10.2 Federal Rules of Evidence

The PCCE does not make you a trial lawyer. It does ask a paralegal to spot the evidence rule that decides whether a document, a sentence, or an expert belongs in the trial notebook. The Federal Rules of Evidence (FRE) apply in federal courts. Many states have adopted similar numbering; when the stem is silent, use the federal/general rule this section teaches and flag that states vary.

Relevance — Rules 401 through 403

FRE 401 is a low bar. 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. FRE 402 says relevant evidence is admissible unless the Constitution, a federal statute, the FRE, or other rules prescribed by the Supreme Court provide otherwise. Irrelevant evidence is not admissible.

FRE 403 is the override. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Exam trap: “prejudice” alone is not enough. The rule requires unfair prejudice and a substantial imbalance. Graphic photos of an injury can be relevant to damages and still lose a 403 fight if they add little beyond medical records and inflame the jury.

Paralegals use 401–403 when they build the exhibit list: every row should answer “what fact of consequence does this make more or less probable, and will the court say the unfair sting substantially outweighs that value?”

Hearsay — definition, exclusions, and exceptions

FRE 801(c) defines hearsay as a statement that (1) the declarant does not make while testifying at the current trial or hearing, and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. A statement is a person’s oral or written assertion, or nonverbal conduct if the person intended it as an assertion (801(a)). FRE 802 makes hearsay inadmissible unless a federal statute, the FRE, or Supreme Court rules provide otherwise.

Two questions always come first: Was the statement made out of this court? Is it offered for its truth? An out-of-court “watch out” offered only to show the listener had notice is not hearsay, because it is not offered for the truth of the warning.

Rule 801(d) — not hearsay at all

FRE 801(d) excludes certain statements from the definition. They are not hearsay, so you do not need an 803/804 exception.

• 801(d)(1) prior statement of a testifying witness subject to cross-examination: a prior inconsistent statement given under penalty of perjury at a trial, hearing, or deposition; a prior consistent statement offered to rebut a charge of recent fabrication or improper influence, or to rehabilitate credibility when attacked on another ground; and a statement identifying a person as someone the declarant perceived earlier.
• 801(d)(2) opposing-party statement (still often called an “admission” in conversation): the statement is offered against an opposing party and (A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or (E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

Exam trap: an opposing-party statement is not an 803 exception. It is an 801(d) exclusion. Calling it “an exception” is a common wrong answer.

Rule 803 — availability does not matter

FRE 803 exceptions apply whether or not the declarant is available:

• 803(1) present sense impression: a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
• 803(2) excited utterance: a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
• 803(6) records of a regularly conducted activity (business records): a record made at or near the time by — or from information transmitted by — someone with knowledge; kept in the course of a regularly conducted activity of a business or organization; making the record was a regular practice; these conditions are shown by the custodian or another qualified witness, or by a certification; and the opponent does not show that the source or method indicates a lack of trustworthiness.
• 803(8) public records: a record of a public office that sets out the office’s activities, a matter observed while under a legal duty to report (with a criminal-case limitation on law-enforcement observations offered by the prosecutor), or, in a civil case (and against the government in a criminal case), factual findings from a legally authorized investigation — again subject to a trustworthiness attack.

Other 803 exceptions exist (including then-existing mental, emotional, or physical condition, recorded recollection, and the residual path in 807). The PCCE altitude is the definition, the 801(d) exclusions, and these workhorse 803 exceptions.

Rule 804 — declarant unavailable

FRE 804 exceptions require unavailability as defined in 804(a) (privilege, refusal, lack of memory, death or then-existing infirmity, or absence despite process or other reasonable means). Then 804(b) lets in, among others, former testimony given at a trial, hearing, or lawful deposition if the opponent had an opportunity and similar motive to develop it; a dying declaration in a homicide prosecution or a civil case; a statement against interest; a statement of personal or family history; and a statement offered against a party who wrongfully caused the declarant’s unavailability.

Authentication, originals, character, and impeachment

FRE 901(a) requires the proponent to produce evidence sufficient to support a finding that the item is what the proponent claims it is. 901(b) lists illustrations: testimony of a witness with knowledge, nonexpert opinion about handwriting, comparison by an expert or the trier of fact, distinctive characteristics, voice identification, and evidence about a process or system. FRE 902 lists self-authenticating items — including domestic public documents with a seal, certified copies of public records, official publications, newspapers, and certified domestic records of a regularly conducted activity — that need no extrinsic evidence of authenticity.

