

applicant is held." If the relief sought is from the judgment of a

state court, the petition shall set out specifically how and where

the petitioner has exhausted available remedies in the state courts

or otherwise comes within the provisions of 28 U.S.C. Sec. 2254(b).

To justify the granting of a writ of habeas corpus, the petitioner

must show that exceptional circumstances warrant the exercise of

the Court's discretionary powers, and that adequate relief cannot

be obtained in any other form or from any other court. This writ is

rarely granted.

(b) Habeas corpus proceedings, except in capital cases, are ex

parte, unless the Court requires the respondent to show cause why

the petition for a writ of habeas corpus should not be granted. A

response, if ordered, or in a capital case, shall comply fully with

Rule 15. Neither the denial of the petition, without more, nor an

order of transfer to a district court under the authority of 28

U.S.C. Sec. 2241(b), is an adjudication on the merits, and

therefore does not preclude further application to another court

for the relief sought.

5. The Clerk will distribute the documents to the Court for its

consideration when a brief in opposition under subparagraph 3(b) of

this Rule has been filed, when a response under subparagraph 4(b)

has been ordered and filed, when the time to file has expired, or

when the right to file has been expressly waived.

6. If the Court orders the case set for argument, the Clerk will

notify the parties whether additional briefs are required, when

they shall be filed, and, if the case involves a petition for a

common-law writ of certiorari, that the parties shall prepare a

joint appendix in accordance with Rule 26.

-End-

-CITE-

28 USC APPENDIX PART V. MOTIONS AND APPLICATIONS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART V. MOTIONS AND APPLICATIONS

-HEAD-

PART V. MOTIONS AND APPLICATIONS

-End-

-CITE-

28 USC APPENDIX Rule 21 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART V. MOTIONS AND APPLICATIONS

-HEAD-

Rule 21. Motions to the Court

-STATUTE-

1. Every motion to the Court shall clearly state its purpose and

the facts on which it is based and may present legal argument in

support thereof. No separate brief may be filed. A motion should be

concise and shall comply with any applicable page limits. Rule 22

governs an application addressed to a single Justice.

2. (a) A motion in any action within the Court's original

jurisdiction shall comply with Rule 17.3.

(b) A motion to dismiss as moot (or a suggestion of mootness), a

motion for leave to file a brief as amicus curiae, and any motion

the granting of which would dispose of the entire case or would

affect the final judgment to be entered (other than a motion to

docket and dismiss under Rule 18.5 or a motion for voluntary

dismissal under Rule 46) shall be prepared as required by Rule

33.1, and 40 copies shall be filed, except that a movant proceeding

in forma pauperis under Rule 39, including an inmate of an

institution, shall file a motion prepared as required by Rule 33.2,

and shall file the number of copies required for a petition by such

a person under Rule 12.2. The motion shall be served as required by

Rule 29.

(c) Any other motion to the Court shall be prepared as required

by Rule 33.2; the moving party shall file an original and 10

copies. The Court subsequently may order the moving party to

prepare the motion as required by Rule 33.1; in that event, the

party shall file 40 copies.

3. A motion to the Court shall be filed with the Clerk and shall

be accompanied by proof of service as required by Rule 29. No

motion may be presented in open Court, other than a motion for

admission to the Bar, except when the proceeding to which it refers

is being argued. Oral argument on a motion will not be permitted

unless the Court so directs.

4. Any response to a motion shall be filed as promptly as

possible considering the nature of the relief sought and any

asserted need for emergency action, and, in any event, within 10

days of receipt, unless the Court or a Justice, or the Clerk under

Rule 30.4, orders otherwise. A response to a motion prepared as

required by Rule 33.1, except a response to a motion for leave to

file an amicus curiae brief (see Rule 37.5), shall be prepared in

the same manner if time permits. In an appropriate case, the Court

may act on a motion without waiting for a response.

-End-

-CITE-

28 USC APPENDIX Rule 22 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART V. MOTIONS AND APPLICATIONS

-HEAD-

Rule 22. Applications to Individual Justices

-STATUTE-

1. An application addressed to an individual Justice shall be

filed with the Clerk, who will transmit it promptly to the Justice

concerned if an individual Justice has authority to grant the

sought relief.

2. The original and two copies of any application addressed to an

individual Justice shall be prepared as required by Rule 33.2, and

shall be accompanied by proof of service as required by Rule 29.

3. An application shall be addressed to the Justice allotted to

the Circuit from which the case arises. When the Circuit Justice is

unavailable for any reason, the application addressed to that

Justice will be distributed to the Justice then available who is

next junior to the Circuit Justice; the turn of the Chief Justice

follows that of the most junior Justice.

4. A Justice denying an application will note the denial thereon.

Thereafter, unless action thereon is restricted by law to the

Circuit Justice or is untimely under Rule 30.2, the party making an

application, except in the case of an application for an extension

of time, may renew it to any other Justice, subject to the

provisions of this Rule. Except when the denial is without

prejudice, a renewed application is not favored. Renewed

application is made by a letter to the Clerk, designating the

Justice to whom the application is to be directed, and accompanied

by 10 copies of the original application and proof of service as

required by Rule 29.

5. A Justice to whom an application for a stay or for bail is

submitted may refer it to the Court for determination.

6. The Clerk will advise all parties concerned, by appropriately

speedy means, of the disposition made of an application.

-End-

-CITE-

28 USC APPENDIX Rule 23 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART V. MOTIONS AND APPLICATIONS

-HEAD-

Rule 23. Stays

-STATUTE-

1. A stay may be granted by a Justice as permitted by law.

2. A party to a judgment sought to be reviewed may present to a

Justice an application to stay the enforcement of that judgment.

See 28 U.S.C. Sec. 2101(f).

3. An application for a stay shall set out with particularity why

the relief sought is not available from any other court or judge.

Except in the most extraordinary circumstances, an application for

a stay will not be entertained unless the relief requested was

first sought in the appropriate court or courts below or from a

judge or judges thereof. An application for a stay shall identify

the judgment sought to be reviewed and have appended thereto a copy

of the order and opinion, if any, and a copy of the order, if any,

of the court or judge below denying the relief sought, and shall

set out specific reasons why a stay is justified. The form and

content of an application for a stay are governed by Rules 22 and

33.2.

4. A judge, court, or Justice granting an application for a stay

pending review by this Court may condition the stay on the filing

of a supersedeas bond having an approved surety or sureties. The

bond will be conditioned on the satisfaction of the judgment in

full, together with any costs, interest, and damages for delay that

may be awarded. If a part of the judgment sought to be reviewed has

already been satisfied, or is otherwise secured, the bond may be

conditioned on the satisfaction of the part of the judgment not

otherwise secured or satisfied, together with costs, interest, and

damages.

-End-

-CITE-

28 USC APPENDIX PART VI. BRIEFS ON THE MERITS

AND ORAL ARGUMENT 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT

-HEAD-

PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT

-End-

-CITE-

28 USC APPENDIX Rule 24 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT

-HEAD-

Rule 24. Briefs on the Merits: In General

-STATUTE-

1. A brief on the merits for a petitioner or an appellant shall

comply in all respects with Rules 33.1 and 34 and shall contain in

the order here indicated:

(a) The questions presented for review under Rule 14.1(a). The

questions shall be set out on the first page following the cover,

and no other information may appear on that page. The phrasing of

the questions presented need not be identical with that in the

petition for a writ of certiorari or the jurisdictional

statement, but the brief may not raise additional questions or

change the substance of the questions already presented in those

documents. At its option, however, the Court may consider a plain

error not among the questions presented but evident from the

record and otherwise within its jurisdiction to decide.

(b) A list of all parties to the proceeding in the court whose

judgment is under review (unless the caption of the case in this

Court contains the names of all parties). Any amended corporate

disclosure statement as required by Rule 29.6 shall be placed

here.

(c) If the brief exceeds five pages, a table of contents and a

table of cited authorities.

(d) Citations of the official and unofficial reports of the

opinions and orders entered in the case by courts and

administrative agencies.

(e) A concise statement of the basis for jurisdiction in this

Court, including the statutory provisions and time factors on

which jurisdiction rests.

(f) The constitutional provisions, treaties, statutes,

ordinances, and regulations involved in the case, set out

verbatim with appropriate citation. If the provisions involved

are lengthy, their citation alone suffices at this point, and

their pertinent text, if not already set out in the petition for

a writ of certiorari, jurisdictional statement, or an appendix to

either document, shall be set out in an appendix to the brief.

(g) A concise statement of the case, setting out the facts

material to the consideration of the questions presented, with

appropriate references to the joint appendix, e.g., App. 12, or

to the record, e.g., Record 12.

(h) A summary of the argument, suitably paragraphed. The

summary should be a clear and concise condensation of the

argument made in the body of the brief; mere repetition of the

headings under which the argument is arranged is not sufficient.

(i) The argument, exhibiting clearly the points of fact and of

law presented and citing the authorities and statutes relied on.

(j) A conclusion specifying with particularity the relief the

party seeks.

2. A brief on the merits for a respondent or an appellee shall

conform to the foregoing requirements, except that items required

by subparagraphs 1(a), (b), (d), (e), (f), and (g) of this Rule

need not be included unless the respondent or appellee is

dissatisfied with their presentation by the opposing party.

3. A brief on the merits may not exceed the page limitations

specified in Rule 33.1(g). An appendix to a brief may include only

relevant material, and counsel are cautioned not to include in an

appendix arguments or citations that properly belong in the body of

the brief.

4. A reply brief shall conform to those portions of this Rule

applicable to the brief for a respondent or an appellee, but, if

appropriately divided by topical headings, need not contain a

summary of the argument.

5. A reference to the joint appendix or to the record set out in

any brief shall indicate the appropriate page number. If the

reference is to an exhibit, the page numbers at which the exhibit

appears, at which it was offered in evidence, and at which it was

ruled on by the judge shall be indicated, e.g., Pl. Exh. 14, Record

199, 2134.

6. A brief shall be concise, logically arranged with proper

headings, and free of irrelevant, immaterial, or scandalous matter.

The Court may disregard or strike a brief that does not comply with

this paragraph.

-End-

-CITE-

28 USC APPENDIX Rule 25 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT

-HEAD-

Rule 25. Briefs on the Merits: Number of Copies and Time to File

-STATUTE-

1. The petitioner or appellant shall file 40 copies of the brief

on the merits within 45 days of the order granting the writ of

certiorari, noting probable jurisdiction, or postponing

consideration of jurisdiction. Any respondent or appellee who

supports the petitioner or appellant shall meet the petitioner's or

appellant's time schedule for filing documents.

2. The respondent or appellee shall file 40 copies of the brief

on the merits within 30 days after receiving the brief for the

petitioner or appellant.

3. The petitioner or appellant shall file 40 copies of the reply

brief, if any, within 30 days after receiving the brief for the

respondent or appellee, but any reply brief must actually be

received by the Clerk not later than one week before the date of

oral argument. Any respondent or appellee supporting the petitioner

or appellant may file a reply brief.

4. The time periods stated in paragraphs 1 and 2 of this Rule may

be extended as provided in Rule 30. An application to extend the

time to file a brief on the merits is not favored. If a case is

advanced for hearing, the time to file briefs on the merits may be

abridged as circumstances require pursuant to an order of the Court

on its own motion or that of a party.

5. A party wishing to present late authorities, newly enacted

legislation, or other intervening matter that was not available in

time to be included in a brief may file 40 copies of a supplemental

brief, restricted to such new matter and otherwise presented in

conformity with these Rules, up to the time the case is called for

oral argument or by leave of the Court thereafter.

6. After a case has been argued or submitted, the Clerk will not

file any brief, except that of a party filed by leave of the Court.

7. The Clerk will not file any brief that is not accompanied by

proof of service as required by Rule 29.

-End-

-CITE-

28 USC APPENDIX Rule 26 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT

-HEAD-

Rule 26. Joint Appendix

-STATUTE-

1. Unless the Clerk has allowed the parties to use the deferred

method described in paragraph 4 of this Rule, the petitioner or

appellant, within 45 days after entry of the order granting the

writ of certiorari, noting probable jurisdiction, or postponing

consideration of jurisdiction, shall file 40 copies of a joint

appendix, prepared as required by Rule 33.1. The joint appendix

shall contain: (1) the relevant docket entries in all the courts

below; (2) any relevant pleadings, jury instructions, findings,

conclusions, or opinions; (3) the judgment, order, or decision

under review; and (4) any other parts of the record that the

parties particularly wish to bring to the Court's attention. Any of

the foregoing items already reproduced in a petition for a writ of

certiorari, jurisdictional statement, brief in opposition to a

petition for a writ of certiorari, motion to dismiss or affirm, or

any appendix to the foregoing, that was prepared as required by

Rule 33.1, need not be reproduced again in the joint appendix. The

petitioner or appellant shall serve three copies of the joint

appendix on each of the other parties to the proceeding as required

by Rule 29.

2. The parties are encouraged to agree on the contents of the

joint appendix. In the absence of agreement, the petitioner or

appellant, within 10 days after entry of the order granting the

writ of certiorari, noting probable jurisdiction, or postponing

consideration of jurisdiction, shall serve on the respondent or

appellee a designation of parts of the record to be included in the

joint appendix. Within 10 days after receiving the designation, a

respondent or appellee who considers the parts of the record so

designated insufficient shall serve on the petitioner or appellant

a designation of additional parts to be included in the joint

appendix, and the petitioner or appellant shall include the parts

so designated. If the Court has permitted the respondent or

appellee to proceed in forma pauperis, the petitioner or appellant

may seek by motion to be excused from printing portions of the

record the petitioner or appellant considers unnecessary. In making

these designations, counsel should include only those materials the

Court should examine; unnecessary designations should be avoided.

The record is on file with the Clerk and available to the Justices,

and counsel may refer in briefs and in oral argument to relevant

portions of the record not included in the joint appendix.

3. When the joint appendix is filed, the petitioner or appellant

immediately shall file with the Clerk a statement of the cost of

printing 50 copies and shall serve a copy of the statement on each

of the other parties as required by Rule 29. Unless the parties

agree otherwise, the cost of producing the joint appendix shall be

paid initially by the petitioner or appellant; but a petitioner or

appellant who considers that parts of the record designated by the

respondent or appellee are unnecessary for the determination of the

issues presented may so advise the respondent or appellee, who then

shall advance the cost of printing the additional parts, unless the

Court or a Justice otherwise fixes the initial allocation of the

costs. The cost of printing the joint appendix is taxed as a cost

in the case, but if a party unnecessarily causes matter to be

included in the joint appendix or prints excessive copies, the

Court may impose these costs on that party.

4. (a) On the parties' request, the Clerk may allow preparation

of the joint appendix to be deferred until after the briefs have

been filed. In that event, the petitioner or appellant shall file

the joint appendix no more than 14 days after receiving the brief

for the respondent or appellee. The provisions of paragraphs 1, 2,

and 3 of this Rule shall be followed, except that the designations

referred to therein shall be made by each party when that party's

brief is served. Deferral of the joint appendix is not favored.

