Rule 101. Scope; Definitions — Inbound Citations
Fed. R. Evid. 101
Cited by 78 provisions in release 119-102.
Citations to Fed. R. Evid. 101 as a whole
Citations to Rule 101(b)(1)
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(b) These rules apply in:• civil cases and proceedings, including bankruptcy, admiralty, and maritime cases;• criminal cases and proceedings; and• contempt proceedings, except those in which the court may act summarily.
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(f) In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.
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In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.
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In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision.
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(2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.
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(a) In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414.
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The common law—as interpreted by United States courts in the light of reason and experience—governs a claim of privilege unless any of the following provides otherwise:
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Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.
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(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
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(1) in a criminal case or in a civil case involving just compensation under the Fifth Amendment, from any funds that are provided by law; and
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(2) in any other civil case, by the parties in the proportion and at the time that the court directs—and the compensation is then charged like other costs.
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(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
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(B) is now offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
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(2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
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(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).
Citations to Rule 101(b)(2)
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(2) a defendant in a criminal case is a witness and so requests; or
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(d) By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.
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(b) These rules apply in:• civil cases and proceedings, including bankruptcy, admiralty, and maritime cases;• criminal cases and proceedings; and• contempt proceedings, except those in which the court may act summarily.
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(3) miscellaneous proceedings such as:• extradition or rendition;• issuing an arrest warrant, criminal summons, or search warrant;• a preliminary examination in a criminal case;• sentencing;• granting or revoking probation or supervised release; and• considering whether to release on bail or otherwise.
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(f) In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.
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(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:(i) offer evidence to rebut it; and(ii) offer evidence of the defendant’s same trait; and(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
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(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and(C) do so in writing before trial—or in any form during trial if the court, for good cause, excuses lack of pretrial notice.
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(2) conduct or a statement made during compromise negotiations about the claim—except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
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(a) In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:(1) a guilty plea that was later withdrawn;(2) a nolo contendere plea;(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
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(1) Criminal Cases. The court may admit the following evidence in a criminal case:(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and(C) evidence whose exclusion would violate the defendant’s constitutional rights.
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(a) In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.
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(a) In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.
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(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
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(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
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(1) it is offered in a criminal case;
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(b) Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.
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(c) If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or—if justice so requires—declare a mistrial.
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(b) In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.
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(1) in a criminal case or in a civil case involving just compensation under the Fifth Amendment, from any funds that are provided by law; and
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(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
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(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
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(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice—unless the court sets a different time for the notice or the objection.
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(D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.
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(B) if offered in a criminal case as one that tends to expose the declarant to criminal liability, is supported by corroborating circumstances that clearly indicate its trustworthiness after considering the totality of circumstances under which it was made and any evidence that supports or undermines it.
Citations to Rule 101(b)(3)
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The proponent may use a copy to prove the content of an official record—or of a document that was recorded or filed in a public office as authorized by law—if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.
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(2) conduct or a statement made during compromise negotiations about the claim—except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
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(8) Public Records. A record or statement of a public office if:(A) it sets out:(i) the office’s activities;(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
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(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.
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(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
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(B) the record is kept in a public office; and
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(A) a document was recorded or filed in a public office as authorized by law; or
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(4) Certified Copies of Public Records. A copy of an official record—or a copy of a document that was recorded or filed in a public office as authorized by law—if the copy is certified as correct by:(A) the custodian or another person authorized to make the certification; or(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.
Citations to Rule 101(b)(4)
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The proponent may use a copy to prove the content of an official record—or of a document that was recorded or filed in a public office as authorized by law—if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.
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(1) if the ruling admits evidence, a party, on the record:(A) timely objects or moves to strike; and(B) states the specific ground, unless it was apparent from the context; or
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(b) Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
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(c) When practicable, an illustrative aid used at trial must be entered into the record.
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(2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.
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(b) Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.
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(5) Recorded Recollection. A record that:(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and(C) accurately reflects the witness’s knowledge.If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
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(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;(C) making the record was a regular practice of that activity;(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
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(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;
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(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
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(C) making the record was a regular practice of that activity;
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(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if:(A) the evidence is admitted to prove that the matter did not occur or exist;(B) a record was regularly kept for a matter of that kind; and(C) the opponent does not show that the possible source of the information or other circumstances indicate a lack of trustworthiness.
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(B) a record was regularly kept for a matter of that kind; and
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(8) Public Records. A record or statement of a public office if:(A) it sets out:(i) the office’s activities;(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
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(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.
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(10) Absence of a Public Record. Testimony—or a certification under Rule 902—that a diligent search failed to disclose a public record or statement if:(A) the testimony or certification is admitted to prove that(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and(B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice—unless the court sets a different time for the notice or the objection.
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(ii) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and
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(14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;(B) the record is kept in a public office; and(C) a statute authorizes recording documents of that kind in that office.
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(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;
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(B) the record is kept in a public office; and
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(7) Evidence About Public Records. Evidence that:(A) a document was recorded or filed in a public office as authorized by law; or
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(4) Certified Copies of Public Records. A copy of an official record—or a copy of a document that was recorded or filed in a public office as authorized by law—if the copy is certified as correct by:(A) the custodian or another person authorized to make the certification; or(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.
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(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)–(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them.
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(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).
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(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).