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Federal Rules of Evidence

The Federal Rules of Evidence generally govern civil and criminal proceedings in the courts of the United States and proceedings before U.S. BANKRUPTCY judges and U.S. magistrates, to the extent and with the exceptions stated in the rules. Promulgated by the U.S. Supreme Court and amended by Congress from time to time, the Federal Rules of Evidence are considered legislative enactments that have the force of statute, and courts interpret them as they would any other statute, employing traditional tools of statutory construction in applying their provisions.

The rules are designed to secure fairness in JUDICIAL ADMINISTRATION, to eliminate unjustifiable expense and delay, and to promote the growth and development of the law of evidence so that truth may be ascertained and proceedings justly resolved. Huff v. White Motor Corporation, 609 F.2d 286 (7th Cir. Ind. 1979). But the rules are not intended to result in an exhaustive search for a total and complete understanding of every civil and criminal case that comes before a federal court. Rather, the rules are meant to assist lawyer-adversaries and common sense triers-of-fact in resolving particularized legal disputes. Accordingly, the rules give courts authority to adapt the laws of evidence to circumstances as they arise.

The Federal Rules of Evidence were adopted by order of the Supreme Court on November 20, 1972, transmitted to Congress by Chief Justice WARREN E. BURGER on February 5, 1973, and became effective on July 1, 1973. In enacting these rules, the Supreme Court and Congress did not intend to wipe out years of COMMON LAW development in the field of evidence. To the contrary, the Federal Rules of Evidence largely incorporate the judge-made, common law evidentiary rules in existence at the time of their adoption, and where the federal rules contain gaps or omissions, courts may answer unresolved questions by relying on common law precedent. Like their common law predecessors, the federal rules govern the overall admissibility of evidence, the limitations of relevant evidence, the definition of prejudicial and cumulative evidence, the admissibility of HEARSAY, lay and EXPERT TESTIMONY, the nature of evidentiary presumptions, the grounds for authentication and identification of documentary evidence, and the scope of evidentiary privileges, like the work product, attorney-client, and doctor-patient privileges.

The Federal Rules of Evidence apply to (1) the U.S. district courts, including the federal district court in Washington, D.C.; (2) the federal district courts located in Puerto Rico, Guam, the Virgin Islands, and the Northern Mariana Islands; (3) the U.S. COURTS OF APPEALS; (4) the U.S. Claims Court; (5) U.S. bankruptcy courts and U.S. magistrates. Although the rules do not specify whether they apply to the U.S Supreme Court, that Court has applied the rules as if they do. Pursuant to EXECUTIVE ORDER, military courts-martial are required to apply rules of evidence that substantially conform to the Federal Rules of Evidence. Executive Order No. 12473. However, the Federal Rules of Evidence do not generally apply to administrative agencies.

The Federal Rules of Evidence apply to most civil actions, including ADMIRALTY and maritime cases, to most criminal proceedings, and to CONTEMPT proceedings, except contempt proceedings in which the court may act summarily. But the rules do not apply to criminal proceedings to issue an arrest warrant, a SEARCH WARRANT, or a summons, to preliminary examinations in criminal cases, such as hearings on motions to suppress evidence, to proceedings for EXTRADITION or rendition, to sentencing hearings, to PROBATION hearings, or to hearings to set bail. FRE Rule 1101.

Nor do the Federal Rules of Evidence generally apply in GRAND JURY proceedings. A grand jury may compel the production of evidence or the testimony of witnesses as the grand jury considers appropriate, and its operation generally is unrestrained by technical, procedural, and evidentiary rules governing the conduct of criminal trials. However, the rules governing privileges generally do apply at grand jury proceedings, and thus grand-jury witnesses may refuse to disclose information on the grounds that it is protected by ATTORNEY-CLIENT PRIVILEGE, for example.

In some instances the Federal Rules of Evidence apply only to the extent that they have not been superseded by statute or other Supreme Court rules governing certain proceedings in particular areas of law. For example, the Federal Rules of Evidence do not fully apply to the trial of misdemeanors and other petty offenses before U.S. magistrates, to the review of orders by the Secretary of Agriculture under the Perishable Agricultural Commodities Act of 1930 (7U.S.C.A. 499f, 499g), to naturalization proceedings under the Immigration and Nationality Act (8 U.S.C.A. 1421-1429), to prize proceedings in admiralty under 10 U.S.C.A. sections 7651-7681, or to proceedings reviewing the orders of the Secretary of the Interior under 15 U.S.C.A 522.

In 1974, the National Conference of Commissioners on Uniform State Laws adopted the Uniform Rules of Evidence, which were designed to be identical to the Federal Rules of Evidence. Cases interpreting the Federal Rules of Evidence are helpful in the analysis of state rules that are based on the Federal Rules of Evidence. In fact, some jurisdictions have held that a rule of evidence patterned after a Federal Rule of Evidence should be construed in accordance with federal court decisions interpreting the federal rule. Thus, state courts in these jurisdictions will look at the federal rule's history and purposes in interpreting the provisions of an identical state rule of evidence. However, at least one state court has held that because rules of evidence, to the extent that they do not impinge upon U.S. constitutional guarantees, are a matter of state law, federal decisions interpreting the federal rules are not of controlling precedential significance. State v. Outlaw, 108 Wis.2d 112, 321N.W.2d 145 (Wis., Jul 02, 1982)


American Jurisprudence. 2002. St. Paul, Minn.: West.

Bocchino, Anthony J., and David A. Sonenshein. 2003. Federal Rules of Evidence with Objections. South Bend, Ind.: National Institute for Trial Advocacy.

Johnson, Lori A. 2003."Creating Rules of Procedure for Federal Courts: Administrative Prerogative or Legislative Policymaking." The Justice System Journal 24 (winter).


Burger, Warren Earl; Grand Jury.

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