(b) If the deferred method is used, the briefs on the merits may

refer to the pages of the record. In that event, the joint appendix

shall include in brackets on each page thereof the page number of

the record where that material may be found. A party wishing to

refer directly to the pages of the joint appendix may serve and

file copies of its brief prepared as required by Rule 33.2 within

the time provided by Rule 25, with appropriate references to the

pages of the record. In that event, within 10 days after the joint

appendix is filed, copies of the brief prepared as required by Rule

33.1 containing references to the pages of the joint appendix in

place of, or in addition to, the initial references to the pages of

the record, shall be served and filed. No other change may be made

in the brief as initially served and filed, except that

typographical errors may be corrected.

5. The joint appendix shall be prefaced by a table of contents

showing the parts of the record that it contains, in the order in

which the parts are set out, with references to the pages of the

joint appendix at which each part begins. The relevant docket

entries shall be set out after the table of contents, followed by

the other parts of the record in chronological order. When

testimony contained in the reporter's transcript of proceedings is

set out in the joint appendix, the page of the transcript at which

the testimony appears shall be indicated in brackets immediately

before the statement that is set out. Omissions in the transcript

or in any other document printed in the joint appendix shall be

indicated by asterisks. Immaterial formal matters (e.g., captions,

subscriptions, acknowledgments) shall be omitted. A question and

its answer may be contained in a single paragraph.

6. Exhibits designated for inclusion in the joint appendix may be

contained in a separate volume or volumes suitably indexed. The

transcript of a proceeding before an administrative agency, board,

commission, or officer used in an action in a district court or

court of appeals is regarded as an exhibit for the purposes of this

paragraph.

7. The Court, on its own motion or that of a party, may dispense

with the requirement of a joint appendix and may permit a case to

be heard on the original record (with such copies of the record, or

relevant parts thereof, as the Court may require) or on the

appendix used in the court below, if it conforms to the

requirements of this Rule.

8. For good cause, the time limits specified in this Rule may be

shortened or extended by the Court or a Justice, or by the Clerk

under Rule 30.4.

-End-

-CITE-

28 USC APPENDIX Rule 27 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT

-HEAD-

Rule 27. Calendar

-STATUTE-

1. From time to time, the Clerk will prepare a calendar of cases

ready for argument. A case ordinarily will not be called for

argument less than two weeks after the brief on the merits for the

respondent or appellee is due.

2. The Clerk will advise counsel when they are required to appear

for oral argument and will publish a hearing list in advance of

each argument session for the convenience of counsel and the

information of the public.

3. The Court, on its own motion or that of a party, may order

that two or more cases involving the same or related questions be

argued together as one case or on such other terms as the Court may

prescribe.

-End-

-CITE-

28 USC APPENDIX Rule 28 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VI. BRIEFS ON THE MERITS AND ORAL ARGUMENT

-HEAD-

Rule 28. Oral Argument

-STATUTE-

1. Oral argument should emphasize and clarify the written

arguments in the briefs on the merits. Counsel should assume that

all Justices have read the briefs before oral argument. Oral

argument read from a prepared text is not favored.

2. The petitioner or appellant shall open and may conclude the

argument. A cross-writ of certiorari or cross-appeal will be argued

with the initial writ of certiorari or appeal as one case in the

time allowed for that one case, and the Court will advise the

parties who shall open and close.

3. Unless the Court directs otherwise, each side is allowed

one-half hour for argument. Counsel is not required to use all the

allotted time. Any request for additional time to argue shall be

presented by motion under Rule 21 no more than 15 days after the

petitioner's or appellant's brief on the merits is filed, and shall

set out specifically and concisely why the case cannot be presented

within the half-hour limitation. Additional time is rarely

accorded.

4. Only one attorney will be heard for each side, except by leave

of the Court on motion filed no more than 15 days after the

respondent's or appellee's brief on the merits is filed. Any

request for divided argument shall be presented by motion under

Rule 21 and shall set out specifically and concisely why more than

one attorney should be allowed to argue. Divided argument is not

favored.

5. Regardless of the number of counsel participating in oral

argument, counsel making the opening argument shall present the

case fairly and completely and not reserve points of substance for

rebuttal.

6. Oral argument will not be allowed on behalf of any party for

whom a brief has not been filed.

7. By leave of the Court, and subject to paragraph 4 of this

Rule, counsel for an amicus curiae whose brief has been filed as

provided in Rule 37 may argue orally on the side of a party, with

the consent of that party. In the absence of consent, counsel for

an amicus curiae may seek leave of the Court to argue orally by a

motion setting out specifically and concisely why oral argument

would provide assistance to the Court not otherwise available. Such

a motion will be granted only in the most extraordinary

circumstances.

-End-

-CITE-

28 USC APPENDIX PART VII. PRACTICE AND PROCEDURE 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VII. PRACTICE AND PROCEDURE

-HEAD-

PART VII. PRACTICE AND PROCEDURE

-End-

-CITE-

28 USC APPENDIX Rule 29 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VII. PRACTICE AND PROCEDURE

-HEAD-

Rule 29. Filing and Service of Documents; Special Notifications;

Corporate Listing

-STATUTE-

1. Any document required or permitted to be presented to the

Court or to a Justice shall be filed with the Clerk.

2. A document is timely filed if it is received by the Clerk

within the time specified for filing; or if it is sent to the Clerk

through the United States Postal Service by first-class mail

(including express or priority mail), postage prepaid, and bears a

postmark showing that the document was mailed on or before the last

day for filing. Commercial postage meter labels alone are not

acceptable. If submitted by an inmate confined in an institution, a

document is timely filed if it is deposited in the institution's

internal mail system on or before the last day for filing and is

accompanied by a notarized statement or declaration in compliance

with 28 U.S.C. Sec. 1746 setting out the date of deposit and

stating that first-class postage has been prepaid. If the postmark

is missing or not legible, the Clerk will require the person who

mailed the document to submit a notarized statement or declaration

in compliance with 28 U.S.C. Sec. 1746 setting out the details of

the mailing and stating that the mailing took place on a particular

date within the permitted time. A document also is timely filed if

it is forwarded through a private delivery or courier service and

is actually received by the Clerk within the time permitted for

filing.

3. Any document required by these Rules to be served may be

served personally or by mail on each party to the proceeding at or

before the time of filing. If the document has been prepared as

required by Rule 33.1, three copies shall be served on each other

party separately represented in the proceeding. If the document has

been prepared as required by Rule 33.2, service of a single copy on

each other separately represented party suffices. If personal

service is made, it shall consist of delivery at the office of the

counsel of record, either to counsel or to an employee therein. If

service is by mail, it shall consist of depositing the document

with the United States Postal Service, with no less than

first-class postage prepaid, addressed to counsel of record at the

proper post office address. When a party is not represented by

counsel, service shall be made on the party, personally or by mail.

4. (a) If the United States or any federal department, office,

agency, officer, or employee is a party to be served, service shall

be made on the Solicitor General of the United States, Room 5614,

Department of Justice, 950 Pennsylvania Ave., N.W., Washington, DC

20530-0001. When an agency of the United States that is a party is

authorized by law to appear before this Court on its own behalf, or

when an officer or employee of the United States is a party, the

agency, officer, or employee shall be served in addition to the

Solicitor General.

(b) In any proceeding in this Court in which the

constitutionality of an Act of Congress is drawn into question, and

neither the United States nor any federal department, office,

agency, officer, or employee is a party, the initial document filed

in this Court shall recite that 28 U.S.C. Sec. 2403(a) may apply

and shall be served on the Solicitor General of the United States,

Room 5614, Department of Justice, 950 Pennsylvania Ave., N.W.,

Washington, DC 20530-0001. In such a proceeding from any court of

the United States, as defined by 28 U.S.C. Sec. 451, the initial

document also shall state whether that court, pursuant to 28 U.S.C.

Sec. 2403(a), certified to the Attorney General the fact that the

constitutionality of an Act of Congress was drawn into question.

See Rule 14.1(e)(v).

(c) In any proceeding in this Court in which the

constitutionality of any statute of a State is drawn into question,

and neither the State nor any agency, officer, or employee thereof

is a party, the initial document filed in this Court shall recite

that 28 U.S.C. Sec. 2403(b) may apply and shall be served on the

Attorney General of that State. In such a proceeding from any court

of the United States, as defined by 28 U.S.C. Sec. 451, the initial

document also shall state whether that court, pursuant to 28 U.S.C.

Sec. 2403(b), certified to the State Attorney General the fact that

the constitutionality of a statute of that State was drawn into

question. See Rule 14.1(e)(v).

5. Proof of service, when required by these Rules, shall

accompany the document when it is presented to the Clerk for filing

and shall be separate from it. Proof of service shall contain, or

be accompanied by, a statement that all parties required to be

served have been served, together with a list of the names,

addresses, and telephone numbers of counsel indicating the name of

the party or parties each counsel represents. It is not necessary

that service on each party required to be served be made in the

same manner or evidenced by the same proof. Proof of service may

consist of any one of the following:

(a) an acknowledgment of service, signed by counsel of record

for the party served, and bearing the address and telephone

number of such counsel;

(b) a certificate of service, reciting the facts and

circumstances of service in compliance with the appropriate

paragraph or paragraphs of this Rule, and signed by a member of

the Bar of this Court representing the party on whose behalf

service is made or by an attorney appointed to represent that

party under the Criminal Justice Act of 1964, see 18 U.S.C. Sec.

3006A(d)(6), or under any other applicable federal statute; or

(c) a notarized affidavit or declaration in compliance with 28

U.S.C. Sec. 1746, reciting the facts and circumstances of service

in accordance with the appropriate paragraph or paragraphs of

this Rule, whenever service is made by any person not a member of

the Bar of this Court and not an attorney appointed to represent

a party under the Criminal Justice Act of 1964, see 18 U.S.C.

Sec. 3006A(d)(6), or under any other applicable federal statute.

6. Every document, except a joint appendix or amicus curiae

brief, filed by or on behalf of a nongovernmental corporation shall

contain a corporate disclosure statement identifying the parent

corporations and listing any publicly held company that owns 10% or

more of the corporation's stock. If there is no parent or publicly

held company owning 10% or more of the corporation's stock, a

notation to this effect shall be included in the document. If a

statement has been included in a document filed earlier in the

case, reference may be made to the earlier document (except when

the earlier statement appeared in a document prepared under Rule

33.2), and only amendments to the statement to make it current need

be included in the document being filed.

-REFTEXT-

REFERENCES IN TEXT

The Criminal Justice Act of 1964, referred to in par. 5(b) and

(c), is Pub. L. 88-455, Aug. 20, 1964, 78 Stat. 552, as amended,

which enacted section 3006A of Title 18, Crimes and Criminal

Procedure, and provisions set out as notes under section 3006A of

Title 18. For complete classification of this Act to the Code, see

Short Title note set out under section 3006A of Title 18 and

Tables.

-End-

-CITE-

28 USC APPENDIX Rule 30 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VII. PRACTICE AND PROCEDURE

-HEAD-

Rule 30. Computation and Extension of Time

-STATUTE-

1. In the computation of any period of time prescribed or allowed

by these Rules, by order of the Court, or by an applicable statute,

the day of the act, event, or default from which the designated

period begins to run is not included. The last day of the period

shall be included, unless it is a Saturday, Sunday, federal legal

holiday listed in 5 U.S.C. Sec. 6103, or day on which the Court

building is closed by order of the Court or the Chief Justice, in

which event the period shall extend until the end of the next day

that is not a Saturday, Sunday, federal legal holiday, or day on

which the Court building is closed.

2. Whenever a Justice or the Clerk is empowered by law or these

Rules to extend the time to file any document, an application

seeking an extension shall be filed within the period sought to be

extended. An application to extend the time to file a petition for

a writ of certiorari or to file a jurisdictional statement must be

received by the Clerk at least 10 days before the specified final

filing date as computed under these Rules; if received less than 10

days before the final filing date, such application will not be

granted except in the most extraordinary circumstances.

3. An application to extend the time to file a petition for a

writ of certiorari, to file a jurisdictional statement, to file a

reply brief on the merits, or to file a petition for rehearing

shall be made to an individual Justice and presented and served on

all other parties as provided by Rule 22. Once denied, such an

application may not be renewed.

4. An application to extend the time to file any document or

paper other than those specified in paragraph 3 of this Rule may be

presented in the form of a letter to the Clerk setting out specific

reasons why an extension of time is justified. The letter shall be

served on all other parties as required by Rule 29. The application

may be acted on by the Clerk in the first instance, and any party

aggrieved by the Clerk's action may request that the application be

submitted to a Justice or to the Court. The Clerk will report

action under this paragraph to the Court as instructed.

-End-

-CITE-

28 USC APPENDIX Rule 31 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VII. PRACTICE AND PROCEDURE

-HEAD-

Rule 31. Translations

-STATUTE-

Whenever any record to be transmitted to this Court contains

material written in a foreign language without a translation made

under the authority of the lower court, or admitted to be correct,

the clerk of the court transmitting the record shall advise the

Clerk of this Court immediately so that this Court may order that a

translation be supplied and, if necessary, printed as part of the

joint appendix.

-End-

-CITE-

28 USC APPENDIX Rule 32 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VII. PRACTICE AND PROCEDURE

-HEAD-

Rule 32. Models, Diagrams, and Exhibits

-STATUTE-

1. Models, diagrams, and exhibits, and other items forming part

of the evidence taken in a case and brought to this Court for its

inspection shall be placed in the custody of the Clerk at least two

weeks before the case is to be heard or submitted.

2. All models, diagrams, exhibits, and other items placed in the

custody of the Clerk shall be removed by the parties no more than

40 days after the case is decided. If this is not done, the Clerk

will notify counsel to remove the articles forthwith. If they are

not removed within a reasonable time thereafter, the Clerk will

destroy them or dispose of them in any other appropriate way.

-End-

-CITE-

28 USC APPENDIX Rule 33 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VII. PRACTICE AND PROCEDURE

-HEAD-

Rule 33. Document Preparation: Booklet Format; 8 1/2 - by 11-Inch

Paper Format

-STATUTE-

1. Booklet Format: (a) Except for a document expressly permitted

by these Rules to be submitted on 8 1/2 - by 11-inch paper, see,

e.g., Rules 21, 22, and 39, every document filed with the Court

shall be prepared in a 6 1/8 - by 9 1/4 -inch booklet format using

a standard typesetting process (e.g., hot metal, photocomposition,

or computer typesetting) to produce text printed in typographic (as

opposed to typewriter) characters. The process used must produce a

clear, black image on white paper. The text must be reproduced with

a clarity that equals or exceeds the output of a laser printer.

(b) The text of every booklet-format document, including any

appendix thereto, shall be typeset in Roman 11-point or larger type

with 2-point or more leading between lines. The typeface should be

similar to that used in current volumes of the United States

Reports. Increasing the amount of text by using condensed or

thinner typefaces, or by reducing the space between letters, is

strictly prohibited. Type size and face shall be consistent

throughout. Quotations in excess of 50 words shall be indented. The

typeface of footnotes shall be 9-point or larger with 2-point or

more leading between lines. The text of the document must appear on

both sides of the page.

(c) Every booklet-format document shall be produced on paper that

is opaque, unglazed, and not less than 60 pounds in weight, and

shall have margins of at least three-fourths of an inch on all

sides. The text field, including footnotes, may not exceed 4 1/8

by 7 1/8 inches. The document shall be bound firmly in at least

two places along the left margin (saddle stitch or perfect binding

preferred) so as to permit easy opening, and no part of the text

should be obscured by the binding. Spiral, plastic, metal, or

string bindings may not be used. Copies of patent documents, except

opinions, may be duplicated in such size as is necessary in a

separate appendix.

