Federal Rules of Evidence (Part 8 of 11)
Federal Rules of Evidence (Article VIII)
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Rule 801. Definitions
The following definitions apply under this article:
- A "statement" is
- an oral or written assertion or
- nonverbal conduct of a person, if it is intended by the person as an
- A "declarant" is a person who makes a statement.
- "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
(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;
- (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).
Rule 802. Hearsay Rule
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
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
- 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.
- 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
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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
- Statements in ancient documents. Statements
in a document in existence twenty years or more the authenticity of which is
- 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
- 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.
- 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.
- 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
- Reputation as to character. Reputation of a person's
character among associates or in the community.
- 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.
- 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.
- [Transferred to Rule 807]
Rule 804. Hearsay Exceptions; Declarant Unavailable
Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
- Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant--
- is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or
- persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or
- testifies to a lack of memory of the subject matter of the declarant's statement; or
- is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
- 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.
- 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.
- 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.
- 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.
- 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.
- [Transferred to Rule 807]
- 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.
Rule 805. Hearsay Within Hearsay
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.
Rule 806. Attacking and Supporting Credibility of Declarant
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.
Rule 807. Residual Exception
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.
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