Federal Judicial Center Orientation Series for District Judges An overview of the federal rules of evidence with the Honorable James H. Hancock Judge Hancock was appointed as the United States District Judge for the Northern District of Alabama in 1973. He is a member of the Judicial Council of the 11th Circuit. Congratulations on your appointment to the Federal Bench and welcome to the Federal Judiciary. You are about to watch a lecture on the Federal Rules of Evidence that I gave to a group of newly appointed District Judges several years ago. In the intervening years, time has brought some changes, both to me and to the Federal Rules of Evidence. The Supreme Court has handed down decisions interpreting some of the most important rules of evidence and other rules have been amended. In addition, there have been a number of practical developments, including a significant increase in the number of criminal cases handled in our district courts, suggesting the need for additional discussion of certain rules. So as you watch the program, I'll be appearing from time to time in my current state to update and elaborate upon my previous remarks. This is a presentation of an overview of the Federal Rules of Evidence. Quite naturally, during the short time allotted to me, even if I were able to, I could not teach you the Federal Rules of Evidence. But I can assure you at the conclusion of this presentation here this morning that if the Federal Rules of Evidence have ever in the past, either while you were an attorney or in your brief tenure on the bench, ever intimidated you by their very weight and existence, they will no longer intimidate you after today. There are a variety of articles. There are 11 articles in number in the Federal Rules of Evidence. These 11 articles contain 63 specific rules. But you will shortly see, if you have not already seen, that the vast majority of these 63 rules are either common knowledge to you or so limited in scope that you can for all practical purposes after this morning forget them. And as a practical matter, there are about 15 rules of evidence that will really require some comprehension and require your attention. And if you can ever master those 12, 14, 15 rules, you will have mastered the Federal Rules of Evidence because the remaining 50 rules are of limited affect on your day-to-day operation. Let's now go then to the first rule, which is Rule 101. And that rule simply says that these rules, the 63 Federal Rules of Evidence, govern all proceedings in the United States courts to the extent and with the exceptions found in Rule 1101. Take my word for it at this point in time, and we shall get to Rule 1101 later. But take my word for it that Rule 1101a and b with limited exceptions makes these rules of evidence applicable to all proceedings in your courtroom. And you notice I said with limited exceptions, there are a few, a very few exceptions where these rules of evidence are not applicable to you in proceedings in your courtroom. I will give you three illustrations now to demonstrate that. First, they are not applicable to probation revocation proceedings. Secondly, they are not applicable to the question of privilege of witnesses to testify. And third, they are not applicable in your determination of Rule 104 preliminary determinations of the applicability of evidence. We will discuss that more in just a moment. But by and large with a very few limited exceptions, the Federal Rules of Evidence govern all proceedings in your courtroom. So much for Rule 101. Rule 102 says the obvious, construe the rules to secure fairness to the end that the truth may be ascertained and proceedings justly determined. We are now through with two rules and you need never see those two rules again. Rule 103 is a codification of the basic rule of offering and receiving evidence and the handling of objections to the admission of evidence. It puts the obligation on the objecting attorney to state specifically the ground of his objection unless it is obvious from the nature of the content of what is taking place in the courtroom. And if it is not obvious and if he does not state specifically his objection, then he cannot predicate your ruling as a basis for error. If the ruling on the objection is one excluding evidence, then the rule also places on the proponent to make known to you, unless it is obvious from the context of what is taking place in the courtroom, to make known to you the substance, the gist of the evidence being excluded. Otherwise he cannot predicate your excluding the evidence as a basis for an appeal. If you are requested, the judge must give the proponent of the evidence the opportunity to make a showing if the ruling is one excluding evidence. I suggest to you that oftentimes attorneys will abuse this prerogative to the extent of puffing, puffing too much the nature of the evidence that you are about to exclude. For example, an attorney is trying to get something in before you and a valid objection in your opinion has been made and you are going to exclude it. He will say, you ought to make a showing of what you are excluding and you do have the obligation to give him the chance to make such a showing. He will then normally outline for you perhaps two and a half times more than he actually could produce for you were you to let him go forward and actually present it. If you perceive that is happening, the rule expressly authorizes you to require him to make his showing by question and answer form. And I suggest to you from time to time this is a very therapeutic thing to do particularly with certain attorneys who practice before you to say, wait a minute, don't tell me what evidence I'm excluding. Let's send the jury out and you put the evidence on before me in question and answer fashion. And I suggest to you that oftentimes it will be materially different than it came across to you when the attorney himself was trying to advise you what you were excluding. In any event, Rule 103 is very simple in operation and it's saying that which you have already known that we're an objecting attorney objects, he should state his grounds of objection where the ruling is one excluding evidence or the judge should give him an opportunity to make a showing to the court as to what evidence is being excluded and that showing can be in the form of a question and answer. So much for Rule 103. Rule 104 states what you have known for a very, very long time and that is that the judge normally decides preliminary questions concerning the admissibility of evidence, the existence of a privilege and the qualification of a person to be a witness. Notice that the last sentence of Rule 104A like Rule 101D which I made reference to a short moment ago says that the judge is not bound by the federal rules of evidence in resolving these preliminary questions. Thus where you are making a determination as to the admissibility of evidence and you need to have some side hearing associated with the admissibility of that evidence, you are not bound by the federal rules of evidence as you receive this side showing of evidence in connection with the underlying evidence being offered. The one exception to the general rule which Rule 104 states and really is the general rule. The one exception to that general rule that the judge decides preliminary questions of admissibility is found in Rule 104B where the relevancy of the evidence is conditioned upon the existence of a fact. It is for the jury. It is for the trial of fact to decide if that underlying fact exists. So the procedure that is followed is simply this. The judge receives the evidence subject to their being evidence from which the jury, the trial of fact can conclude that the underlying fact exists. That's a lot of words to explain the following situation because I think I can give it to you clearly by this example. A written statement by a party may be relevant as an admission, but it is relevant as an admission only if the statement were actually made by the party. That is an underlying fact that the jury must conclude. So a statement is received by you conditioned upon their being evidence that the party actually made the statement. And if there is no evidence, no evidence at all that the party actually made the statement, then you must withdraw that statement from the jury's consideration. But if there is any evidence at all from which the jury could conclude that the party actually did make that statement, then the statement remains in and its relevance is determined by the jury, not the judge, based upon their determination of the fact of whether the party actually made the statement. But that is the only limited area where the basic premise of Rule 104 which says that you the judge decide questions of admissibility. And that is by and large the rule that you will be applying in nearly every instance. Rule 105 merely says the obvious on limited admissibility. If evidence is admissible only for a limited purpose, receive it for that limited purpose and tell the jury. That's all that Rule 105 is saying and you would operate that way in your court even if you didn't have Rule 105. So you need no longer concern yourself with Rule 105. Rule 106 by the same token merely provides that at the time that a party introduces a part of a writing, the other party may require him to introduce all other parts of that writing which in fairness ought to be considered at the same time. You have known this all of your life as an attorney. You have seen judges apply this routinely all of the times. You would never think of conducting your courtroom differently even if Rule 106 did not exist. It is common knowledge and common sense and you can just forget for all practical purposes Rule 106. We have now covered one of the 11 articles of the Federal Rules of Evidence and we have covered six of the 63 rules or in other words 10% of all of the Federal Rules of Evidence we have covered in what have you learned. You've learned they apply to you in nearly all of your proceedings. You've learned that you ought to construe them fairly. You've learned that the lawyer ought to state his grounds for objections and ought to make a showing where you are ruling in a fashion to exclude evidence. You have learned that you the judge decide preliminary questions of admissibility except in that rare instance where the relevancy is conditioned upon the existence of a fact. You have learned that in limited admissibility situations you ought to limit the admissibility and you have learned that when part of a writing is introduced the rest can come in if it ought to be received at that time for the sake of fairness. In substance you have really learned nothing. You have just seen that Article 1 almost in its entirety is common sense. So much for those first six rules. Article 2 is a single rule article. Only Rule 201 is in Article 2 which deals with judicial notice. This rule, Article 2, Rule 201, governs only judicial notice of adjudicative facts. Adjudicative facts notice that Rule 201 does not deal with judicial notice of law and does not deal with judicial notice of matters personally known to the judge. Rule 201 only deals with judicial notice of adjudicative facts as opposed to legislative facts. The court does not take judicial notice of law. The court instructs on the law but does not take judicial notice of the law. The court does not take judicial notice of matters personally known to it unless that matter happens also to be an adjudicative fact. The distinction between an adjudicative fact on the one hand and a legislative fact on the other hand is extremely elusive at times and the best way to perhaps demonstrate the difference and to demonstrate what you can take judicial notice of is to give you a few examples. The dates, the day of the week, the time of sunset, the time of sunrise, the time of high tide, the time of low tide, prime rate of interest on a given occasion are all adjudicative facts. They're not subject to debate. They're not subject to question. They can be readily ascertained by going to some source and finding it out. There would be no debate whatsoever on what day of the week, December 28th of 1957, occurred. That is an adjudicative fact. Legislative facts on the other hand matters that you cannot take judicial notice of or matters where there is some debate. There is some difference of opinion or at least some room for a difference of opinion as to whether the matter is or is not correct. For example, you cannot take judicial notice of the fact, if it be a fact, that our two-party system offers the best candidates. I am certain that there would be great debate among all of you here as to whether our two-party system does or does not offer the best candidates. By the same token, you cannot take judicial notice that marriage protects, that the marriage relationship is protected by the spouse's testimonial privilege because there is great debate over whether the marriage relationship is or is not protected by the testimonial privilege of a spouse. These are legislative facts and these are matters that you cannot take judicial notice of. Look at 201B because it now summarizes in the light of what I have said what you can take judicial notice of. A judicially noticed fact must be one not subject to reasonable dispute. That means not a legislative fact. Not subject to reasonable dispute either in that it is either generally known within the jurisdiction of the court or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. As you can see in Rule 201C, you on your own initiative may take judicial notice of proper or judicative facts whether you are requested to or not. You must at the request of a party take judicial notice of a proper fact if the source is given to you from which you can conclude that it is appropriate to take judicial notice of that fact. In a civil trial where you have taken judicial notice of a fact, you are required by Rule 201 to instruct the jury that it must accept the fact that you have taken judicial notice of cannot question it and you, of course, therefore should not even receive evidence contrary to that. And the reason for that is obvious if you are correct in taking judicial notice then there is no evidence that could really be contrary to what you have noticed. In a criminal case however, it's different. You do not instruct the jury that they are bound to accept as established the noticed fact. Indeed, in a criminal case as Rule 201G suggests, you tell the jury that they may but are not required to accept as conclusive the fact which you have judicially noticed. So much for Article 2. It's a one-rule article and it says that you take judicial notice of things that are not subject to dispute not because you personally know them but because they are generally known in the community or are capable of ready ascertainment from sources that are reliable. You can do it on your own. You have to do it at the request of a party if the party gives you the basis on which to do it. In a civil jury case you tell the jury they are bound by it in a criminal jury case you tell the jury they may accept it but they are not bound by the fact that you have judicially noticed. That is the sum and substance of Article 2. That is the sum and substance of the federal rules of evidence dealing with judicial notice. Let's now look at the Article 3 rules. They are two in number and two only. Rule 301 and Rule 302 address the subject of the weight to be given common law presumptions and to be given to statutory presumptions where the statute itself is silent as to the effect of the weight to be given the presumption. Rule 302 merely says follow state law on the effect of presumptions if you are Erie v. Tompkins bound. If you are applying the law of the state under the principle of Erie in the case that you have then Rule 302 says apply the law of the state also in determining the weight of presumptions. This is because the Congress could not agree on how to handle presumptions as they could not agree on how to handle privilege and how to handle competency of witness and this was an accommodation this was an accommodation that facilitated the enactment of the federal rules of evidence thus where you are dealing with a diversity of citizenship case for example applying state law the federal rules of evidence are of no assistance to you in the area of presumptions and you must go to the state court decisions to decide how you weigh and how you treat presumptions that's all 302 is saying 301 Rule 301 governs all other presumption questions that are not expressly resolved by the statute which creates them 301 provides that a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption but does not I emphasize does not shift to such party the burden of proof the best way to explain how 301 works is to give you an example there is a presumption that a mailed letter is received if we have that presumption that a mailed letter is received then a party under rule 301 need only all for proof of mailing to get the benefit of the presumption that the letter was received if on the other hand evidence then comes in saying yes but I didn't get the letter rule 301 presumption disappears but remains as a permitted inference from which the trial fact may still nevertheless find receipt even in the face of testimony to the contrary the burden is not on the party who says I didn't get it to prove he didn't get it the trial of fact looks at the evidence of non-receipt the evidence of mailing looks at the permitted inference that is inferred from the mailing and then resolves that conflict of permitted inference versus I didn't get it either by saying yes he didn't get it or even though you say you didn't get it I think you did from the permitted inference the 301 in effect rejected the bursting bubble approach to presumptions that was a principle that had evolved over the years on the handling of presumptions that said that for example the mailing of a letter is a presumption of receipt but if there is any evidence saying you didn't get it the presumption burst like a bubble and the burden the burden was on the proponent to prove that it was received 301 rejected that burden the proponent to prove after the bubble burst and said even with the presumption once there is evidence to the contrary there is still a permitted inference that remains so that with nothing more the trial of fact still could find receipt from that permitted inference even in the face of evidence saying that the letter was not received article 3 rules 301 and 302 deal with the subject matter of presumptions and they really say this they say two things first if you are eerie bound if you are dealing with a common law case diversity case where you have to apply the common law of your state you got to turn to the law of your state to see how to handle presumptions it also says that in all other cases they are governed by rule 301 of the federal rules of evidence which says that a presumption does not shift the burden of proof to the other party but the burden of going forward is placed on the other party and if the other party does go forward with some evidence that does not burst the bubble of presumption but rather it shatters it to the point that there is still a permitted inference that lays there for the trial of fact to resolve the question of the weight of the presumption so much for those two rules they are really not troublesome they are really not troublesome at all and you don't have many situations that will come to you from time to time dealing with presumptions they are not an everyday occurrence at all rule 404 rules 401 and 402 anchor anchor the philosophy of the federal rules of evidence look first at rule 402 it says all relevant evidence is admissible except where the rules say otherwise and it also says this evidence which is not relevant is not admissible that anchors the philosophy of the federal rules of evidence and when you look at rule 401 definition of relevancy you can see how liberal the federal rules of evidence is with regard to the receipt of evidence rule 401 definition of relevancy is about as broad a definition as you can have look at it relevant evidence means evidence having any tendency to make the existence of any fact that is a consequence to the determination of the action more probable or less probable that it would be without the evidence that I suggest to you is about as broad a definition of relevance as the drafters could have made seldom will evidence in your courtroom be offered that really does not fit that broad definition of relevance so the judge as a very practical matter can approach his job by allowing any evidence any evidence offered to be received unless unless he or she finds some basis within the federal rules to exclude it so your job normally is to see if there is a basis in the federal rules to exclude evidence and if there is no basis in the federal rules to exclude evidence then the underlying philosophy suggest to you that you should receive it there are four or five or maybe six major rules of exclusion there are a number of very minor rules of exclusion I feel that rule 402 rule 403 rule 602 rule 802 and rule 1002 are your primary or major rules of exclusion rule 402 rule 403 rule 602 rule 802 and rule 1002 are what I perceive to be the major rules of exclusion we've already looked at rule 402 it excludes anything that's not relevant let's look at 403 because 403 is the one rule within the federal rules of evidence that provide to you the judge the widest discretion in excluding evidence it provides that although evidence is relevant the court may exclude it if the court concludes and understand this is discretionary if the court concludes that it is unfairly prejudicial might confuse the issues might mislead the jury or might cause undue delay or a waste of time or constitute a needless cumulative presentation of evidence you can see that 403 gives you a wide range of discretion in controlling the receipt of evidence in your court if you applied fairly and applied the way it was intended I suggest to you that because it is a discretionary rule when you are invoking it you refer to it in the record so that the appellate court will know that you are in fact exercising the discretion that Congress gave you by rule 403 to stop receiving cumulative evidence or to stop receiving evidence that you think is unfairly prejudicial as opposed to just prejudicial you know all evidence is prejudicial to one side or the other you will frequently hear attorneys say I object you honor that evidence is prejudicial well I bet he would like to keep out all prejudicial evidence but that's not a valid basis of objection it's got to be unfairly prejudicial or it needs to be excluded while I'm on that subject let me mention a couple of other examples of objections that you constantly hear that really are not valid objections to evidence I object you honor that's self-serving I never heard a witness certainly a party witness that didn't make self-serving statements on the witness stand and the trial would indeed be shortened if the rules of evidence were to exclude self-serving statements but the objection self-serving is not a valid rule of objection I object you honor that violates the parole evidence rule you will search the federal rules of evidence in vain to find a parole evidence rule the parole evidence rule is not a rule of evidence it is a substantive rule of law and while it may be a valid objection it is not an objection within the confines of the federal rules of evidence in my court we have some other silly and I call them silly objections I object you honor that calls for mental operation of a witness I don't know what the objective is trying to say to me there but it's grown up that that's a basic rule that's a basic objection in our area of the country calls for mental operation of the witness but there are a lot of times that I feel like witnesses in my court are not operating mentally but I sure would like for them to and it's certainly no objection to their testimony that they are operating mentally there are a lot of other