(d) Every booklet-format document, shall comply with the page

limits shown on the chart in subparagraph 1(g) of this Rule. The

page limits do not include the questions presented, the list of

parties and the corporate disclosure statement, the table of

contents, the table of cited authorities, or any appendix. Verbatim

quotations required under Rule 14.1(f), if set out in the text of a

brief rather than in the appendix, are also excluded. For good

cause, the Court or a Justice may grant leave to file a document in

excess of the page limits, but application for such leave is not

favored. An application to exceed page limits shall comply with

Rule 22 and must be received by the Clerk at least 15 days before

the filing date of the document in question, except in the most

extraordinary circumstances.

(e) Every booklet-format document, shall have a suitable cover

consisting of 65-pound weight paper in the color indicated on the

chart in subparagraph 1(g) of this Rule. If a separate appendix to

any document is filed, the color of its cover shall be the same as

that of the cover of the document it supports. The Clerk will

furnish a color chart upon request. Counsel shall ensure that there

is adequate contrast between the printing and the color of the

cover. A document filed by the United States, or by any other

federal party represented by the Solicitor General, shall have a

gray cover. A joint appendix, answer to a bill of complaint, motion

for leave to intervene, and any other document not listed in

subparagraph 1(g) of this Rule shall have a tan cover.

(f) Forty copies of a booklet-format document shall be filed.

(g) Page limits and cover colors for booklet-format documents are

as follows:

Type of Document Page Color

Limits of

Cover

--------------------------------------------------------------------

(i) Petition for a Writ of Certiorari

(Rule 14); Motion for Leave to File a

Bill of Complaint and Brief in Support

(Rule 17.3); Jurisdictional Statement

(Rule 18.3); Petition for an

Extraordinary Writ (Rule 20.2)

30

white

(ii) Brief in Opposition (Rule 15.3); Brief

in Opposition to Motion for Leave to

File an Original Action (Rule 17.5);

Motion to Dismiss or Affirm (Rule

18.6); Brief in Opposition to Mandamus

or Prohibition (Rule 20.3(b));

Response to a Petition for Habeas

Corpus (Rule 20.4)

30

orange

(iii) Reply to Brief in Opposition (Rules

15.6 and 17.5); Brief Opposing a

Motion to Dismiss or Affirm (Rule 18.8)

10

tan

(iv) Supplemental Brief (Rules 15.8, 17,

18.10, and 25.5)

10

tan

(v) Brief on the Merits for Petitioner or

Appellant (Rule 24); Exceptions by

Plaintiff to Report of Special Master

(Rule 17)

50

light

blue

(vi) Brief on the Merits for Respondent or

Appellee (Rule 24.2); Brief on the

Merits for Respondent or Appellee

Supporting Petitioner or Appellant

(Rule 12.6); Exceptions by Party Other

Than Plaintiff to Report of Special

Master (Rule 17)

50

light

red

(vii) Reply Brief on the Merits (Rule 24.4)

20

yellow

(viii) Reply to Plaintiff's Exceptions to

Report of Special Master (Rule 17)

50

orange

(ix) Reply to Exceptions by Party Other

Than Plaintiff to Report of Special

Master (Rule 17)

50

yellow

(x) Brief for an Amicus Curiae at the

Petition Stage (Rule 37.2)

20

cream

(xi) Brief for an Amicus Curiae in Support

of the Plaintiff, Petitioner, or

Appellant, or in Support of Neither

Party, on the Merits or in an Original

Action at the Exceptions Stage (Rule

37.3)

30

light

green

(xii) Brief for an Amicus Curiae in Support

of the Defendant, Respondent, or

Appellee, on the Merits or in an

Original Action at the Exceptions

Stage (Rule 37.3)

30

dark

green

(xiii) Petition for Rehearing (Rule 44)

10

tan

--------------------------------------------------------------------

2. 8 1/2 - by 11-Inch Paper Format: (a) The text of every

document, including any appendix thereto, expressly permitted by

these Rules to be presented to the Court on 8 1/2 - by 11-inch

paper shall appear double spaced, except for indented quotations,

which shall be single spaced, on opaque, unglazed, white paper. The

document shall be stapled or bound at the upper left-hand corner.

Copies, if required, shall be produced on the same type of paper

and shall be legible. The original of any such document (except a

motion to dismiss or affirm under Rule 18.6) shall be signed by the

party proceeding pro se or by counsel of record who must be a

member of the Bar of this Court or an attorney appointed under the

Criminal Justice Act of 1964, see 18 U.S.C. Sec. 3006A(d)(6), or

under any other applicable federal statute. Subparagraph 1(g) of

this Rule does not apply to documents prepared under this

paragraph.

(b) Page limits for documents presented on 8 1/2 - by 11-inch

paper are: 40 pages for a petition for a writ of certiorari,

jurisdictional statement, petition for an extraordinary writ, brief

in opposition, or motion to dismiss or affirm; and 15 pages for a

reply to a brief in opposition, brief opposing a motion to dismiss

or affirm, supplemental brief, or petition for rehearing. The page

exclusions specified in subparagraph 1(d) of this Rule apply.

-REFTEXT-

REFERENCES IN TEXT

The Criminal Justice Act of 1964, referred to in par. 2(a), is

Pub. L. 88-455, Aug. 20, 1964, 78 Stat. 552, as amended, which

enacted section 3006A of Title 18, Crimes and Criminal Procedure,

and provisions set out as notes under section 3006A of Title 18.

For complete classification of this Act to the Code, see Short

Title note set out under section 3006A of Title 18 and Tables.

-End-

-CITE-

28 USC APPENDIX Rule 34 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VII. PRACTICE AND PROCEDURE

-HEAD-

Rule 34. Document Preparation: General Requirements

-STATUTE-

Every document, whether prepared under Rule 33.1 or Rule 33.2,

shall comply with the following provisions:

1. Each document shall bear on its cover, in the order indicated,

from the top of the page:

(a) the docket number of the case or, if there is none, a space

for one;

(b) the name of this Court;

(c) the caption of the case as appropriate in this Court;

(d) the nature of the proceeding and the name of the court from

which the action is brought (e.g., "On Petition for Writ of

Certiorari to the United States Court of Appeals for the Fifth

Circuit"; or, for a merits brief, "On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit");

(e) the title of the document (e.g., "Petition for Writ of

Certiorari," "Brief for Respondent," "Joint Appendix");

(f) the name of the attorney who is counsel of record for the

party concerned (who must be a member of the Bar of this Court

except as provided in Rule 33.2), and on whom service is to be

made, with a notation directly thereunder identifying the

attorney as counsel of record and setting out counsel's office

address and telephone number. Only one counsel of record may be

noted on a single document. The names of other members of the Bar

of this Court or of the bar of the highest court of a State

acting as counsel, and, if desired, their addresses, may be

added, but counsel of record shall be clearly identified. Names

of persons other than attorneys admitted to a state bar may not

be listed, unless the party is appearing pro se, in which case

the party's name, address, and telephone number shall appear. The

foregoing shall be displayed in an appropriate typographic manner

and, except for the identification of counsel, may not be set in

type smaller than standard 11-point, if the document is prepared

as required by Rule 33.1.

2. Every document exceeding five pages (other than a joint

appendix), whether prepared under Rule 33.1 or Rule 33.2, shall

contain a table of contents and a table of cited authorities (i.e.,

cases alphabetically arranged, constitutional provisions, statutes,

treatises, and other materials) with references to the pages in the

document where such authorities are cited.

3. The body of every document shall bear at its close the name of

counsel of record and such other counsel, identified on the cover

of the document in conformity with subparagraph 1(g) of this Rule,

as may be desired.

-End-

-CITE-

28 USC APPENDIX Rule 35 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VII. PRACTICE AND PROCEDURE

-HEAD-

Rule 35. Death, Substitution, and Revivor; Public Officers

-STATUTE-

1. If a party dies after filing a petition for a writ of

certiorari to this Court, or after filing a notice of appeal, the

authorized representative of the deceased party may appear and, on

motion, be substituted as a party. If the representative does not

voluntarily become a party, any other party may suggest the death

on the record and, on motion, seek an order requiring the

representative to become a party within a designated time. If the

representative then fails to become a party, the party so moving,

if a respondent or appellee, is entitled to have the petition for a

writ of certiorari or the appeal dismissed, and if a petitioner or

appellant, is entitled to proceed as in any other case of

nonappearance by a respondent or appellee. If the substitution of a

representative of the deceased is not made within six months after

the death of the party, the case shall abate.

2. Whenever a case cannot be revived in the court whose judgment

is sought to be reviewed, because the deceased party's authorized

representative is not subject to that court's jurisdiction,

proceedings will be conducted as this Court may direct.

3. When a public officer who is a party to a proceeding in this

Court in an official capacity dies, resigns, or otherwise ceases to

hold office, the action does not abate and any successor in office

is automatically substituted as a party. The parties shall notify

the Clerk in writing of any such successions. Proceedings following

the substitution shall be in the name of the substituted party, but

any misnomer not affecting substantial rights of the parties will

be disregarded.

4. A public officer who is a party to a proceeding in this Court

in an official capacity may be described as a party by the

officer's official title rather than by name, but the Court may

require the name to be added.

-End-

-CITE-

28 USC APPENDIX Rule 36 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VII. PRACTICE AND PROCEDURE

-HEAD-

Rule 36. Custody of Prisoners in Habeas Corpus Proceedings

-STATUTE-

1. Pending review in this Court of a decision in a habeas corpus

proceeding commenced before a court, Justice, or judge of the

United States, the person having custody of the prisoner may not

transfer custody to another person unless the transfer is

authorized under this Rule.

2. Upon application by a custodian, the court, Justice, or judge

who entered the decision under review may authorize transfer and

the substitution of a successor custodian as a party.

3. (a) Pending review of a decision failing or refusing to

release a prisoner, the prisoner may be detained in the custody

from which release is sought or in other appropriate custody or may

be enlarged on personal recognizance or bail, as may appear

appropriate to the court, Justice, or judge who entered the

decision, or to the court of appeals, this Court, or a judge or

Justice of either court.

(b) Pending review of a decision ordering release, the prisoner

shall be enlarged on personal recognizance or bail, unless the

court, Justice, or judge who entered the decision, or the court of

appeals, this Court, or a judge or Justice of either court, orders

otherwise.

4. An initial order respecting the custody or enlargement of the

prisoner, and any recognizance or surety taken, shall continue in

effect pending review in the court of appeals and in this Court

unless for reasons shown to the court of appeals, this Court, or a

judge or Justice of either court, the order is modified or an

independent order respecting custody, enlargement, or surety is

entered.

-End-

-CITE-

28 USC APPENDIX Rule 37 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VII. PRACTICE AND PROCEDURE

-HEAD-

Rule 37. Brief for an g742Amicus Curiae

-STATUTE-

1. An amicus curiae brief that brings to the attention of the

Court relevant matter not already brought to its attention by the

parties may be of considerable help to the Court. An amicus curiae

brief that does not serve this purpose burdens the Court, and its

filing is not favored.

2. (a) An amicus curiae brief submitted before the Court's

consideration of a petition for a writ of certiorari, motion for

leave to file a bill of complaint, jurisdictional statement, or

petition for an extraordinary writ, may be filed if accompanied by

the written consent of all parties, or if the Court grants leave to

file under subparagraph 2(b) of this Rule. The brief shall be

submitted within the time allowed for filing a brief in opposition

or for filing a motion to dismiss or affirm. The amicus curiae

brief shall specify whether consent was granted, and its cover

shall identify the party supported.

(b) When a party to the case has withheld consent, a motion for

leave to file an amicus curiae brief before the Court's

consideration of a petition for a writ of certiorari, motion for

leave to file a bill of complaint, jurisdictional statement, or

petition for an extraordinary writ may be presented to the Court.

The motion, prepared as required by Rule 33.1 and as one document

with the brief sought to be filed, shall be submitted within the

time allowed for filing an amicus curiae brief, and shall indicate

the party or parties who have withheld consent and state the nature

of the movant's interest. Such a motion is not favored.

3. (a) An amicus curiae brief in a case before the Court for oral

argument may be filed if accompanied by the written consent of all

parties, or if the Court grants leave to file under subparagraph

3(b) of this Rule. The brief shall be submitted within the time

allowed for filing the brief for the party supported, or if in

support of neither party, within the time allowed for filing the

petitioner's or appellant's brief. The amicus curiae brief shall

specify whether consent was granted, and its cover shall identify

the party supported or indicate whether it suggests affirmance or

reversal. The Clerk will not file a reply brief for an amicus

curiae, or a brief for an amicus curiae in support of, or in

opposition to, a petition for rehearing.

(b) When a party to a case before the Court for oral argument has

withheld consent, a motion for leave to file an amicus curiae brief

may be presented to the Court. The motion, prepared as required by

Rule 33.1 and as one document with the brief sought to be filed,

shall be submitted within the time allowed for filing an amicus

curiae brief, and shall indicate the party or parties who have

withheld consent and state the nature of the movant's interest.

4. No motion for leave to file an amicus curiae brief is

necessary if the brief is presented on behalf of the United States

by the Solicitor General; on behalf of any agency of the United

States allowed by law to appear before this Court when submitted by

the agency's authorized legal representative; on behalf of a State,

Commonwealth, Territory, or Possession when submitted by its

Attorney General; or on behalf of a city, county, town, or similar

entity when submitted by its authorized law officer.

5. A brief or motion filed under this Rule shall be accompanied

by proof of service as required by Rule 29, and shall comply with

the applicable provisions of Rules 21, 24, and 33.1 (except that it

suffices to set out in the brief the interest of the amicus curiae,

the summary of the argument, the argument, and the conclusion). A

motion for leave to file may not exceed five pages. A party served

with the motion may file an objection thereto, stating concisely

the reasons for withholding consent; the objection shall be

prepared as required by Rule 33.2.

6. Except for briefs presented on behalf of amicus curiae listed

in Rule 37.4, a brief filed under this Rule shall indicate whether

counsel for a party authored the brief in whole or in part and

shall identify every person or entity, other than the amicus

curiae, its members, or its counsel, who made a monetary

contribution to the preparation or submission of the brief. The

disclosure shall be made in the first footnote on the first page of

text.

-End-

-CITE-

28 USC APPENDIX Rule 38 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VII. PRACTICE AND PROCEDURE

-HEAD-

Rule 38. Fees

-STATUTE-

Under 28 U.S.C. Sec. 1911, the fees charged by the Clerk are:

(a) for docketing a case on a petition for a writ of certiorari

or on appeal or for docketing any other proceeding, except a

certified question or a motion to docket and dismiss an appeal

under Rule 18.5, $300;

(b) for filing a petition for rehearing or a motion for leave

to file a petition for rehearing, $200;

(c) for reproducing and certifying any record or paper, $1 per

page; and for comparing with the original thereof any

photographic reproduction of any record or paper, when furnished

by the person requesting its certification, $.50 per page;

(d) for a certificate bearing the seal of the Court, $10; and

(e) for a check paid to the Court, Clerk, or Marshal that is

returned for lack of funds, $35.

