Rules of Evidence

Article I. General Provisions

Rule 1.1 Purpose
These rules should be considered so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

Rule 1.2 Rulings on Evidence
To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

Rule 1.3 Preliminary Questions

1. Relevance that depends on a fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
2. Evidence relevant to weight and credibility. This rule does not limit a party's right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.

Article II. Relevance And It's Limits

Rule 2.1 Test for Relevant Evidence
Evidence is relevant if:

1. it has any tendency to make a fact more or less probable than it would be without the evidence; and
2. the fact is of consequence in determining the action.

Rule 2.2 General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise:

1. the United States Constitution (and through applicable caselaw);
2. these rules; or
3. other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.

Rule 2.3 Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
The court may exclude relevant evidence if its ability to make a relevant disputed point more or less true is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
"Unfair prejudice" within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.

Rule 2.4 Character Evidence

1. Prohibited Uses. 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 the character or trait.
2. Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
   1. 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;
   2. subject to the limitations in Rule 2.12, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may:
      1. offer evidence to rebut it; and
      2. offer evidence of the defendant's same trait;
   3. 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.
3. Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules in Article IV.

Rule 2.5 Methods of Proving Character

1. By Reputation or Opinion. When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct.
2. By Specific Instances of Conduct. When a person's character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.

Rule 2.6. Habit; Routine Practice
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

Rule 2.7. Subsequent Remedial Measures
When measures are taken, post-factum, that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

1. negligence;
2. culpable conduct;
3. a defect in a product or its design; or
4. a need for a warning or instruction.

But the court may admit this evidence for another purpose.

Rule 2.8. Compromise Offers and Negotiations

1. Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach a witness/declarant by a prior inconsistent statement or a contradiction:
   1. furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and
   2. conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations were related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
2. Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Rule 2.9. Offers to Pay Medical and Similar Expenses

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

Rule 2.10. Pleas, Plea Discussions, and Related Statements

1. Prohibited Uses. 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; 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.
2. Exceptions. The court may admit a statement described in Rule 2.10.(1)(3) or (4):
   1. in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or
   2. in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Rule 2.11. Liability Insurance

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

Article III. Privileges

Rule 3.1. Privilege in General

The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless the United States Constitution provides otherwise.

Rule 3.2. Attorney-Client Privilege and Work Product

1. Definitions:
   1. “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and
   2. “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.
2. Any material produced under attorney-client privilege or work-product protection may not be disclosed to a third party, nor admitted to court, without the explicit written consent of the client and the attorney.

Article IV. Witnesses

Rule 4.1. Competency to Testify in General

Every person is competent to be a witness unless these rules provide otherwise.

Rule 4.2. Need for Personal Knowledge

A witness may testify to a matter only if the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 4.3.

Rule 4.3. Oath or Affirmation to Testify Truthfully

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

Rule 4.4. Judge

The presiding judge may not testify as a witness at the trial.

Rule 4.5. Juror

1. At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.
2. During an Inquiry into the Validity of a Verdict or Indictment.
   1. Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
   2. Exceptions. A juror may testify about whether:
      1. extraneous prejudicial information was improperly brought to the jury’s attention;
      2. an outside influence was improperly brought to bear on any juror; or
      3. a mistake was made in entering the verdict on the verdict form.

Rule 4.6. Who May Impeach a Witness

Any party, including the party that called the witness, may attack the witness’s credibility.

Rule 4.7. A Witness

• Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.
• Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.

Rule 4.8. Religious Beliefs or Opinions

Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

Rule 4.9. Mode and Order of Examining Witnesses and Presenting Evidence

• Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
  1. make those procedures effective for determining the truth;
  2. avoid wasting time; and
  3. protect witnesses from harassment or undue embarrassment.
• Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
• Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
  1. on cross-examination; and
  2. when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

Rule 4.10. Witness

1. Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.
2. Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.

Rule 4.11. Court

• Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.
• Examining. The court may examine a witness regardless of who calls the witness.
• Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.

Rule 4.12. Excluding Witnesses

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

1. a party who is a natural person;
2. an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;
3. a person whose presence a party shows to be essential to presenting the party’s claim or defense.

Article V. Opinions And Expert Testimony

Rule 5.1. Opinion Testimony by Lay (Eye) Witnesses

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

1. rationally based on the witness’s perception (first-hand knowledge or observation);
2. helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
3. not based on scientific, technical, or other specialized knowledge within the scope of Rule 5.2.

Rule 5.2. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

1. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
2. the testimony is based on sufficient facts or data;
3. the testimony is the product of reliable principles and methods; and
4. the expert has reliably applied the principles and methods to the facts of the case.

Rule 5.3. Opinion on an Ultimate Issue

1. In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.
2. Exception. 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.

Rule 5.4. Court-Appointed Expert Witness

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

Article VI. Hearsay

Rule 6.1. Definitions That Apply to This Article

The following definitions apply under this article:

1. Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
2. Declarant. “Declarant” means the person who made the statement.
3. Hearsay. “Hearsay” means 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.

Rule 6.2. The Rule Against Hearsay

Hearsay is not admissible, unless these rules provide otherwise.

Rule 6.3. Exceptions to the Rule Against Hearsay

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

1. Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
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.
3. Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
4. Statement Made for Medical Diagnosis or Treatment.
5. Recorded Recollection. A record that:
   1. is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
   2. was made or adopted by the witness when the matter was fresh in the witness’s memory; and
   3. accurately reflects the witness’s knowledge.
6. Records of a Regularly Conducted Activity.
7. Absence of a Record of a Regularly Conducted Activity.
8. Public Records.
9. Public Records of Vital Statistics.
10. Absence of a Public Record.
11. Reputation Concerning Character. A reputation among a person’s associates or in the community concerning the person’s character.

Rule 6.4. Hearsay Exception; Declarant Unavailable

• Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:
  1. is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
  2. refuses to testify about the subject matter despite a court order to do so;
  3. testifies to not remembering the subject matter;
  4. cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness.
• The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
  1. Former Testimony.
  2. Statement Under the Belief of Imminent Death.
  3. Statement Against Own Interest.
  4. Statement of Personal or Family History.
  5. Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability.

Rule 6.5. Attacking and Supporting the Declarant

When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

Article VII. Contents of Writings

Rule 7.1. Definitions That Apply to This Article

In this article:

1. An “original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout — or other output readable by sight — if it accurately reflects the information. An “original” of a photograph includes the negative or a print from it.
2. A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

Rule 7.2. Requirement of the Original

An original writing, recording, or photograph is required in order to prove its content unless these rules provide otherwise.

Rule 7.3. Admissibility of Duplicates

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

Rule 7.4. Admissibility of Other Evidence of Content

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

1. all the originals are lost or destroyed, and not by the proponent acting in bad faith;
2. an original cannot be obtained by any available judicial process;
3. the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing.