Federal Rules of Evidence/Introduction

The Federal Rules of Evidence are a staple of American legal education. Almost all law students learn the rules in their first or second year of law school. An understanding of the rules is critical when arguing a case in the courtroom, and important for any lawyer seeking to protect their client when a suit is filed.

Article I of the Federal Rules sets forth some basic laws which govern the application of the other rules of evidence.

Rule 101. Scope

 * These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101.

The purpose of this rule is to define when the Federal Rules of Evidence are authoritative. Most generally, the rules apply in federal courts at any level. However, the rules are also germane to proceedings in state courts because as of January 1, 2004, 41 states and Puerto Rico had adopted the Federal Rules of Evidence. Each state likely made several moderate and some substantial changes to the rules before they were officially codified by the state legislature.

There is no direct mention of rule 104, and there probably should be because while the rules generally govern proceedings in the district courts, they do not govern preliminary questions on the admissibility of evidence, except for rule 501. Rule 1101 specifically states when the rules are applicable or inapplicable. Military courts use the evidence rules of the Uniform Code of Military Justice.

Rule 102. Purpose and Construction

 * These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

Rule 102 is rarely cited by lawyers, but it quietly grants judges a huge deal of authority over trials, inviting them to "eliminate unjustifiable expense and delay" and "grow" and "develop" the law of evidence through their administration of the rules.

Rule 103. Rulings on Evidence

 * (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and


 * (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
 * (2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.


 * Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

If you've ever watched a courtroom drama on TV or in the cinema, you've probably seen lawyers make "objections" in the courtroom. Lawyers raise and argue issues of evidence through these objections. Objecting is important because if a lawyer fails to object to evidence, they cannot appeal their case on the grounds that the evidence was improperly admitted. Rule 103(a) forces lawyers to object to any evidence they think might unfairly decide their case, so as to "preserve error."

Objections come in many forms. Many objections are raised "in limine," before the trial even starts. This keeps attorneys from having to argue about sensitive evidence in front of the jury. Some objections are made when one side's attorney asks a witness a question that makes the other side uncomfortable. Objections can even be made after the evidence is heard by the jury: such an objection is called a "motion to strike," and while it won't keep the evidence away from the jury, it will preserve error.


 * (b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.


 * (c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

After an objection is made, an attorney or the judge will often request to speak "at sidebar," meaning out of the jury's earshot.


 * (d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

While an objection is usually necessary to preserve error, appeals courts occasionally take notice of truly egregious errors by trial judges, even when there is no objection. However, such cases are rare: it's always important to object to any evidence that might become an issue of contention on appeal.

Rule 104. Preliminary Questions

 * (a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

When a judge decides whether or not to admit evidence, they usually do so under Rule 104(a), with only two exceptions (noted below). A 104(a) determination is fairly straightforward: the attorneys present arguments for and against admissibility, often supported by extrinsic evidence, and the judge determines whether the contested evidence should be admitted. The arguments and evidence heard by the judge need not be admissible in front of the jury, with the caveat that privileged information (such as attorney-client communications) cannot be considered. (Privileges are discussed in further detail in this chapter.)


 * (b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

Rule 104(b) is used in determining two types of evidentiary questions: authentication of evidence (Rule 901) and prior bad acts (Rule 404(b)). When these issues are being considered, the attorney must "tie up" the admissibility by presenting extrinsic evidence that proves admissibility. This can be done either before or after the evidence is presented, at the judge's discretion.


 * (c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.

Although judges have leeway to conduct evidentiary arguments in the presence of the jury, they will usually hear arguments at sidebar if either side requests it.


 * (d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.


 * (e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

Rule 105. Limited Admissibility

 * When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Almost every trial contains at least one "limiting instruction," where the jury hears a damaging piece of evidence and the judge tells them they may only consider it for one purpose. Many lawyers argue against limiting instructions, claiming that "the bell cannot be unrung"&mdash;once the evidence has been heard, the jury will want to consider it for any end that seems relevant. However, appeals courts usually assume that the jury will follow the limiting instruction, except in rare cases where the evidence is powerfully incriminating in a patently unfair way.

As with objections, a lawyer must request a limiting instruction in order to preserve error on appeal. If they do not request the instruction, they cannot fault the trial judge for not imposing the instruction.

Rule 106. Remainder of or Related Writings or Recorded Statements
There are two basic types of evidence: testimony, evidence provided by the statements of witnesses in court, and exhibits, evidence provided in physical form.

Exhibits have to have a foundation that makes their admissibility valid. One key part of this foundation is authentication, or proving that the exhibit is what the proponent claims it is. For example, to show a "murder weapon" to the jury, the prosecutor must first establish that the weapon is the one used to commit the murder. Authentication rules are covered in depth in Article IX.

Writings and recorded statements follow additional rules on top of authentication, and Rule 106 is one such rule, requiring that writings and recorded statements be presented in context if the other side demands it.


 * When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.