-End-

-CITE-

28 USC APPENDIX Rule 39 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VII. PRACTICE AND PROCEDURE

-HEAD-

Rule 39. Proceedings g742In Forma Pauperis

-STATUTE-

1. A party seeking to proceed in forma pauperis shall file a

motion for leave to do so, together with the party's notarized

affidavit or declaration (in compliance with 28 U.S.C. Sec. 1746)

in the form prescribed by the Federal Rules of Appellate Procedure,

Form 4. The motion shall state whether leave to proceed in forma

pauperis was sought in any other court and, if so, whether leave

was granted. If the United States district court or the United

States court of appeals has appointed counsel under the Criminal

Justice Act of 1964, 18 U.S.C. Sec. 3006A, or under any other

applicable federal statute, no affidavit or declaration is

required, but the motion shall cite the statute under which counsel

was appointed.

2. If leave to proceed in forma pauperis is sought for the

purpose of filing a document, the motion, and an affidavit or

declaration if required, shall be filed together with that document

and shall comply in every respect with Rule 21. As provided in that

Rule, it suffices to file an original and 10 copies, unless the

party is an inmate confined in an institution and is not

represented by counsel, in which case the original, alone,

suffices. A copy of the motion shall precede and be attached to

each copy of the accompanying document.

3. Except when these Rules expressly provide that a document

shall be prepared as required by Rule 33.1, every document

presented by a party proceeding under this Rule shall be prepared

as required by Rule 33.2 (unless such preparation is impossible).

Every document shall be legible. While making due allowance for any

case presented under this Rule by a person appearing pro se, the

Clerk will not file any document if it does not comply with the

substance of these Rules or is jurisdictionally out of time.

4. When the documents required by paragraphs 1 and 2 of this Rule

are presented to the Clerk, accompanied by proof of service as

required by Rule 29, they will be placed on the docket without the

payment of a docket fee or any other fee.

5. The respondent or appellee in a case filed in forma pauperis

shall respond in the same manner and within the same time as in any

other case of the same nature, except that the filing of an

original and 10 copies of a response prepared as required by Rule

33.2, with proof of service as required by Rule 29, suffices. The

respondent or appellee may challenge the grounds for the motion for

leave to proceed in forma pauperis in a separate document or in the

response itself.

6. Whenever the Court appoints counsel for an indigent party in a

case set for oral argument, the briefs on the merits submitted by

that counsel, unless otherwise requested, shall be prepared under

the Clerk's supervision. The Clerk also will reimburse appointed

counsel for any necessary travel expenses to Washington, D.C., and

return in connection with the argument.

7. In a case in which certiorari has been granted, probable

jurisdiction noted, or consideration of jurisdiction postponed,

this Court may appoint counsel to represent a party financially

unable to afford an attorney to the extent authorized by the

Criminal Justice Act of 1964, 18 U.S.C. Sec. 3006A, or by any other

applicable federal statute.

8. If satisfied that a petition for a writ of certiorari,

jurisdictional statement, or petition for an extraordinary writ is

frivolous or malicious, the Court may deny leave to proceed in

forma pauperis.

-REFTEXT-

REFERENCES IN TEXT

Federal Rules of Appellate Procedure, referred to in par. 1, are

set out in this Appendix.

The Criminal Justice Act of 1964, referred to in pars. 1 and 7,

is Pub. L. 88-455, Aug. 20, 1964, 78 Stat. 552, as amended, which

enacted section 3006A of Title 18, Crimes and Criminal Procedure,

and provisions set out as notes under section 3006A of Title 18.

For complete classification of this Act to the Code, see Short

Title note set out under section 3006A of Title 18 and Tables.

-End-

-CITE-

28 USC APPENDIX Rule 40 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VII. PRACTICE AND PROCEDURE

-HEAD-

Rule 40. Veterans, Seamen, and Military Cases

-STATUTE-

1. A veteran suing to establish reemployment rights under any

provision of law exempting veterans from the payment of fees or

court costs, may file a motion for leave to proceed on papers

prepared as required by Rule 33.2. The motion shall ask leave to

proceed as a veteran and be accompanied by an affidavit or

declaration setting out the moving party's veteran status. A copy

of the motion shall precede and be attached to each copy of the

petition for a writ of certiorari or other substantive document

filed by the veteran.

2. A seaman suing under 28 U.S.C. Sec. 1916 may proceed without

prepayment of fees or costs or furnishing security therefor, but is

not entitled to proceed under Rule 33.2, except as authorized by

the Court on separate motion under Rule 39.

3. An accused person petitioning for a writ of certiorari to

review a decision of the United States Court of Appeals for the

Armed Forces under 28 U.S.C. Sec. 1259 may proceed without

prepayment of fees or costs or furnishing security therefor and

without filing an affidavit of indigency, but is not entitled to

proceed on papers prepared as required by Rule 33.2, except as

authorized by the Court on separate motion under Rule 39.

-End-

-CITE-

28 USC APPENDIX PART VIII. DISPOSITION OF CASES 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VIII. DISPOSITION OF CASES

-HEAD-

PART VIII. DISPOSITION OF CASES

-End-

-CITE-

28 USC APPENDIX Rule 41 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VIII. DISPOSITION OF CASES

-HEAD-

Rule 41. Opinions of the Court

-STATUTE-

Opinions of the Court will be released by the Clerk immediately

upon their announcement from the bench, or as the Court otherwise

directs. Thereafter, the Clerk will cause the opinions to be issued

in slip form, and the Reporter of Decisions will prepare them for

publication in the preliminary prints and bound volumes of the

United States Reports.

-End-

-CITE-

28 USC APPENDIX Rule 42 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VIII. DISPOSITION OF CASES

-HEAD-

Rule 42. Interest and Damages

-STATUTE-

1. If a judgment for money in a civil case is affirmed, any

interest allowed by law is payable from the date the judgment under

review was entered. If a judgment is modified or reversed with a

direction that a judgment for money be entered below, the mandate

will contain instructions with respect to the allowance of

interest. Interest in cases arising in a state court is allowed at

the same rate that similar judgments bear interest in the courts of

the State in which judgment is directed to be entered. Interest in

cases arising in a court of the United States is allowed at the

interest rate authorized by law.

2. When a petition for a writ of certiorari, an appeal, or an

application for other relief is frivolous, the Court may award the

respondent or appellee just damages, and single or double costs

under Rule 43. Damages or costs may be awarded against the

petitioner, appellant, or applicant, against the party's counsel,

or against both party and counsel.

-End-

-CITE-

28 USC APPENDIX Rule 43 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VIII. DISPOSITION OF CASES

-HEAD-

Rule 43. Costs

-STATUTE-

1. If the Court affirms a judgment, the petitioner or appellant

shall pay costs unless the Court otherwise orders.

2. If the Court reverses or vacates a judgment, the respondent or

appellee shall pay costs unless the Court otherwise orders.

3. The Clerk's fees and the cost of printing the joint appendix

are the only taxable items in this Court. The cost of the

transcript of the record from the court below is also a taxable

item, but shall be taxable in that court as costs in the case. The

expenses of printing briefs, motions, petitions, or jurisdictional

statements are not taxable.

4. In a case involving a certified question, costs are equally

divided unless the Court otherwise orders, except that if the Court

decides the whole matter in controversy, as permitted by Rule 19.2,

costs are allowed as provided in paragraphs 1 and 2 of this Rule.

5. To the extent permitted by 28 U.S.C. Sec. 2412, costs under

this Rule are allowed for or against the United States or an

officer or agent thereof, unless expressly waived or unless the

Court otherwise orders.

6. When costs are allowed in this Court, the Clerk will insert an

itemization of the costs in the body of the mandate or judgment

sent to the court below. The prevailing side may not submit a bill

of costs.

7. In extraordinary circumstances the Court may adjudge double

costs.

-End-

-CITE-

28 USC APPENDIX Rule 44 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VIII. DISPOSITION OF CASES

-HEAD-

Rule 44. Rehearing

-STATUTE-

1. Any petition for the rehearing of any judgment or decision of

the Court on the merits shall be filed within 25 days after entry

of the judgment or decision, unless the Court or a Justice shortens

or extends the time. The petitioner shall file 40 copies of the

rehearing petition and shall pay the filing fee prescribed by Rule

38(b), except that a petitioner proceeding in forma pauperis under

Rule 39, including an inmate of an institution, shall file the

number of copies required for a petition by such a person under

Rule 12.2. The petition shall state its grounds briefly and

distinctly and shall be served as required by Rule 29. The petition

shall be presented together with certification of counsel (or of a

party unrepresented by counsel) that it is presented in good faith

and not for delay; one copy of the certificate shall bear the

signature of counsel (or of a party unrepresented by counsel). A

copy of the certificate shall follow and be attached to each copy

of the petition. A petition for rehearing is not subject to oral

argument and will not be granted except by a majority of the Court,

at the instance of a Justice who concurred in the judgment or

decision.

2. Any petition for the rehearing of an order denying a petition

for a writ of certiorari or extraordinary writ shall be filed

within 25 days after the date of the order of denial and shall

comply with all the form and filing requirements of paragraph 1 of

this Rule, including the payment of the filing fee if required, but

its grounds shall be limited to intervening circumstances of a

substantial or controlling effect or to other substantial grounds

not previously presented. The petition shall be presented together

with certification of counsel (or of a party unrepresented by

counsel) that it is restricted to the grounds specified in this

paragraph and that it is presented in good faith and not for delay;

one copy of the certificate shall bear the signature of counsel (or

of a party unrepresented by counsel). The certificate shall be

found with each copy of the petition. The Clerk will not file a

petition without a certificate. The petition is not subject to oral

argument.

3. The Clerk will not file any response to a petition for

rehearing unless the Court requests a response. In the absence of

extraordinary circumstances, the Court will not grant a petition

for rehearing without first requesting a response.

4. The Clerk will not file consecutive petitions and petitions

that are out of time under this Rule.

5. The Clerk will not file any brief for an amicus curiae in

support of, or in opposition to, a petition for rehearing.

-End-

-CITE-

28 USC APPENDIX Rule 45 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VIII. DISPOSITION OF CASES

-HEAD-

Rule 45. Process; Mandates

-STATUTE-

1. All process of this Court issues in the name of the President

of the United States.

2. In a case on review from a state court, the mandate issues 25

days after entry of the judgment, unless the Court or a Justice

shortens or extends the time, or unless the parties stipulate that

it issue sooner. The filing of a petition for rehearing stays the

mandate until disposition of the petition, unless the Court orders

otherwise. If the petition is denied, the mandate issues forthwith.

3. In a case on review from any court of the United States, as

defined by 28 U.S.C. Sec. 451, a formal mandate does not issue

unless specially directed; instead, the Clerk of this Court will

send the clerk of the lower court a copy of the opinion or order of

this Court and a certified copy of the judgment. The certified copy

of the judgment, prepared and signed by this Court's Clerk, will

provide for costs if any are awarded. In all other respects, the

provisions of paragraph 2 of this Rule apply.

-End-

-CITE-

28 USC APPENDIX Rule 46 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART VIII. DISPOSITION OF CASES

-HEAD-

Rule 46. Dismissing Cases

-STATUTE-

1. At any stage of the proceedings, whenever all parties file

with the Clerk an agreement in writing that a case be dismissed,

specifying the terms for payment of costs, and pay to the Clerk any

fees then due, the Clerk, without further reference to the Court,

will enter an order of dismissal.

2. (a) A petitioner or appellant may file a motion to dismiss the

case, with proof of service as required by Rule 29, tendering to

the Clerk any fees due and costs payable. No more than 15 days

after service thereof, an adverse party may file an objection,

limited to the amount of damages and costs in this Court alleged to

be payable or to showing that the moving party does not represent

all petitioners or appellants. The Clerk will not file any

objection not so limited.

(b) When the objection asserts that the moving party does not

represent all the petitioners or appellants, the party moving for

dismissal may file a reply within 10 days, after which time the

matter will be submitted to the Court for its determination.

(c) If no objection is filed - or if upon objection going only to

the amount of damages and costs in this Court, the party moving for

dismissal tenders the additional damages and costs in full within

10 days of the demand therefor - the Clerk, without further

reference to the Court, will enter an order of dismissal. If, after

objection as to the amount of damages and costs in this Court, the

moving party does not respond by a tender within 10 days, the Clerk

will report the matter to the Court for its determination.

3. No mandate or other process will issue on a dismissal under

this Rule without an order of the Court.

-End-

-CITE-

28 USC APPENDIX PART IX. DEFINITIONS AND

EFFECTIVE DATE 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART IX. DEFINITIONS AND EFFECTIVE DATE

-HEAD-

PART IX. DEFINITIONS AND EFFECTIVE DATE

-End-

-CITE-

28 USC APPENDIX Rule 47 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART IX. DEFINITIONS AND EFFECTIVE DATE

-HEAD-

Rule 47. Reference to "State Court" and "State Law"

-STATUTE-

The term "state court," when used in these Rules, includes the

District of Columbia Court of Appeals and the Supreme Court of the

Commonwealth of Puerto Rico. See 28 U.S.C. Secs. 1257 and 1258.

References in these Rules to the common law and statutes of a State

include the common law and statutes of the District of Columbia and

of the Commonwealth of Puerto Rico.

-End-

-CITE-

28 USC APPENDIX Rule 48 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE SUPREME COURT OF THE UNITED STATES

PART IX. DEFINITIONS AND EFFECTIVE DATE

-HEAD-

Rule 48. Effective Date of Rules

-STATUTE-

1. These Rules, adopted January 11, 1999, will be effective May

3, 1999.

2. The Rules govern all proceedings after their effective date

except to the extent that, in the opinion of the Court, their

application to a pending matter would not be feasible or would work

an injustice, in which event the former procedure applies.

-End-

-CITE-

28 USC APPENDIX RULES OF THE UNITED STATES COURT

OF FEDERAL CLAIMS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

-HEAD-

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

-MISC1-

(REVISED MARCH 19, 2002, EFFECTIVE MAY 1, 2002, AS AMENDED TO

JANUARY 6, 2003)

GENERAL ORDER NO. 41

IT IS ORDERED this date that the attached rules [set out below]

are adopted as the Rules of the United States Court of Federal

Claims effective May 1, 2002. IT IS FURTHER ORDERED that General

Orders 1 through 39 are revoked effective May 1, 2002.

March 19, 2002

By the Court

Lawrence M. Baskir

Chief Judge

CHANGE OF NAME

References to United States Claims Court deemed to refer to

United States Court of Federal Claims and references to Claims

Court deemed to refer to Court of Federal Claims, see section

902(b) of Pub. L. 102-572, set out as a note under section 171 of

this title.

RULES

TABLE OF CONTENTS

I. SCOPE OF RULES - ONE FORM OF ACTION

Rule

1. Scope and Purpose of Rules.

2. One Form of Action.

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

3. Commencement of Action.

3.1. Transfers and Referrals.

4. Serving Complaints Upon the United States.

4.1. Serving Orders in Contempt Proceedings.

5. Serving and Filing of Pleadings and Other Papers.

5.1. Proof of Service.

5.2. Content of Briefs or Memoranda; Length of Briefs or

Memoranda.

5.3. Form, Size, and Duplication of all Papers.

6. Time.

6.1. Enlargements of Time.

III. PLEADINGS AND MOTIONS

7. Pleadings Allowed; Form of Motions.

7.1. Time for Filing.

8. General Rules of Pleading.

9. Pleading Special Matters.

10. Form of Pleadings.

11. Signing of Pleadings, Motions, and Other Papers;

Representations to Court; Sanctions.