FRE 1002 (the original-writing or best-evidence rule) requires an original writing, recording, or photograph to prove its content, unless the rules or a statute provide otherwise. FRE 1003 generally lets a duplicate in. FRE 1004 excuses the original if it is lost or destroyed (not in bad faith), if it cannot be obtained by judicial process, if the opponent had control and notice, or if the writing is not closely related to a controlling issue. The rule is about proving content, not about every case that happens to involve a document.

FRE 404(a) generally bars character evidence to prove that on a particular occasion the person acted in accordance with the character or trait. 404(b) bars using other crimes, wrongs, or acts to prove character in order to show action in conformity, but permits other purposes — motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident — subject to notice in a criminal case. Civil cases still see 404(b) fights (for example, a pattern of similar fraud).

FRE 608 lets a party attack or support a witness’s character for truthfulness by reputation or opinion, and, on cross-examination, by specific instances that are probative of the witness’s (or another witness’s) truthfulness, subject to limits. FRE 609 governs impeachment with a criminal conviction. The details (felony balancing, crimes of dishonesty, the ten-year time limit, pardons, juveniles) are more than a paralegal must recite from memory, but you must know that conviction impeachment is a 609 problem, not a free-for-all “character” dump.

Privileges and experts

FRE 501 says the common law, as interpreted by federal courts in the light of reason and experience, governs a claim of privilege unless the Constitution, a federal statute, or Supreme Court rules provide otherwise. In a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. That is why a diversity negligence file can turn on the forum state’s attorney-client, physician-patient, or spousal privilege rules. Chapter 4 already taught attorney-client privilege and work product as ethics and evidence doctrines; 501 is the choice-of-law hook.

FRE 702 is expert testimony. A witness qualified by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates that it is more likely than not that: the expert’s scientific, technical, or other specialized knowledge will help the trier of fact; the testimony is based on sufficient facts or data; the testimony is the product of reliable principles and methods; and the expert’s opinion reflects a reliable application of the principles and methods to the facts. Daubert v. Merrell Dow Pharmaceuticals, Inc. makes the trial judge the gatekeeper of reliability. Classic Daubert factors include whether the theory can be (and has been) tested, whether it has been subjected to peer review and publication, the known or potential error rate, the existence of standards, and general acceptance. Kumho Tire Co. v. Carmichael extends the gatekeeping duty beyond “science” to technical and other specialized experts. FRE 703 lets an expert base an opinion on facts the expert has been made aware of or personally observed, including inadmissible facts if experts in the field would reasonably rely on them. FRE 704 generally allows an opinion on an ultimate issue, with a criminal-case limitation on mental state.

Rule 26(a)(2) is how those experts arrive in the file: identity, and for retained or specially employed experts a written report. The paralegal calendars the disclosure date, assembles the expert’s file, and drafts the exhibit list and witness kit around 702 and 703.

Building exhibit lists and witness kits

A usable trial kit is an evidence document:

1. Exhibit list — number, description, sponsoring witness, the fact of consequence (401), any hearsay path (801(d), 803, 804), authentication plan (901/902), and original/duplicate status (1002–1004).
2. Witness kit — subpoena or notice, outline of expected testimony, prior statements for impeachment (608/609 and 801(d)(1)), and the exhibits that witness will sponsor.
3. Objection cheat sheet — 401, 403, 404, 608/609, 702, 801–804, 901, 1002 — so the attorney can stand up with a rule number.
4. Privilege flag — 501 and the Chapter 4 doctrines, so a deposition clip does not waive what the privilege log protected.

Worked path. The file has (a) the defendant’s email saying “we shipped knowing the lot was bad,” (b) a customer’s typed complaint describing the failure, (c) the manufacturer’s regularly kept testing log, and (d) a retained metallurgist’s opinion. Label before you tab. The email is an 801(d)(2) opposing-party statement and still needs 901 authentication (a custodian, the defendant, or distinctive characteristics). The customer complaint is hearsay if offered to prove the product failed; look for a non-hearsay use (notice) or an exception. The testing log is a candidate for 803(6) plus a custodian or 902(11) certification. The metallurgist is a 702 / Daubert witness whose report must be disclosed under Rule 26(a)(2). Put all four on the exhibit list with those rule paths, and do not assume “we produced it, so it comes in.”