Federal Rules of Evidence: A Lawyer’s Guide
The Federal Rules of Evidence can seem intimidating at first glance. There are a lot of ins-and-outs that lawyers need to understand in order to effectively present evidence in federal court. But when you break it down, the rules start to make more sense. This article provides an overview of some of the most important aspects of the Federal Rules that every lawyer should know.
Hearsay – The Big One
Hearsay is probably the most well-known rule of evidence. Simply put, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. For example, if a witness testifies “John told me it was raining outside,” that’s hearsay if it’s being used to prove that it was actually raining.
There are a ton of exceptions and exemptions to the hearsay rule that lawyers need to be familiar with. Some common ones include:
- Statements by Party Opponents – An opposing party’s own statements can be used against them. So if John is the defendant, his out-of-court statements can come in.
- Present Sense Impressions – Statements describing an event made while perceiving the event or immediately after are exempt. Like “It’s raining hard right now!”
- Excited Utterances – Statements made while under the excitement of a startling event. “I just got robbed!”
- Business Records – Records made in the regular course of business are exempt.
- Dying Declarations – Statements made while believing death is imminent regarding the cause of death.
It’s crucial for lawyers to identify hearsay and determine if an exception applies before trying to introduce evidence. Nothing kills your credibility faster than having your evidence excluded because you didn’t understand the hearsay rule!
Character Evidence and Prior Bad Acts
Evidence regarding someone’s character or prior bad acts is generally not admissible under the Federal Rules. For example, evidence that John shoplifted 10 years ago typically can’t come in to prove that he stole from his employer. However, there are exceptions:
- Certain criminal cases allow evidence of the defendant’s character.
- In civil cases, character evidence regarding truthfulness may be admissible.
- Prior bad acts may be admissible to prove motive, intent, knowledge, identity, or absence of mistake. But the judge has to weigh the probative value against the risk of unfair prejudice.
Pay close attention to character evidence issues. Convincing a judge to admit prior bad acts is an uphill battle, so make sure you have a rock-solid argument prepared.
Opinion Testimony and Expert Witnesses
Want to have your expert witness explain their opinion to the jury? You’ll need to satisfy a few requirements under the Federal Rules.
First, lay witness opinions have to be rationally based on their perceptions and helpful to the jury. Expert opinions need to satisfy the Daubert standard, meaning:
- The methodology is reliable and scientifically valid
- The expert is qualified through knowledge, skill, experience, training, or education
- The testimony will help the jury determine a fact at issue
Make sure your experts can explain their methods and how they applied reliable principles to the facts of your case. Unsupported opinions get excluded quickly.
Experts also need to provide a written report containing their opinions, reasons, methodology, and other details. This allows the other side to prepare for cross-examination. Failure to properly disclose expert opinions can lead to exclusion so be diligent!
Authentication of Evidence
Before evidence can be admitted, it typically needs to be authenticated under Rule 901. This just means the proponent must provide evidence sufficient to show the item is what they claim it to be.
For example, authenticating a contract would require testimony that the witness signed the contract on a certain date. Or authenticating a photograph might require testimony that it accurately depicts the scene at a given time and place.
Some items are “self-authenticating” under Rule 902 and don’t require this additional proof. Things like public records sealed by a government agency, certified domestic records, and acknowledged documents.
It’s a quick authentication, but an important step that lawyers need to be ready to address. Make sure you have a witness lined up who can provide the proper foundation for any key evidence you want to admit.
Best Evidence Rule
Under the best evidence rule, you typically need to produce the original writing, recording, or photograph to prove its content. You can’t just have someone describe what they remember being in the document. There are exceptions when originals are lost, destroyed, or otherwise unavailable through no fault of the proponent. In that case, secondary evidence like photocopies may be admissible.
Lawyers often try to shortcut around the best evidence rule by having witnesses describe documents or playing partial recordings. But if you don’t have a good faith reason why the original can’t be produced, expect an objection.
Offers of Proof
When the judge excludes evidence, make sure to make an “offer of proof” to preserve the issue for appeal. This simply means explaining what the excluded evidence would have shown and why you think it’s admissible.
Offers of proof are usually done outside the presence of the jury. But it’s crucial for creating a record and avoiding waiver of the issue down the road.
No one expects lawyers to have the Federal Rules of Evidence entirely memorized. But taking the time to understand the basics will help avoid embarrassing missteps in federal court. Mastering topics like hearsay, authentication and expert testimony will give you the confidence to present compelling evidence and make persuasive arguments. The Federal Rules may seem tedious at first, but they’re just another set of tools for effective advocates to wield.