12. Defenses and Objections.

13. Counterclaim.

14. Third-Party Practice.

15. Amended and Supplemental Pleadings.

16. Pretrial Conferences; Scheduling; Management.

IV. PARTIES

17. Parties Plaintiff and Defendant; Capacity.

18. Joinder of Claims and Remedies.

19. Joinder of Persons Needed for Just Adjudication.

20. Permissive Joinder of Parties.

21. Misjoinder and Non-Joinder of Parties.

22. Interpleader. [Not used].

23. Class Actions.

23.1. Derivative Actions by Shareholders.

23.2. Actions Relating to Unincorporated Associations. [Not

used.]

24. Intervention.

25. Substitution of Parties.

V. DEPOSITIONS AND DISCOVERY

26. General Provisions Governing Discovery; Duty of

Disclosure.

27. Depositions Before Action or Pending Appeal.

28. Persons Before Whom Depositions may be Taken.

29. Stipulations Regarding Discovery Procedure.

30. Depositions Upon Oral Examination.

31. Depositions Upon Written Questions.

32. Use of Depositions in Court Proceedings.

33. Interrogatories to Parties.

34. Production of Documents and Things and Entry Upon

Land.

35. Physical and Mental Examinations of Persons.

36. Requests for Admission.

37. Failure to Make Disclosure or Cooperate in Discovery;

Sanctions.

VI. TRIALS

38. Jury Trial of Right. [Not used.]

39. Trial by Jury or by the Court. [Not used.]

40. Setting Cases for Trial.

40.1. Assignment and Transfer of Cases.

40.2. Related Cases.

40.3. Complaints Against Judges.

41. Dismissal of Actions.

42. Consolidation; Separate Trials.

42.1. Motions to Consolidate.

43. Taking of Testimony.

44. Proof of Official Record.

44.1. Determination of Foreign Law.

45. Subpoena.

46. Exceptions Unnecessary.

47. Selection of Jurors. [Not used.]

48. Number of Jurors - Participation in Verdict. [Not

used.]

49. Special Verdicts and Interrogatories. [Not used.]

50. Judgment as a Matter of Law in Jury Trials. [Not

used.]

51. Instructions to Jury: Objection. [Not used.]

52. Findings by the Court; Judgment on Partial Findings.

53. Masters.

VII. JUDGMENT

54. Judgments; Costs.

55. Default.

56. Summary Judgment.

56.1. Review of Decision on the Basis of Administrative

Record.

56.2. Remand; Extension or Termination of Stay of

Proceedings.

57. Declaratory Judgments.

58. Entry of Judgment.

58.1. Notice of Appeal.

59. New Trials; Rehearings; Amendment of Judgments;

Reconsideration.

60. Relief from Judgment or Order.

61. Harmless Error.

62. Stay of Proceedings to Enforce a Judgment.

63. Inability of a Judge to Proceed.

VIII. PROVISIONAL AND FINAL REMEDIES

64. Seizure of Person or Property. [Not used.]

65. Injunctions.

65.1. Security: Proceedings Against Sureties.

66. Receivers Appointed by Federal Courts. [Not used.]

67. Deposit in Court. [Not used.]

68. Offer of Judgment.

69. Execution. [Not used.]

70. Judgment for Specific Acts; Vesting Title. [Not used.]

71. Process in Behalf of and Against Persons Not Parties.

[Not used.]

IX. SPECIAL PROCEEDINGS

71A. Condemnation of Property. [Not used.]

72. Notice of Appeal. [Not used.]

73. Magistrate Judges; Trial by Consent and Appeal

Options. [Not used.]

74-76. [Abrogated.]

X. COURT AND CLERK

77. Court and Clerk.

77.1. Business Hours, Scheduling and Fees.

77.2. Authorization to Act on Certain Motions.

77.3. Withdrawal of Papers, Exhibits.

78. Motions Day. [Not used.]

79. Books and Records Kept by the Clerk and Entries

Therein.

80. Record or Transcript as Evidence.

80.1. Instructions to Reporters.

XI. GENERAL PROVISIONS

81. Applicability in General. [Not used.]

82. Jurisdiction and Venue Unaffected. [Not used.]

83. Rules by Court of Federal Claims; Judge's Directives.

83.1. Attorneys.

83.2. Rules of Disciplinary Enforcement.

83.3. Legal Assistance by Law Students.

83.4. Advisory Council.

84. Forms.

85. Title.

86. Effective Date.

APPENDIX A

CASE MANAGEMENT PROCEDURE.

APPENDIX B

VACCINE RULES.

APPENDIX C

PROCEDURE IN PROCUREMENT PROTEST CASES.

APPENDIX D

PROCEDURE IN CONGRESSIONAL REFERENCE CASES.

APPENDIX E

PROCEDURE IN CARRIER CASES.

APPENDIX F

PROCEDURE IN TAX PARTNERSHIP CASES.

APPENDIX G

PROCEDURE IN INDIAN CLAIMS COMMISSION CASES.

APPENDIX H

PROCEDURE FOR ALTERNATIVE DISPUTE RESOLUTION.

APPENDIX OF FORMS

FORM 1. ADMISSION INSTRUCTIONS.

FORM 2. COVER SHEET.

FORM 3A. REPORTER FORMS.

FORM 3B. CERTIFICATE OF REPORTER.

FORM 4. BILL OF COSTS.

FORM 5. EAJA FORM.

FORM 6. SUBPOENA.

FORM 7. CAPTION OF ALL FILINGS IN VACCINE CASES.

FORM 7A. SUBPOENA IN VACCINE CASES.

FORM 8. PROTECTIVE ORDER IN PROCUREMENT PROTEST CASES.

FORM 9. APPLICATION FOR ACCESS TO INFORMATION.

FORM 10. APPLICATION FOR ACCESS TO INFORMATION.

FORM 11. SURETY BOND.

FORM 12. SUPERSEDEAS BOND.

FORM 13. BOND WITH COLLATERAL.

* * * * *

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

The United States Court of Federal Claims (formerly designated

United States Claims Court) was created by the Federal Courts

Improvement Act of 1982 (Pub. L. No. 97-164, 96 Stat. 25 (1982)).

The court inherited the jurisdiction formerly exercised by the

United States Court of Claims. Title 28 U.S.C. Sec. 2503(b)

authorizes the United States Court of Federal Claims to prescribe

rules of practice and procedure for its proceedings.

The Federal Rules of Civil Procedure applicable to civil actions

tried by a United States district court sitting without a jury have

been incorporated into the following rules to the extent

appropriate for proceedings in this court.

-MISC3-

RULES COMMITTEE NOTE

In this 2002 revision, the court has endeavored to create a set

of rules that conforms to the Federal Rules of Civil Procedure as

amended through November 30, 2001, to the extent practicable given

differences in jurisdiction between the United States district

courts and the United States Court of Federal Claims. Consistent

with this objective, interpretation of the court's rules will be

guided by case law and the Advisory Committee Notes that accompany

the Federal Rules of Civil Procedure. The court's own Rules

Committee Notes are intended primarily to state the source of a

given rule but in some instances also provide interpretive

guidance.

Future revisions to these rules will be posted on the court's

website at www.uscfc.uscourts.gov.

-End-

-CITE-

28 USC APPENDIX I. SCOPE OF RULES - ONE FORM OF

ACTION 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

I. SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-

I. SCOPE OF RULES - ONE FORM OF ACTION

-End-

-CITE-

28 USC APPENDIX Rule 1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

I. SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-

Rule 1. Scope and Purpose of Rules

-STATUTE-

These rules govern the procedure in the United States Court of

Federal Claims in all suits. They shall be construed and

administered to secure the just, speedy, and inexpensive

determination of every action.

-MISC1-

RULES COMMITTEE NOTE

The Rules of the United States Court of Federal Claims are drawn

under the authority of 28 U.S.C. Secs. 2071(a), (c); 2503(b)

(generally) and 2521(a) (subpoena and incidental powers). These

rules may be cited as "RCFC." Rule 1 has been revised to: (i)

reflect the change in the court's name; (ii) eliminate, as no

longer necessary, the previous reference to proceedings pending in

the court on October 1, 1982 - the year of the court's

establishment; (iii) incorporate the 1993 revision to Rule 1 of the

Federal Rules of Civil Procedure (FRCP) emphasizing that the rules

are to be both construed and administered to ensure that civil

litigation is resolved, not only fairly, but without undue cost and

delay; (iv) delete (a)(3) for consistency with the federal rules

(while retaining the substance of this provision in RCFC 83(b),

which is modeled on FRCP 83(b)); and to move subdivision (b) to the

preamble, because it is explanatory rather than prescriptive.

-End-

-CITE-

28 USC APPENDIX Rule 2 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

I. SCOPE OF RULES - ONE FORM OF ACTION

-HEAD-

Rule 2. One Form of Action

-STATUTE-

There shall be one form of action to be known as a "civil

action."

-MISC1-

RULES COMMITTEE NOTE

RCFC 2 is identical to its FRCP counterpart.

-End-

-CITE-

28 USC APPENDIX II. COMMENCEMENT OF ACTION;

SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-End-

-CITE-

28 USC APPENDIX Rule 3 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

Rule 3. Commencement of Action

-STATUTE-

A civil action is commenced by filing a complaint with the court.

See RCFC 40.2(a).

-MISC1-

RULES COMMITTEE NOTE

In the interest of achieving greater uniformity with the

corresponding federal rule, a number of changes have been made to

RCFC 3. First, subdivision (a) was fully conformed to the federal

rule; the reference to RCFC 40.2 calls attention to this court's

"related case" rule. Second, former subdivision (b), which

addressed disputes regarding filing dates, was deleted - both in

the interest of uniformity and in the belief that it was

inappropriate to include a rule of decision as part of a procedural

rule. Third, former subdivision (c) (prescribing a cover sheet and

identifying the number of copies required for filing), was moved to

RCFC 5.3(d).

-End-

-CITE-

28 USC APPENDIX Rule 3.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

Rule 3.1. Transfers and Referrals

-STATUTE-

(a) Transfers from Other Courts.

(1) Filing and Fee. When the transfer of a case from another

court to this court is permitted by law, including compliance

with 28 U.S.C. Sec. 1292(d)(4)(B), the case shall be filed in

this court upon the receipt by the clerk of a certified copy of

the record made in the other court, including the order of that

court granting the transfer. The clerk shall serve a notice of

this filing on the parties as provided in RCFC 5. Where all

required fees in the other court are shown to have been paid, no

filing fee will be required.

(2) Complaint; Copies. Eight copies of the complaint filed in

the other court, containing the necessary changes in the caption

and duplicated in conformity with RCFC 5.3, shall be filed with

the clerk within 28 days after the filing required in subdivision

(a)(1). In lieu thereof and within the same time period, an

original and 7 copies of an amended complaint may be filed in

conformity with the rules of this court setting forth the claim

or claims transferred. Service shall be made on the United States

as provided in RCFC 4.

(3) Procedure. After the filing and service as provided for in

subdivision (a)(2), all further proceedings shall be in

accordance with the rules prescribed for cases filed in this

court in the first instance.

(b) Referral of Cases by the Comptroller General.

(1) Service of Notice; Time for Response. Upon the filing of a

case referred to the court by the Comptroller General, the clerk

shall serve a notice, as provided in RCFC 5, on each person whose

name and address are shown by the papers transmitted and who

appears to be interested in the subject matter of the reference,

which notice shall set forth the filing of the reference and

state that the person notified appears to have an interest

therein and that such person shall have 90 days after such

service within which to appear and assert such person's claim by

filing a complaint. At the same time, the clerk shall forward a

copy of each such notice to the Attorney General.

(2) Procedure After Notice. After the service of notice upon

the interested person or persons, all further proceedings for the

disposition of the case shall be in accordance with the rules

prescribed herein for other cases.

(3) Failure of Party to Appear. If no interested plaintiff

appears to file a complaint within the time specified in the

notice served by the clerk, the case shall be submitted to the

court upon the papers filed and upon such evidence, if any, as

may be produced by the Attorney General.

-MISC1-

RULES COMMITTEE NOTE

RCFC 3.1 has no FRCP counterpart. The rule formerly appeared in

these rules as RCFC 84. The renumbering of RCFC 84 is intended to

reflect its more logical placement in the organizational structure

of the court's rules.

-End-

-CITE-

28 USC APPENDIX Rule 4 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

Rule 4. Serving Complaints Upon the United States

-STATUTE-

(a) Service upon the United States. Service of the complaint upon

the United States shall be made through the delivery by the clerk

to the Attorney General, or to an agent designated by authority of

the Attorney General, of copies of the complaint in numbers

prescribed by subdivision (b).

(b) Copies. The clerk shall serve on the Attorney General or his

designated agent 5 copies of the complaint.

(c) Proof and Date of Service. At the time the clerk serves a

complaint, the clerk shall enter the fact of service on the docket,

and such entry shall be prima facie evidence of service. For the

purposes of this rule, the date of service shall be the date of

filing with the clerk.

-MISC1-

RULES COMMITTEE NOTE

The title of the rule is changed to more closely conform to FRCP

4(i). Other provisions of FRCP 4(i) - those dealing with service

upon agencies, corporations, or officers of the United States -

have not been made a part of this court's RCFC 4 because, in this

court (with the exception of vaccine cases), only the United States

is properly the named defendant. See RCFC 10(a).

-End-

-CITE-

28 USC APPENDIX Rule 4.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

Rule 4.1. Serving Orders in Contempt Proceedings

-STATUTE-

An order initiating a contempt proceeding directed at a person

other than a party shall be served by a United States marshal, a

deputy United States marshal, or a person specially appointed for

that purpose, who shall deliver a copy of the order to the person

named therein. Proof of such service shall be as provided in RCFC

45(b)(3). All other orders relating to contempt proceedings shall

be served in the manner prescribed in RCFC 4 (if against an agent

or attorney of the United States) or in RCFC 5 (if against a

plaintiff, a plaintiff's representative, or a non-party).

-MISC1-

RULES COMMITTEE NOTE

New RCFC 4.1 implements the contempt authority granted to this

court by Sec. 910 of the Federal Courts Administration Act of 1992,

Pub. L. No. 102-572, 106 Stat. 4506, 4519-20. That section, now

codified at 28 U.S.C. Sec. 2521(b), (c) (1994), reads in relevant

part as follows:

(b) The United States Court of Federal Claims shall have power

to punish by fine or imprisonment, at its discretion, such

contempt of its authority as -

(1) misbehavior of any person in its presence or so near

thereto as to obstruct the administration of justice;

(2) misbehavior of any of its officers in their official

transactions; or

(3) disobedience or resistance to its lawful writ, process,

order, rule, decree or command.

(c) The United States Court of Federal Claims shall have

assistance in the carrying out of its lawful writ, process,

order, rule, decree, or command as is available to a court of the

United States. The United States marshal for any district in

which the Court of Federal Claims is sitting shall, when

requested by the chief judge of the Court of Federal Claims,

attend any session of the Court of Federal Claims in such

district.

The rule adopts the mode of service specified in FRCP 4.1, which

requires that service of process, other than a summons, be effected

upon non-parties through means more formal than mailing. See

generally FRCP 4.1 Advisory Committee Notes (recognizing a

distinction in service requirements between parties and

non-parties); I.A.M. Nat'l Pension Fund v. Wakefield Indus., 699

F.2d 1254, 1259-62 (D.C. Cir. 1983) (discussing service of contempt

orders).

