Federal Rules of Evidence (FRE)
Overview
The FRE comprises 68 rules governing the admissibility of evidence in federal proceedings. Effective January 1, 1975; restyled in 2011 (Prof. Daniel Capra served as Chief Reporter for restyling). The rules apply in federal courts; states have adopted similar versions with variations.
Key Rules by Topic
Relevance (Rules 401–415)
Rule 401 — Test for Relevant Evidence Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. The standard is minimal — any tendency suffices.
Rule 403 — Exclusion of Relevant Evidence The court may exclude relevant evidence if its probative value is substantially outweighed by the danger of: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Note the asymmetry: probative value must be substantially outweighed.
Rule 404 — Character Evidence General propensity ban: evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with that character or trait. Exceptions:
- MIMIC (Rule 404(b)): Prior acts admissible for motive, intent, mistake/lack of accident, identity, common plan/scheme. Requires notice in criminal cases.
- Defendant in criminal case may offer evidence of own pertinent character trait; prosecution may rebut.
- Victim character: accused may offer evidence of victim’s pertinent character trait; prosecution may rebut; in homicide, prosecution may offer evidence of victim’s peacefulness to rebut claim of self-defense.
Rule 405 — Methods of Proving Character When character evidence is admissible: reputation or opinion testimony always permitted. Specific instances of conduct permitted only when character or character trait is an essential element of a charge, claim, or defense (character “in issue” — e.g., defamation, child custody).
Rule 406 — Habit; Routine Practice Evidence of a person’s habit or an organization’s routine practice is admissible to prove that on a particular occasion the person or organization acted in accordance with the habit or routine. More specific and regular than character; does not require corroboration or eyewitness.
Rule 407 — Subsequent Remedial Measures Measures taken after an event that would have made the event less likely to occur are not admissible to prove negligence, culpable conduct, defect, or need for warning. Permitted for impeachment, and if disputed, to prove ownership, control, or feasibility of precautionary measures.
Rule 408 — Compromise Offers and Negotiations Offers to compromise, actual compromise, and related statements/conduct are inadmissible to prove or disprove liability or the validity/amount of a disputed claim. Permitted for other purposes (e.g., proving bias, negating contention of undue delay, proving obstruction).
Rule 410 — Pleas, Plea Discussions, and Related Statements Withdrawn guilty pleas, nolo contendere pleas, and statements made during plea discussions with the prosecutor are inadmissible against the defendant. Limited exception: statement used for completeness when another statement from the same proceeding has been introduced.
Witnesses (Rules 601–616)
Rule 601 — Competency Every person is competent to be a witness unless the rules provide otherwise. In civil cases where state law supplies the rule of decision, state law governs competency.
Rule 602 — Need for Personal Knowledge A witness may testify only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter (does not apply to expert witnesses under Rule 703).
Rule 607 — Who May Impeach Any party, including the party that called the witness, may attack the witness’s credibility.
Rule 608 — Character for Truthfulness
- Reputation or opinion testimony as to truthfulness/untruthfulness of a witness is admissible (opinion for untruthfulness only after attacked).
- Specific instances of conduct probative of truthfulness or untruthfulness: may be inquired into on cross-examination; no extrinsic evidence allowed (collateral matter rule).
Rule 609 — Impeachment by Prior Criminal Conviction
- Crimes punishable by death or imprisonment over one year (felonies): admissible subject to Rule 403 balancing for non-party witnesses; for criminal defendant witnesses, probative value must outweigh prejudicial effect.
- Crimes involving dishonesty or false statement (crimen falsi): automatically admissible regardless of punishment; no balancing.
- Convictions over 10 years old: admissible only if probative value substantially outweighs prejudicial effect.
Rule 611 — Mode and Order of Examining Witnesses Court controls order and mode of examining witnesses. Cross-examination limited to subject matter of direct and credibility. Leading questions permitted on cross-examination; also on direct for hostile witnesses or adverse parties.
Rule 613 — Witness’s Prior Statement Prior inconsistent statements: extrinsic evidence of a prior inconsistent statement not admissible unless the witness is given an opportunity to explain or deny, and the opposing party is given opportunity to examine on the issue.
Hearsay (Rules 801–807)
Rule 801 — Definitions
- Hearsay: an out-of-court statement offered to prove the truth of the matter asserted.
- Non-hearsay by definition (801(d)(1)): Prior inconsistent statement made under oath at proceeding; prior consistent statement to rebut charge of recent fabrication or improper influence; statement of identification.
- Non-hearsay by definition (801(d)(2)): Opposing party’s statement — made by party, adoptive admission, authorized admission, agent/employee admission within scope of relationship, co-conspirator statement during and in furtherance of conspiracy.
Rule 802 — Hearsay Rule Hearsay is not admissible unless an exception applies.
Rule 803 — Exceptions (Declarant Availability Immaterial) Key exceptions:
- 803(1): Present sense impression — statement describing event made while or immediately after perceiving it.
- 803(2): Excited utterance — statement relating to startling event made while declarant was under stress of excitement.
- 803(3): Then-existing mental, emotional, or physical condition (state of mind; not memory or belief about past events).
- 803(4): Statement made for medical diagnosis or treatment — including cause if pertinent to diagnosis.
- 803(5): Recorded recollection — witness once had knowledge, now insufficient memory; record made when fresh.
- 803(6): Records of regularly conducted activity (business records) — made at or near the time, by person with knowledge, as regular practice, kept in regular course of business; no indication of untrustworthiness.
- 803(8): Public records — activities of the office, matters observed under duty, factual findings of investigation (with trustworthiness limitations in criminal cases).
- 803(18): Learned treatises — may be read into evidence if established as reliable by expert testimony or judicial notice; not received as exhibit.
Rule 804 — Exceptions Requiring Declarant Unavailability Unavailability includes: privilege, refusal to testify, lack of memory, death/illness, absence despite reasonable means.
- 804(b)(1): Former testimony — given at trial, hearing, or deposition where party against whom it is offered had opportunity and similar motive to develop by examination.
- 804(b)(2): Dying declaration — statement about cause or circumstances of impending death, by declarant who believed death was imminent (criminal homicide and civil cases only).
- 804(b)(3): Statement against interest — so contrary to proprietary/pecuniary interest, or creating criminal liability, that reasonable person would not have made it unless believing it true; for criminal cases, corroborating circumstances required if offered to exculpate accused.
Rule 807 — Residual Exception Hearsay admitted if: (1) not covered by 803 or 804; (2) equivalent trustworthiness; (3) necessary (more probative on point than other reasonably available evidence); (4) admission serves interests of justice; (5) notice given to adverse party.
Opinions and Expert Testimony (Rules 701–706)
Rule 701 — Lay Witness Opinion Lay witness opinion permitted if: rationally based on witness’s perception; helpful to clearly understanding testimony or determining fact in issue; not based on scientific, technical, or other specialized knowledge (which would require Rule 702 compliance).
Rule 702 — Expert Testimony (Daubert Standard) Expert may testify if: (a) expert’s scientific, technical, or other specialized knowledge will help trier of fact; (b) testimony based on sufficient facts or data; (c) testimony is product of reliable principles and methods; (d) expert reliably applied the principles and methods to the facts of the case. Court acts as gatekeeper. Daubert factors for scientific evidence: theory testable and tested, subjected to peer review and publication, known or potential error rate, generally accepted in the relevant scientific community.
Rule 703 — Bases of Expert Opinion Expert may base opinion on facts/data in the case that the expert has been made aware of, or personally observed. If experts in the field would reasonably rely on those kinds of facts or data, they need not be admissible. Inadmissible facts/data disclosed to jury only if probative value substantially outweighs prejudicial effect.
Rule 705 — Disclosing Facts Underlying Expert’s Opinion Expert may state opinion without first disclosing underlying facts or data unless court orders otherwise. Expert may be required to disclose on cross-examination.
Privileges (Rule 501)
Rule 501 — Privileges Generally The common law — as interpreted by federal courts in light of reason and experience — governs in federal question cases. In civil cases governed by state law as the rule of decision, state privilege law applies.
Key privileges recognized under federal common law:
- Attorney-client privilege: confidential communications between attorney and client for purpose of legal advice.
- Work product doctrine: Rule 26(b)(3) (not technically FRE, but interrelated).
- Spousal privileges: testimonial privilege (spouse may refuse to testify against other spouse in criminal case) and confidential marital communications privilege.
- Psychotherapist-patient privilege: Jaffee v. Redmond (1996) — recognized as federal common law; applies to licensed social workers.
- Clergy-penitent privilege.
- Fifth Amendment privilege against self-incrimination.
- No federal physician-patient privilege in federal question cases (unlike many states).