Subcommittee Note

As proposed, Article II was restricted by subdivision (a) to “adjudicative" facts, as contrasted with "legislative" facts. The import of both terms was discussed in the Advisory Committee's note, but the Subcommittee nonetheless felt that the distinction was not clear and would breed litigation. The Subcommittee also felt that differing treatment for the two types of facts was unjustified. Accordingly, subdivision (a) was deleted.

As proposed, subdivision (g) would have precluded a judge from admitting evidence in disproof of facts of which judicial notice had been taken. Believing that judicial notice should be treated on the same basis as any other evidence which is admitted-subject to refutation-the Subcommittee deleted this subdivision.

ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS

Rule 301. Presumptions in General in Civil Actions

In all civil [cases] actions not otherwise provided for by Act of Congress or by these rules a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

Subcommittee Note

The word "civil" was added to effectuate the Subcommittee's decision not to deal with the question of presumptions in criminal cases. See Rule 303. Throughout, references to "civil cases" have been made “civil actions", the term used in the Federal Rules of Civil Procedure.

Rule 302. Applicability of State Law in Civil [Cases] Actions

In civil actions, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.

[Rule 303. Presumptions in Criminal Cases

[(a) Scope.-Except as otherwise provided by Act of Congress, in criminal cases, presumptions against an accused, recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.

[(b) Submission to jury.-The judge is not authorized to direct the jury to find a presumed fact against the accused. When the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge may submit the question of guilt or of the existence of the presumed fact to the jury, if, but only if, a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt. When the presumed fact has a lesser effect, its existence may be submitted to the jury if the basic facts are supported by substantial evidence, or are otherwise established, unless the evidence as a whole negatives the existence of the presumed fact.

[(c) Instructing the jury.-Whenever the existence of a presumed fact against the accused is submitted to the jury, the judge shall give an instruction that the law declares that the jury may regard the basic

facts as sufficient evidence of the presumed fact but does not require it to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury that its existence must, on all the evidence, be proved beyond a reasonable doubt.]

Subcommittee Note

Rule 303 was deleted since the subject of presumptions in criminal cases is dealt with in the proposals of the Brown Commission and S. 1 to revise the criminal code. The Subcommittee determined to consider this issue in the course of its study of these proposals, commencing later this Congress.

ARTICLE IV. RELEVANCY AND ITS LIMITS

Rule 401. Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules [adopted] prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Subcommittee Note

To accommodate the view that the Congress should do nothing which would indicate congressional acquiescence in the judgment that the Court has authority to promulgate Rules of Evidence, and the concern that the Congress must not affect adversely whatever authority the Court does have to promulgate rules, the Subcommittee amended "by other rules adopted by the Supreme Court" to read "by other rules prescribed by the Supreme Court pursuant to statutory authority" in this and other rules where the reference appears.

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes

(a) Character evidence generally.-Evidence of a person's character or a trait of his character is not admissible for the purpose of

proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of accused.-Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;

(2) Character of victim.-Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of witness.-Evidence of the character of a witness, as provided in rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts.-Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. [This subdivision does not exclude the evidence when offered] It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Subcommittee Note

In the March 1971 draft the second sentence of (b) began "It may, however, be admissible for other purposes. . . ." The Subcommittee preferred the 1971 formulation as placing greater emphasis on admissibility than did the final Court version.

Rule 405. Methods of Proving Character

(a) Reputation or opinion.-In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct.-In cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of his conduct.

Subcommittee Note

The Subcommittee approved subdivision (b) as proposed by the Court, with the specific understanding that the Rule applies only in those relatively rare situations where character is truly an issue in the case.

Rule 406. Habit; Routine Practice

(a) Admissibility.-Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

(b) Method of proof.-Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.

Subcommittee Note

This rule was approved as proposed by the Court, although the Subcommittee was aware of the comments submitted to the Advisory Committee when the 1969 and 1971 drafts were circulated. The comments

brought to the Subcommittee's attention were excerpted by the Reporter from reports of the following:

Association of the Bar of the City of New York, Second Circuit Conference Committee on Trial Practice and Technique, New York County Lawyers Association Committee on Federal Courts, Arizona State Bar Trial Practice Section, Washington State Bar Association Committee, American College of Trial Lawyers Committee, Florida State Bar Federal Rules Committee, Department of Justice, South Carolina Chapter of the American College of Trial Lawyers, the Virginia Trial Lawyers Association, the District of Columbia Judicial Conference Special Committee, and the American Bar Association Special Committees on Federal Rules of Procedure and Uniform Rules of Evidence for Federal Courts.

Rule 407. Subsequent Remedial Measures

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Rule 408. Compromise and Offers To Compromise

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Rule 409. Payment of Medical and Similar Expenses

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

Rule 410. Offer To Plead Guilty; Nolo Contendere; Withdrawn

Plea of Guilty

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer.

Rule 411. Liability Insurance

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence

of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

ARTICLE V. PRIVILEGES

Rule 501. [Privileges Recognized Only as Provided] General Rule

[Except as otherwise required by the Constitution of the United States or provided by Act of Congress, and except as provided in these rules or in other rules adopted by the Supreme Court, no person has a privilege to:

(1) Refuse to be a witness; or

(2) Refuse to disclose any matter; or

(3) Refuse to produce any object or writing; or

(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.]

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience: Provided, That in civil actions, with respect to a claim or defense as to which State law supplies the rule of decision the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

Subcommittee Note

The Subcommittee eliminated the proposed specific rules on privileges and, through a single Rule, 501, left the law of privileges in its present state to be developed by the Federal courts in accordance with the standard contained in Rule 26 of the Federal Rules of Criminal Procedure. That is, privileges shall be governed by the principles of the common law as interpreted by the courts in the light of reason and experience. The words "person, government, State, or political subdivision thereof" were added to the lone term "witnesses" used in Rule 26 to make clear, that, as under present law, not only witnesses may have privileges.

The proviso in Rule 501 as adopted by the Subcommittee, is modeled after Rule 302 and is similar to language added by the Subcommittee to Rule 601 relating to the competency of witnesses. It is designed to mandate the application of State privilege law in civil actions governed by Erie R. Co. v. Tompkins, 304 U.S. 64, a result in accord with current Federal court decisions. The Subcommittee deemed the proviso to be necessary in light of the Advisory Committee's view (see its note to Court Rule 501) that this result is not mandated under Erie.

[Rule 502. Required Reports Privileged by Statute

[A person, corporation, association, or other organization or entity, either public or private, making a return or report required by law to be made has a privilege to refuse to disclose and to prevent any other person from disclosing the return or report, if the law requiring it to be made so provides. A public officer or agency to whom a return or report is required by law to be made has a privilege to refuse to disclose the return or report if the law requiring it to be made so provides.