-End-

-CITE-

28 USC APPENDIX Rule 5 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

Rule 5. Serving and Filing of Pleadings and Other Papers

-STATUTE-

(a) Service: When Required. Except as otherwise provided in these

rules, every order required by its terms to be served, every

pleading subsequent to the original complaint unless the court

otherwise orders, every paper relating to discovery required to be

served upon a party unless the court otherwise orders, every

written motion, and every written notice, appearance, demand, offer

of judgment, designation of record on appeal, and similar paper

shall be served upon each of the parties.

(b) Making Service.

(1) Service under RCFC 5(a) and 77(d) on a party represented by

an attorney is made on the attorney unless the court orders

service on the party.

(2) Service under RCFC 5(a) is made by:

(A) Delivering a copy to the person served by:

(i) handing it to the person;

(ii) leaving it at the person's office with a clerk or

other person in charge, or if no one is in charge leaving it

in a conspicuous place in the office; or

(iii) if the person has no office or the office is closed,

leaving it at the person's dwelling house or usual place of

abode with someone of suitable age and discretion residing

there.

(B) Mailing a copy to the last known address of the person

served. Service by mail is complete on mailing.

(C) If the person served has no known address, leaving a copy

with the clerk of the court.

(D) Delivering a copy by any other means, including

electronic means, consented to in writing by the person served.

Service by electronic means is complete on transmission;

service by other consented means is complete when the person

making service delivers the copy to the agency designated to

make delivery.

(3) Service by electronic means under RCFC 5(b)(2)(D) is not

effective if the party making service learns that the attempted

service did not reach the person to be served.

(c) [Not used.]

(d) Filing; Certificate of Service. All papers after the

complaint required to be served upon a party, together with a

certificate of service, must be filed with the court within a

reasonable time after the service, but disclosures under RCFC

26(a)(1) or (2) and the following discovery requests and responses

must not be filed until they are used in the proceeding or the

court orders filing: (i) depositions, (ii) interrogatories, (iii)

requests for documents or to permit entry upon land, and (iv)

requests for admission, except that depositions upon oral

examination and notices thereof, written questions,

interrogatories, requests for documents, requests for admission,

and answers and responses thereto and other related discovery

materials shall not be filed unless on order of the court. See RCFC

83.

(e) Filing with the Court Defined. The filing of papers with the

court as required by these rules shall be made by filing them with

the clerk of the court, except that the judge may permit the papers

to be filed with the judge, in which event the judge shall note

thereon the filing date and forthwith transmit them to the office

of the clerk. The court may by an amendment to these rules permit

papers to be filed, signed, or verified by electronic means that

are consistent with technical standards, if any, that the Judicial

Conference of the United States establishes. A paper filed by

electronic means in compliance with such amendment constitutes a

written paper for the purpose of applying these rules. The clerk

shall not refuse to accept for filing any paper presented for that

purpose solely because it is not presented in proper form as

required by these rules.

-MISC1-

RULES COMMITTEE NOTE

The changes made in RCFC 5 are intended to bring the rule into

closer conformity with FRCP 5. Thus, in addition to a change in

sequence, changes in text include the following:

First, the text of subdivision (b) has been modified to reflect

the December 1, 2001 changes to the FRCP which significantly affect

organization and which also make possible consensual service by

electronic means. In addition, the clause "but filing is not" has

been deleted from the last sentence of that subdivision. The

deleted language was not in conformity with the federal rule.

Filing is not complete on mailing; filing is controlled by

subdivisions (d) and (e) of this rule.

Second, subdivision (e) adopts the language of the federal rule

recognizing the appropriateness of permitting papers to be "filed,

signed, or verified by electronic means that are consistent with

technical standards, if any, that the Judicial Conference of the

United States establishes." It should be noted that no decision has

yet been made by the court to implement electronic filing. Such a

decision, when made, will be accomplished through an amendment to

the rules. Until the issuance of such amendment, the clerk's office

will not accept electronic filings. Individual chambers, however,

may allow counsel to transmit "courtesy" copies of filed documents

by electronic means.

Third, subdivision (e) also adds the final sentence from FRCP

5(e) stating that "[t]he clerk shall not refuse to accept for

filing any paper presented for that purpose solely because it is

not presented in proper form as required by these rules." The

addition of this language to the rule is not intended to alter the

court's practice of treating all non-conforming complaints as filed

upon receipt in the clerk's office, while referring other

non-conforming papers received in the clerk's office to a judge for

instructions as to whether to permit their filing or to require

counsel's correction of the papers' defects.

Finally, former subdivision (e) titled, "Proof of Service" does

not appear in FRCP 5. In order to conform more closely to FRCP 5,

former subdivision (e) was deleted from this rule and now appears

as RCFC 5.1.

-End-

-CITE-

28 USC APPENDIX Rule 5.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

Rule 5.1. Proof of Service

-STATUTE-

(a) Service shall be made by the party, attorney of record or any

other person acting under the attorney of record's direction. The

person making service shall execute a certificate of service that

contains the following information:

(1) the day and manner of service;

(2) the person and/or entity served; and

(3) the method of service employed, e.g., personal, mail,

substituted, etc.

(b) The certificate of service shall be attached at the end of

the original document, including appendices, and copies thereof. If

service other than by mail is used and it is impractical to attach

the certificate at the time of filing, such certificate may be

filed subsequently.

(c) The certificate may at any time be amended or supplied unless

to do so would result in material prejudice to the substantial

rights of any party.

-MISC1-

RULES COMMITTEE NOTE

RCFC 5.1 has no FRCP counterpart. The text of this rule formerly

appeared as subdivision (e) of former RCFC 5.

-End-

-CITE-

28 USC APPENDIX Rule 5.2 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

Rule 5.2. Content of Briefs or Memoranda; Length of Briefs or

Memoranda

-STATUTE-

(a) Content of Briefs or Memoranda.

(1) Initial Brief or Memorandum. Except in briefs or memoranda

of 10 pages or less or pretrial filings under Appendix A, the

first brief or memorandum due shall contain, under proper

headings and arranged in the following order:

(A) a table of contents, including the specific contents of

any appendix or appendices to the brief or memorandum, listing

the various items in the appendix, including the number and

description of every item and exhibit which is being

reproduced, together with the number of the page at which the

item appears;

(B) a table of constitutional provisions, treaties, statutes,

regulations, and cases cited, giving the volume and page in the

official edition where they may be found, and arranging the

cases in alphabetical order. All United States Claims Court and

United States Court of Federal Claims orders and opinions

published in either the United States Claims Court Reporter or

the Federal Claims Reporter shall be cited to reporters;

(C) a succinct statement of the questions involved, setting

forth each question separately;

(D) a concise statement of the case, containing all that is

material to the consideration of the questions presented, with

appropriate reference to specific findings, the stipulation of

facts, or other pertinent portions of the record, and setting

out verbatim in the brief or memorandum or in an appendix

thereto the pertinent portions of constitutional provisions,

treaties, statutes, and regulations, as well as the texts of

all administrative decisions directly involved in the case,

unless previously reproduced in or as an exhibit to the

complaint; the appendix or appendices to the brief or

memorandum shall be numbered consecutively within themselves so

as to enable the court more easily to find and read the

material in the appendix or appendices;

(E) the argument, exhibiting clearly the points of fact and

of law being presented, and citing the authorities relied upon;

(F) a conclusion, indicating the relief sought; and

(G) if an appendix is used, and is not incorporated into the

same volume as the brief, there shall be, at the beginning of

the appendix, a table of contents or index listing the various

items in the appendix, including the number and description of

every exhibit which is being reproduced, together with the

number of the page of the appendix at which the item begins.

(2) Opposing Brief or Memorandum. An opposing or answering

brief or memorandum shall conform to the requirements set out in

subdivision (a)(1), except that the items referred to in

subparagraphs (C) and (D) of that subdivision need not be

included unless the party is dissatisfied with the presentation

by the other side.

(3) Reply Brief or Memorandum. A reply brief or memorandum

shall conform to the requirements of subdivision (a)(2).

(4) General. Briefs or memoranda must be compact, concise,

logically arranged, and free from burdensome, irrelevant,

immaterial, and scandalous matter. Briefs or memoranda not

complying with this rule may be disregarded by the court.

(b) Length of Briefs or Memoranda.

(1) Except by leave of the court on motion, a party's initial

brief or memorandum shall not exceed 40 pages (50 pages for a

cross-movant) by any process of duplicating or copying, exclusive

of (A) pages containing tables of contents, citations to

constitutional provisions, treaties, statutes, regulations, and

cases, and (B) any appendix setting out verbatim the pertinent

portions of constitutional provisions, treaties, statutes,

regulations, agency or board decisions, court decisions, excerpts

from transcripts of testimony, and documentary exhibits.

(2) Except by leave of the court on motion, reply briefs or'

(!1) memoranda shall not exceed 20 pages by any process of

duplication or copying or 30 pages where a response to a motion

is included.

(3) A brief or memorandum previously filed may not be

incorporated by reference; any such incorporation will be

disregarded. A party wishing to rely upon a previously filed

brief or memorandum may do so by reproducing in an appendix

either (A) excerpts thereof now relied upon, or (B) the entire

brief or memorandum. In either event, the party shall identify

the total number of pages considered pertinent in a footnote

which is to appear on the first page of the brief or memorandum.

The pages so identified shall be included in the maximum

allowable length set forth in subdivisions (1) and (2).

-MISC1-

RULES COMMITTEE NOTE

RCFC 5.2 has no FRCP counterpart. The rule formerly appeared in

these rules as RCFC 83.1. The renumbering of RCFC 83.1 is intended

to reflect its more logical placement in the organizational

structure of the court's rules.

Several changes have been made to the rule; they include:

First, the deletion from subdivision (a) of language identifying

the plaintiff's brief or memorandum as "the first brief or

memorandum" normally to be filed.

Second, subparagraphs (A) and (G) of subdivision (a) were revised

to indicate that any index to a separate appendix should be

included both at the beginning of the appendix and at the beginning

of the accompanying brief or memorandum.

Third, subdivision (b)(4), relating to "a motion for leave to

exceed the page limitation," was deemed unduly burdensome and was

therefore stricken.

-FOOTNOTE-

(!1) So in original.

-End-

-CITE-

28 USC APPENDIX Rule 5.3 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

Rule 5.3. Form, Size, and Duplication of all Papers

-STATUTE-

(a) General. All papers filed with the clerk shall conform with

these rules as to methods of duplication, form, size, and number.

(b) Duplication. All requirements of duplication may be satisfied

by the use of any photocopy method capable of producing a clear

black image on white paper, provided that in each instance the

duplication shall conform to the requirements of subdivision (c) as

to paper, size, form, and pagination.

(c) Form and Size. All papers pursuant to the provisions of this

rule shall be duplicated on pages not exceeding 8 1/2 by 11

inches, with type matter on all papers other than exhibits to be of

letter quality. Type size for both text and footnotes shall not be

smaller than 12 point and margins shall not be less than 1" on all

sides. Papers duplicated shall be double spaced, except that quoted

and indented material and footnotes may be single spaced, and, if

covering both sides of the sheet, shall be duplicated on paper of

sufficient quality that the duplication process does not bleed

through the sheet. Except for submissions of fewer than 50 pages,

which may be stapled in the upper left-hand margin, all submissions

must be bound or attached along the entire left margin in book form

and shall have legible margins when bound or attached. Such pages

need not be justified on the right margin. All pages, including

appendices, shall be numbered. Page numbers shall be in large,

distinct type and shall appear in the center of the bottom margin

of the page.

(d) Number of Copies. Plaintiff shall file an original and 7

copies of the complaint, the original of which shall be accompanied

by the completed cover sheet as shown in the Appendix of Forms

(Form 2) utilizing the Cover Sheet Information. Except as provided

in RCFC 58.1, the parties shall file an original and 2 copies of

each other paper required by these rules to be filed with the

clerk. In congressional reference cases, an original and 4 copies

of each such paper shall be filed. All copies shall be identical,

or otherwise conformed, to the original.

(e) Date. Each paper shall bear the date it is signed on the

signature page.

(f) Telephone and Facsimile Numbers. The telephone and facsimile

numbers (including area code) of the attorney of record must appear

beneath the signature line of every pleading or other paper.

(g) Name of Judge. In pleadings and papers other than the

complaint, the name of the judge assigned to the case shall be

included under the docket number.

-MISC1-

RULES COMMITTEE NOTE

New RCFC 5.3 has no FRCP counterpart. The rule formerly appeared

in these rules as RCFC 82 and 83. The consolidation and renumbering

of RCFC 82 and 83 are intended to reflect their more logical

placement in the organizational structure of the court's rules.

In addition to the renumbering, the text of former RCFC 82 has

been modified in several respects: First, subdivision (a) has been

modified by deleting the last sentence of that subdivision which

read, "[t]he clerk shall refuse to file any paper which is not in

substantial conformity with this rule or not in clear type." The

deletion corresponds to the change made in RCFC 5(e) directing that

"[t]he clerk shall not refuse to accept for filing any paper

presented for that purpose solely because it is not presented in

proper form." However, as noted in the Advisory Committee Note to

FRCP 5(e), the "clerk may of course advise a party or counsel that

a particular instrument is not in proper form, and may be directed

to so inform the court."

Second, subdivision (c) has been modified to eliminate certain

redundancies; to fix the type size; and to clarify binding and

pagination requirements. Appendices will be subject to pagination.

The binding requirement changes are intended to discourage rubber

bands, paper clips and other nonsecure binding.

Third, former subdivision (e), now subdivision (f), has been

amended to include a requirement listing a facsimile number for the

attorney of record.

Fourth, subdivision (d) is an addition to the rule that

incorporates the "number of copies" requirement that formerly

appeared as RCFC 83, as well as the requirement formerly found in

RCFC 3(c) regarding the number of copies to be filed when filing a

complaint.

Finally, subdivision (g) is also an added provision. The text of

this subdivision formerly appeared as part of RCFC 10(a).

-End-

-CITE-

28 USC APPENDIX Rule 6 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

Rule 6. Time

-STATUTE-

(a) Computation. In computing any period of time prescribed or

allowed by these rules, by order of court, or by any applicable

statute, the day of the act, event, or default from which the

designated period of time begins to run shall not be included. The

last day of the period so computed shall be included, unless it is

a Saturday, a Sunday, or a legal holiday, or, when the act to be

done is the filing of a paper in court, a day on which weather or

other conditions have made the clerk's office inaccessible, in

which event the period runs until the end of the next day which is

not one of the aforementioned days. When the period of time

prescribed or allowed is less than 11 days, intermediate Saturdays,

Sundays, and legal holidays shall be excluded in the computation.

As used in this rule and in RCFC 77(c), "legal holiday" includes

New Year's Day, Inauguration Day, Birthday of Martin Luther King

Jr., Washington's Birthday, Memorial Day, Independence Day, Labor

Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day,

and any other day appointed as a holiday by the President or the

Congress of the United States.

(b) Enlargement. When by these rules or by a notice given

thereunder or by order of court an act is required or allowed to be

done at or within a specified time, the court for cause shown may

at any time in its discretion (1) with or without motion or notice

order the period enlarged if request therefor is made before the

expiration of the period originally prescribed or as extended by a

previous order, or (2) upon motion made after the expiration of the

specified period permit the act to be done where the failure to act

was the result of excusable neglect; but it may not extend the time

for taking any action under RCFC 52(b), 54(d)(1), 59(b), (d), and

(e), and 60(b), except to the extent and under the conditions

stated in them.

(c) [Rescinded in federal rule.]

(d) [Not used.]

(e) Additional Time After Service under RCFC 5(b)(2)(B), (C), or

(D). Whenever a party has the right or is required to do some act

or take some proceedings within a prescribed period after the

service of a notice or other paper upon the party, and the notice

or paper is served upon the party under RCFC 5(b)(2)(B), (C), or

(D), 3 days shall be added to the prescribed period.

-MISC1-

RULES COMMITTEE NOTE

RCFC 6 has been changed to conform to FRCP 6. In particular, that

part of subdivision (b) which specified the content of motions for

enlargement has been moved to a new RCFC 6.1 "Enlargements of

Time."

-End-

-CITE-

28 USC APPENDIX Rule 6.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS,

AND ORDERS

-HEAD-

Rule 6.1. Enlargements of Time

-STATUTE-

Every motion for enlargement of time must set forth therein the

specific number of additional days requested, the day to which the

enlargement is to run, the extent to which the time for the

performance of the particular act has been previously enlarged, and

the reason or reasons upon which the motion for enlargement is

based. Motions for enlargement of time must include a

representation that the moving party has discussed the motion with

opposing counsel and a statement indicating whether an opposition

will be filed or, if opposing counsel cannot be consulted, an

explanation of the efforts that were made to do so.

-MISC1-

RULES COMMITTEE NOTE

New RCFC 6.1 has no FRCP counterpart. The text of the new rule

formerly appeared in these rules as part of RCFC 6(b). However, the

language in former RCFC 6(b) which addressed the content of the

reasons offered in support of a motion for enlargement of time has

been stricken as unnecessary.

-End-

-CITE-

28 USC APPENDIX III. PLEADINGS AND MOTIONS 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

III. PLEADINGS AND MOTIONS

-HEAD-

III. PLEADINGS AND MOTIONS

-End-

-CITE-

28 USC APPENDIX Rule 7 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 7. Pleadings Allowed; Form of Motions

-STATUTE-

(a) Pleadings. There shall be a complaint and an answer; if the

answer contains a counterclaim or offset or a plea of fraud, there

shall be a reply thereto. There shall be such third-party pleadings

as are permitted by RCFC 14. No other pleading shall be allowed,

except that the court may order a reply to an answer or to a

third-party answer.

(b) Motions and Other Papers.

(1) An application to the court for an order shall be by motion

which, unless made during a hearing or trial, shall be made in

writing, shall state with particularity the grounds therefor, and

shall set forth the relief or order sought. Any motion,

objection, or response may be accompanied by a brief or

memorandum, and, if necessary, by supporting affidavits that

shall be attached to the motion. Any motion may be accompanied by

a proposed order.

(2) The rules applicable to captions and other matters of form

of pleadings apply to all motions and other papers provided for

by these rules. See RCFC 5.1, 5.2 and 10(a).

(3) All motions shall be signed in accordance with RCFC 11. See

RCFC 5.3(d).

(c) Demurrers, Pleas, etc., Abolished. Demurrers, pleas, and

exceptions for insufficiency of a pleading shall not be used.

-MISC1-

RULES COMMITTEE NOTE

Minor grammatical changes have been introduced.

-End-

-CITE-

28 USC APPENDIX Rule 7.1 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 7.1. Time for Filing

-STATUTE-

(a) Responses and Objections. Unless otherwise provided in these

rules or by order of the court, responses or objections to written

motions shall be filed within 14 days after service of the motion.

(b) Replies. Replies to responses or objections shall be filed

within 7 days after service of the response or objection.

(c) Motions Under RCFC 12(b), 12(c), 56 and 56.1. Responses to

these motions shall be filed within 28 days after service of the

motion and replies thereto within 14 days of the service of the

response.

(d) Leave of Court. If the subject filing is pursuant to leave of

court on motion by a party, time for any response runs from the

date of filing and not the date of service.

(e) Cross-motions. Where the responding party files a

cross-motion, it shall be contained in the same document as the

response to the original motion; the response to the cross-motion

shall be contained in the same document as the reply subject to

page limitations in RCFC 5.2(b)(2). Where a cross-motion is filed,

the parties shall have the same times to respond and to reply to

the cross-motion as to an original motion.

-MISC1-

RULES COMMITTEE NOTE

RCFC 7.1 has no FRCP counterpart. The rule formerly appeared in

these rules as RCFC 83.2. The renumbering of RCFC 83.2 is intended

to reflect its more logical placement in the organizational

structure of the court's rules.

-End-

-CITE-

28 USC APPENDIX Rule 8 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 8. General Rules of Pleading

-STATUTE-

(a) Claims for Relief. A pleading which sets forth a claim for

relief, whether an original claim, counterclaim, or third-party

claim, shall contain (1) a short and plain statement of the grounds

upon which the court's jurisdiction depends, unless the court

already has jurisdiction and the claim needs no new grounds of

jurisdiction to support it, (2) a short and plain statement of the

claim showing that the pleader is entitled to relief, and (3) a

demand for judgment for the relief the pleader seeks. Relief in the

alternative or of several different types may be demanded.

(b) Defenses; Form of Denials. A party shall state in short and

plain terms the party's defenses to each claim asserted and shall

admit or deny the averments upon which the adverse party relies. If

a party is without knowledge or information sufficient to form a

belief as to the truth of an averment, the party shall so state and

this has the effect of a denial. Denials shall fairly meet the

substance of the averments denied. When a pleader intends in good

faith to deny only a part or a qualification of an averment, the

pleader shall specify so much of it as is true and material and

shall deny only the remainder. Unless the pleader intends in good

faith to controvert all the averments of the preceding pleading,

the pleader may make denials as specific denials of designated

averments or paragraphs, or may generally deny all the averments

except such designated averments or paragraphs as the pleader

expressly admits; but, when the pleader does so intend to

controvert all its averments, including averments of the grounds

upon which the court's jurisdiction depends, the pleader may do so

by general denial subject to the obligations set forth in RCFC 11.

(c) Affirmative Defenses. In pleading to a preceding pleading, a

party shall set forth affirmatively accord and satisfaction,

arbitration and award, assumption of risk, contributory negligence,

discharge in bankruptcy, duress, estoppel, failure of

consideration, fraud, illegality, laches, license, payment,

release, res judicata, statute of frauds, statute of limitations,

waiver, and any other matter constituting an avoidance or

affirmative defense. When a party has mistakenly designated a

defense as a counterclaim or a counterclaim as a defense, the court

on terms, if justice so requires, shall treat the pleading as if

there had been a proper designation.

(d) Effect of Failure to Deny. Averments in a pleading to which a

responsive pleading is required, other than those as to the amount

of damage, are admitted when not denied in the responsive pleading.

Averments in a pleading to which no responsive pleading is required

or permitted shall be taken as denied or avoided.

(e) Pleading to be Concise and Direct; Consistency.

(1) Each averment of a pleading shall be simple, concise, and

direct. No technical forms of pleading or motions are required.

(2) A party may set forth two or more statements of a claim or

defense alternately or hypothetically, either in one count or

defense or in separate counts or defenses. When two or more

statements are made in the alternative and one of them if made

independently would be sufficient, the pleading is not made

insufficient by the insufficiency of one or more of the

alternative statements. A party may also state as many separate

claims or defenses as the party has regardless of consistency and

whether based on legal or equitable grounds. All statements shall

be made subject to the obligations set forth in RCFC 11.

(f) Construction of Pleadings. All pleadings shall be so

construed as to do substantial justice.

-MISC1-

RULES COMMITTEE NOTE

Minor changes have been made in subdivisions (b) and (c) to

conform this rule to FRCP 8. In addition, subdivision (c) was

amended to require the pleading, as an affirmative defense, of

assumption of risk and contributory negligence. Although these

defenses are typically associated with tort claims (i.e., with

claims outside of this court's jurisdiction), there can be

circumstances in which reliance on these defenses would be

appropriate, for example, in congressional reference cases, in some

aspects of contract litigation, and with respect to counterclaims

asserted pursuant to 28 U.S.C. Sec. 2508.

-End-

-CITE-

28 USC APPENDIX Rule 9 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 9. Pleading Special Matters

-STATUTE-

(a) Capacity. It is not necessary to aver the capacity of a party

to sue or be sued or the authority of a party to sue or be sued in

a representative capacity or the legal existence of an organized

association of persons that is made a party, except to the extent

required to show the jurisdiction of the court. When a party

desires to raise an issue as to the legal existence of any party or

the capacity of any party to sue or be sued or the authority of a

party to sue or be sued in a representative capacity, the party

desiring to raise the issue shall do so by specific negative

averment, which shall include such supporting particulars as are

peculiarly within the pleader's knowledge.

(b) Fraud, Mistake, Condition of the Mind. In all averments of

fraud or mistake, the circumstances constituting fraud or mistake

shall be stated with particularity. Malice, intent, knowledge, and

other condition of mind of a person may be averred generally.

(c) Conditions Precedent. In pleading the performance or

occurrence of conditions precedent, it is sufficient to aver

generally that all conditions precedent have been performed or have

occurred. A denial of performance or occurrence shall be made

specifically and with particularity.

(d) Official Document or Act. In pleading an official document or

official act it is sufficient to aver that the document was issued

or the act done in compliance with law.

(e) Judgment. In pleading a judgment or decision of a domestic or

foreign court, judicial or quasi-judicial tribunal, or of a board

or officer, it is sufficient to aver the judgment or decision

without setting forth matter showing jurisdiction to render it.

(f) Time and Place. For the purpose of testing the sufficiency of

a pleading, averments of time and place are material and shall be

considered like all other averments of material matter.

(g) Special Damage. When items of special damage are claimed,

they shall be specifically stated.

(h) Special Matters Required in Complaint. The complaint shall

include:

(1) Action by Other Tribunal or Body. Any action on the claim

taken by Congress or by any department or agency of the United

States, or in any judicial proceeding, including any in the Tax

Court of the United States.

(2) Citations of Statutes, Regulations, Orders. A clear

citation of the Act of Congress, regulation of an executive

department or agency, or Executive Order of the President, where

the claim is founded upon such an act, regulation, or order.

(3) Contracts or Treaties. If the claim is founded upon a

contract or treaty with the United States, a description of the

contract or treaty sufficient to identify it. In addition, the

plaintiff shall plead the substance of those portions of the

contract or treaty on which the plaintiff relies, or shall annex

to the complaint a copy of the contract or treaty, indicating the

provisions thereof on which the plaintiff relies.

(4) Patent Suits. In any patent suit, the claim or claims of

the patent or patents alleged to be infringed.

(5) Ownership of Claim; Assignment. If the plaintiff is the

owner by assignment or other transfer of the claim, in whole or

in part, when and upon what consideration the assignment or

transfer was made.

(6) Tax Refund Suits. In any action for refund of federal tax,

for each tax year or period for which a refund is sought, the

amount, date, and place of each payment to be refunded; the date

and place the return, if any, was filed; the name, address, and

identification number of the taxpayer or taxpayers appearing on

the tax return; the date and place the claim for refund was

filed; and the identification number for each plaintiff, if

different from the identification number of the taxpayer. A copy

of the claim for refund shall be annexed to the complaint.

(7) Inverse Condemnation Suits. In any action for the payment

of just compensation pursuant to the Fifth Amendment to the

United States Constitution, identification of the specific

property interest which plaintiff contends has been taken by the

United States.

-MISC1-

RULES COMMITTEE NOTE

Subdivision (a) (relating to "Capacity") is modified so as to

conform the text to FRCP 9.

Subdivision (h)(6) (relating to special requirements applicable

to complaints in "Tax Refund Suits") is amended by prescribing, as

additional information to be included as part of a tax refund

complaint, the following: (i) the taxpayer's or filer's

identification number and (ii) a copy of the claim for refund.

Subdivision (h)(7) was added as a means to clarify the nature of

the property interest asserted to have been taken in an inverse

condemnation action.

-End-

-CITE-

28 USC APPENDIX Rule 10 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 10. Form of Pleadings

-STATUTE-

(a) Caption; Names of Parties. Every pleading shall contain a

caption setting forth the name of the court, the title of the

action, the file number, and a designation as in RCFC 7(a). In the

complaint the title of the action shall include the names of all

the parties, see RCFC 20(a), the United States being designated as

the party defendant, but in other pleadings it is sufficient to

state the name of the first party on each side with an appropriate

indication of other parties. (For Notice of Appeal see RCFC 58.1).

(b) Paragraphs; Separate Statements. All averments of claim or

defense shall be made in numbered paragraphs, the contents of each

of which shall be limited as far as practicable to a statement of a

single set of circumstances; and a paragraph may be referred to by

number in all succeeding pleadings. Each claim founded upon a

separate transaction or occurrence and each defense other than

denials shall be stated in a separate count or defense whenever a

separation facilitates the clear presentation of the matters set

forth.

(c) Adoption by Reference; Exhibits. Statements in a pleading may

be adopted by reference in a different part of the same pleading or

in another pleading or in any motion. A copy of any written

instrument which is an exhibit to a pleading is a part thereof for

all purposes.

-MISC1-

RULES COMMITTEE NOTE

RCFC 10 has been changed in minor respects in order to achieve

closer textual conformity with FRCP 10. The deleted last sentence

of subdivision (a) was moved to RCFC 5.3.

The last sentence of former subdivision (c) ("unless otherwise

indicated, but the adverse party shall not be deemed to have

admitted the truth of the allegations in such exhibit merely

because the adverse party has failed to deny them explicitly") was

omitted as not in conformity with the federal rule, and because it

was deemed unnecessary.

-End-

-CITE-

28 USC APPENDIX Rule 11 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 11. Signing of Pleadings, Motions, and Other Papers;

Representations to Court; Sanctions

-STATUTE-

(a) Signature. Every pleading, motion, and other paper shall be

signed by or for the attorney of record in the signing attorney's

own individual name, or, if the party is not represented by an

attorney, shall be signed by the party. Each paper shall state the

signer's address and telephone number, if any. Except when

otherwise specifically provided by rule or statute, pleadings need

not be verified or accompanied by affidavit. An unsigned paper

shall be stricken unless the omission is corrected promptly after

being called to the attention of the attorney or party.

(b) Representations to Court. By presenting to the court (whether

by signing, filing, submitting, or later advocating) a pleading,

written motion, or other paper, an attorney or unrepresented party

is certifying that to the best of the person's knowledge,

information, and belief, formed after an inquiry reasonable under

the circumstances,

(1) it is not being presented for any improper purpose, such as

to harass or to cause unnecessary delay or needless increase in

the cost of litigation;

(2) the claims, defenses, and other legal contentions therein

are warranted by existing law or by a nonfrivolous argument for

the extension, modification, or reversal of existing law or the

establishment of new law;

(3) the allegations and other factual contentions have

evidentiary support or, if specifically so identified, are likely

to have evidentiary support after a reasonable opportunity for

further investigation or discovery; and

(4) the denials of factual contentions are warranted on the

evidence or, if specifically so identified, are reasonably based

on a lack of information or belief.

(c) Sanctions. If, after notice and a reasonable opportunity to

respond, the court determines that subdivision (b) has been

violated, the court may, subject to the conditions stated below,

impose an appropriate sanction upon the attorneys, law firms, or

parties that have violated subdivision (b) or are responsible for

the violation.

(1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall

be made separately from other motions or requests and shall

describe the specific conduct alleged to violate subdivision

(b). It shall be served as provided in RCFC 5, but shall not be

filed with or presented to the court unless, within 21 days

after service of the motion (or such other period as the court

may prescribe), the challenged paper, claim, defense,

contention, allegation, or denial is not withdrawn or

appropriately corrected. If warranted, the court may award to

the party prevailing on the motion the reasonable expenses and

attorney's fees incurred in presenting or opposing the motion.

Absent exceptional circumstances, a law firm shall be held

jointly responsible for violations committed by its partners,

associates, and employees.

(B) On Court's Initiative. On its own initiative, the court

may enter an order describing the specific conduct that appears

to violate subdivision (b) and directing an attorney, law firm,

or party to show cause why it has not violated subdivision (b)

with respect thereto.

(2) Nature of Sanction; Limitations. A sanction imposed for

violation of this rule shall be limited to what is sufficient to

deter repetition of such conduct or comparable conduct by others

similarly situated. Subject to the limitations in subparagraphs

(A) and (B), the sanction may consist of, or include, directives

of a nonmonetary nature, an order to pay a penalty into court,

or, if imposed on motion and warranted for effective deterrence,

an order directing payment to the movant of some or all of the

reasonable attorneys' fees and other expenses incurred as a

direct result of the violation.

(A) Monetary sanctions may not be awarded against a

represented party for a violation of subdivision (b)(2).

(B) Monetary sanctions may not be awarded on the court's

initiative unless the court issues its order to show cause

before a voluntary dismissal or settlement of the claims made

by or against the party which is, or whose attorneys are, to be

sanctioned.

(3) Order. When imposing sanctions, the court shall describe

the conduct determined to constitute a violation of this rule and

explain the basis for the sanction imposed.

(d) Inapplicability to Discovery. Subdivisions (a) through (c) of

this rule do not apply to disclosures and discovery requests,

responses, objections, and motions that are subject to the

provisions of RCFC 26 through 37.

-MISC1-

RULES COMMITTEE NOTE

The changes to RCFC 11 reflect the corresponding revision of FRCP

11 that was introduced in December 1993. For a detailed explanation

of the reasons for revision of FRCP 11, see 28 U.S.C.A. Rule 11

Advisory Committee Notes (West Supp. 2001).

-End-

-CITE-

28 USC APPENDIX Rule 12 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 12. Defenses and Objections - When and How Presented - By

Pleading or Motion - Motion for Judgment on Pleadings

-STATUTE-

(a) When Presented.

(1) The United States shall file its answer to the complaint

within 60 days after service of the pleading in which the claim

is asserted. After service of an answer containing a

counterclaim, offset, or plea of fraud, plaintiff shall have 20

days within which to file a reply to the counterclaim, offset, or

plea of fraud. If a reply to an answer or a responsive pleading

to a third-party complaint or answer is ordered by the court, the

reply or responsive pleading shall be filed within 20 days after

service of the order unless the order otherwise directs.

(2) Unless a different time is fixed by court order, the

service of a motion permitted under this rule or RCFC 56 alters

these periods of time, as follows:

(A) if the court denies or partially denies or partially

allows the motion or postpones its disposition until the trial

on the merits or the motion is withdrawn, the responsive

pleading shall be filed within 10 days after notice of the

court's action, or the date on which the motion is withdrawn,

or by the date the response otherwise would have been due,

whichever is later;

(B) if the court grants a motion for a more definite

statement, the responsive pleading shall be filed within 10

days after the service of the more definite statement.

(b) How Presented. Every defense, in law or fact, to a claim for

relief in any pleading, whether a claim, counterclaim, or

third-party claim, shall be asserted in the responsive pleading

thereto if one is required, except that the following defenses may

at the option of the pleader be made by motion: (1) lack of

jurisdiction over the subject matter, (2) lack of jurisdiction over

the person, (3) [not used]; (4) insufficiency of process, (5)

insufficiency of service of process, (6) failure to state a claim

upon which relief can be granted, (7) failure to join a party under

RCFC 19. A motion making any of these defenses shall be made before

pleading if a further pleading is permitted. No defense or

objection is waived by being joined with one or more other defenses

or objections in a responsive pleading or motion. If a pleading

sets forth a claim for relief to which the adverse party is not

required to serve a responsive pleading, the adverse party may

assert at the trial any defense in law or fact to that claim for

relief. If, on a motion asserting the defense numbered (6) to

dismiss for failure of the pleading to state a claim upon which

relief can be granted, matters outside the pleading are presented

to and not excluded by the court, the motion shall be treated as

one for summary judgment and disposed of as provided in RCFC 56,

and all parties shall be given reasonable opportunity to present

all material made pertinent to such a motion by RCFC 56.

(c) Motion for Judgment on the Pleadings. After the pleadings are

closed, but within such time as not to delay the trial, any party

may move for judgment on the pleadings. If, on a motion for

judgment on the pleadings, matters outside the pleadings are

presented to and not excluded by the court, the motion shall be

treated as one for summary judgment and disposed of as provided in

RCFC 56, and all parties shall be given reasonable opportunity to

present all material made pertinent to such a motion by RCFC 56.

(d) Preliminary Hearings. The defenses specifically enumerated in

subdivision (b) of this rule, whether made in a pleading or by

motion, and the motion for judgment mentioned in subdivision (c) of

this rule shall be heard and determined before trial on application

of any party, unless the court orders that the hearing and

determination thereof be deferred until the trial.

(e) Motion for More Definite Statement. If a pleading to which a

responsive pleading is permitted is so vague or ambiguous that a

party cannot reasonably be required to frame a responsive pleading,

the party may move for a more definite statement before interposing

a responsive pleading. The motion shall point out the defects

complained of and the details desired. If the motion is granted and

the order of the court is not obeyed within 10 days after notice of

the order or within such other time as the court may fix, the court

may strike the pleading to which the motion was directed or make

such order as it deems just.

(f) Motion to Strike. Upon motion made by a party before

responding to a pleading or, if no responsive pleading is permitted

by these rules, upon motion made by a party within 20 days after

the service of the pleading upon the party or upon the court's own

initiative at any time, the court may order stricken from any

pleading any insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter.

(g) Consolidation of Defenses in Motion. A party who makes a

motion under this rule may join with it any other motions herein

provided for and then available to the party. If a party makes a

motion under this rule but omits therefrom any defense or objection

then available to the party which this rule permits to be raised by

motion, the party shall not thereafter make a motion based on the

defense or objection so omitted, except a motion as provided in

subdivision (h)(2) of this rule on any of the grounds there stated.

(h) Waiver or Preservation of Certain Defenses.

(1) A defense of lack of jurisdiction over the person; or

insufficiency of process, or insufficiency of service of process

is waived (A) if omitted from a motion in the circumstances

described in subdivision (g), or (B) if it is neither made by

motion under this rule nor included in a responsive pleading or

an amendment thereof permitted by RCFC 15(a) to be made as a

matter of course.

(2) A defense of failure to state a claim upon which relief can

be granted, a defense of failure to join a party indispensable

under RCFC 19, and an objection of failure to state a legal

defense to a claim, may be made in any pleading permitted or

ordered under RCFC 7(a), or by motion for judgment on the

pleadings, or at the trial on the merits.

(3) Whenever it appears by suggestion of the parties or

otherwise that the court lacks jurisdiction of the subject

matter, the court shall dismiss the action.

-MISC1-

RULES COMMITTEE NOTE

To more closely parallel FRCP 12, subdivisions (b) and (h) of the

court's rule are enlarged by adding the defense of "insufficiency

of service of process" and the defense of "failure to join a party

indispensable under Rule 19." Further, as an aid to practitioners,

most of whom are familiar with practice in the district courts, the

enumeration of defenses in subdivision (b) has been brought into

conformity with the corresponding subdivision of the Federal Rules

of Civil Procedure. Finally, subdivision (i) ("Suspension of

Discovery") is deleted. That subdivision is not part of the

comparable federal rule, and its subject matter is more

appropriately dealt with as a case management matter.

-End-

-CITE-

28 USC APPENDIX Rule 13 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 13. Counterclaim

-STATUTE-

(a) Compulsory Counterclaims. The answer shall state as a

counterclaim any claim which, at the time of serving the answer,

the defendant has against any plaintiff, if it arises out of the

transaction or occurrence that is the subject matter of the

opposing party's claim and does not require for its adjudication

the presence of third parties of whom the court cannot acquire

jurisdiction. But the answer need not state the claim if at the

time the action was commenced the claim was the subject of another

pending action.

(b) Permissive Counterclaims. The answer may state as a

counterclaim any claim against an opposing party not arising out of

the transaction or occurrence that is the subject matter of the

opposing party's claim.

(c) Counterclaim Exceeding Opposing Claim. A counterclaim may or

may not diminish or defeat the recovery sought by the opposing

party. It may claim relief exceeding in amount or different in kind

from that sought in the pleading of the opposing party.

(d) Counterclaim Against the United States. These rules shall not

be construed to enlarge beyond the limits now fixed by law the

right to assert counterclaims or to claim credits against the

United States or an officer or agency thereof.

(e) Counterclaim Maturing or Acquired After Pleading. A claim

which either matured or was acquired by the defendant after serving

its pleading may, with the permission of the court, be presented as

a counterclaim by supplemental pleading.

(f) Omitted Counterclaim. When the defendant fails to set up a

counterclaim through oversight, inadvertence or excusable neglect,

or when justice requires, it may by leave of court set up the

counterclaim by amendment.

(g) Cross-Claim Against Co-Party. [Not used.]

(h) Joinder of Additional Parties. [Not used.]

(i) Separate Trials; Separate Judgments. If the court orders

separate trials as provided in RCFC 42(b), judgment on a

counterclaim may be rendered in accordance with the terms of RCFC

54(b) when the court has jurisdiction so to do, even if the claims

of the opposing party have been dismissed or otherwise disposed of.

-MISC1-

RULES COMMITTEE NOTE

Subdivision (d) was changed to add the language of FRCP 13(d) in

recognition of the fact that there is no statutory bar to

third-party defendants filing counterclaims against the United

States. See 41 U.S.C. Sec. 114 and RCFC 14. Other significant

differences between this version and the federal rule have been

preserved as necessary in light of the fact that the United States

is the only defendant in this court.

-End-

-CITE-

28 USC APPENDIX Rule 14 01/06/03

-EXPCITE-

TITLE 28 - APPENDIX

RULES OF THE UNITED STATES COURT OF FEDERAL CLAIMS

III. PLEADINGS AND MOTIONS

-HEAD-

Rule 14. Third-Party Practice

-STATUTE-

(a) Summoned Parties.

(1) On motion of the United States, the court may summon any

third person against whom the United States may be asserting a

claim or contingent claim for the recovery of money paid by the

United States in respect of the transaction or matter which

constitutes the subject matter of the suit to appear as a party

and defend the third party's interest, if any, in such suit.

(2) The motion for a summons shall be accompanied by an

appropriate pleading setting forth the claim or contingent claim

which it is asserting against such third person.

(3) If the court grants the motion of the United States, the

clerk shall issue an original and one copy of such summons for

each person to be summoned. The summons shall contain the names

of the parties and a statement of the time within which the party

summoned is required to appear and answer. The summons shall also

state that the United States is asserting a claim against such

person, as described in the accompanying pleading of the United

States. The summons shall indicate that it is accompanied by a

copy or copies of all pleadings filed in said action, naming such

pleadings which shall be attached by the moving party. Upon

issuance of the summons, the clerk shall deliver the summons to

the Attorney General for personal service and the return of such

service shall be made directly to the clerk.

(b) Notice to Interested Parties.

(1) The court, on its own motion or on the motion of a party,

may notify any person with legal capacity to sue and be sued and

who is alleged to have an interest in the subject matter of any

pending action. Such notice shall advise of the pendency of the

action and of the opportunity to seek intervention and to assert

an interest in the action.

(2) A motion made by the plaintiff shall be filed at the time

the complaint is filed. Copies and service of such a motion shall

be as provided in RCFC 4 and 5.3(d). A motion made by the United

States shall be filed on or before the date on which the answer

is required to be filed. For good cause shown, the court may

allow any such motion to be filed at a later time.

(3) The motion for notice shall state the name and address of

such person, and set forth the interest which such person appears

to have in the action.

(4) If the court, on its own motion or on the motion of a

party, orders any third person to be notified, the clerk shall

issue an original and one copy of the notice for each third

person to be notified. The notice shall contain the names of the

parties and a statement of the time within which such third

person may appear. The notice shall indicate that it is

accompanied by a copy of the pleadings, which shall be attached

by the moving party.

(5) Upon the issuance of such notice upon motion of a party,

the notice shall be delivered by the clerk to the moving party,

who shall at the moving party's expense cause the same to be

served on the person to be notified by registered or certified

mail, return receipt requested, with the moving party to file

with the clerk the return of such service, which return shall

include the copy of the notice with return receipt attached.

(6) When the court directs the issuance of a notice to a third

person on its own motion, each of the existing parties shall, on

request of the clerk, deliver to the clerk a sufficient number of

copies of the pleadings filed by such party to provide the third

party to be notified with a copy of each of such pleadings, and

the clerk shall forthwith issue such notice as specified in

subdivision (b)(4) and shall forward the same with accompanying

copies of the pleadings to the Attorney General for service as

provided in subdivision (b)(5).

(7) When service of the notice required by subdivision (b)(4)

is to be effected upon a third person in a foreign country,

service of the notice may be made by the moving party or the

court, as required by subdivisions (b)(5) and (6), and proof of

such service may be made in the manner authorized by FRCP 4(f).

(c) Pleadings of Third Parties. Within 42 days after service upon

a third person of a summons or notice issued pursuant to this rule,

such person may file an answer, a complaint setting forth the

person's interest, if any, in the subject matter of the action and

the nature of the person's claim against the United States, or

both, which pleadings shall comply with the requirements of these

rules with respect to the filing of original complaints and

answers, except that only an original and 2 copies of a complaint

are to be filed with proof of service.

-MISC1-

RULES COMMITTEE NOTE

RCFC 14 was substantially revised. The order of the rule has been

changed to distinguish more clearly between the two types of

actions it permits with respect to entities that are not yet

parties to the suit. New subdivision (a) deals exclusively with

summons to persons whom the United States seeks to join formally as

third parties. The procedures for such summons are now gathered

under that subdivision. The same has been done with respect to

motions for notice to inform non-parties of the pendency of the

action and the opportunity to join as parties. In addition,

language in the old rule with respect to service of notice by

publication, as well as the consequences of failing to appear in

response to such notice, have been stricken. The law in this area

is unsettled; hence the possibility existed that the manner and

method of notice prescribed by the rule might not be found

constitutionally adequate in all potential situations.

It is important to note that RCFC 14 notice requirements do not

apply to the procedures for notifying potential intervenors in

procurement protest cases filed pursuant to 28 U.S.C. Sec. 1491(b).

RCFC 14 implements the authority set forth in 41 U.S.C. Sec. 114.

For service of third-party complaints see RCFC 5.

-End-