objections that you hear that invades the province of the jury so what? so what? there's nothing wrong with that as you will see even in expert testimonies an expert witness when we get to that can testify as to the ultimate fact the ultimate fact in issue without violating the federal rules of evidence with regard to the use of expert testimony from time to time during the morning I may think of some more and I know you have a lot of other objections that you've heard that you've often wondered what the objective was communicating to you I suggest sometimes communicating a valid basis and other times he is communicating something that has grown up in the law in your area of the country that really is not in fact recognized not only by the federal rules of evidence but either by Wick, Moore McCormick or any of the other text writers on evidence even before the federal rules of evidence were adopted alright so much for rules 4, 1, 4, 2 and 4, 3 4, 2 is saying you receive evidence that's relevant you exclude evidence that's not relevant 4, 1 says nearly anything is relevant and 4, 3 gives you the discretion to exclude even relevant evidence if you have the opinion that it's unfairly prejudicial or repetitive or might confuse or mislead the jury Rule 404 announces the general principle that with only a few exceptions with only a few exceptions of a person's character a person's character is not admissible to prove that he acted in conformity with that character the exception most often experienced has to do with credibility and impeachment of witnesses which we will be covering a little bit later when we get to the article 6 rules Rule 404 also prohibits the admissibility of evidence of other acts of a person to show or prove that he acted in conformity with those other acts that is a general rule under 404 which has an immediate exception in 404b and also has another exception in 406 which we will discuss in a moment but the basic rule announced in 404 is that evidence of acts of a person are generally not relevant to prove that he acted in conformity they are with under 404b other acts may be admissible for purposes such as proof of motive opportunity intent preparation plan knowledge identity or absence of mistake in criminal cases in criminal cases Rule 404b involves a two step process normally first a determination that the offered evidence is relevant in the definition under 401 to an issue in the case other other than the defendant's character intent motive, plan, design is a relevant issue other than his character but you've got to first decide that the offered evidence is relevant to an issue other than his character and then second you must determine that the evidence possesses and this is the hardest one to apply that the evidence possesses probative value that is not outweighed by unfair prejudice to the defendant and of course otherwise satisfies Rule 403 but that is a very difficult situation to apply in criminal cases where the evidence is being offered to show intent knowledge motive you have as the judge the obligation to balance the need of the government for that evidence against not prejudice to the defendant but unfair prejudice to the defendant and if you conclude that it's unfair you exclude it if you conclude that it is not unfair then if it is relevant to some issue in the case other than simply his character 404B says you can receive it permit me to make some additional comments about Rule 404B which has emerged as one of the most cited rules in the federal rules of evidence first of all the rule was amended in December of 1991 to incorporate a notice requirement so in addition to the other limitations on the admission of other crimes wrongs or acts evidence under 404B the rule now requires the prosecution on request by the accused in the criminal case to provide reasonable notice in advance of trial of the general nature of any such evidence the prosecution intends to introduce at trial the amendment also allows the government to give notice during trial if the court excuses pre-trial notice on good cause shown this notice requirement applies regardless of how the government intends to use the evidence at trial whether during its case in chief for impeachment or as possible rebuttal evidence the reason for the amendment is two fold first to reduce surprise and second to provide a greater opportunity for an early resolution of the issue of admissibility notice that I simply said to provide a greater opportunity for an early resolution of the issue because of the rule 403 balancing requirement I shall discuss in a moment quite often the issue of admissibility of other crimes wrongs or acts evidence cannot be resolved until well into the trial or even as late as after the defendant has rested also in 1988 the supreme court addressed the respective roles of the court and the jury in considering rule 404B evidence and I'd like to talk about that for a moment the case was United States vs. Huddleston which is cited in your materials in the Huddleston case the supreme court held that the district court does not have to make a preliminary finding that the government has proved or the crime wrong or act by a preponderance of the evidence before it submits that evidence to the jury rather that evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed it the court rejected the defendant's argument that the judge should be required under a preponderance test to make a determination under rule 104A that the defendant committed the other crime wrong or act before admitting evidence of that act the court stressed that evidence is admissible under rule 404B only if it is relevant and stated in this context that similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor in other words the question of relevance is conditioned on the existence of a fact and as you'll remember that calls into play rule 104B you will recall that rule 104B says that when the relevancy of evidence depends upon the fulfillment of a condition of fact the court shall admit it upon or subject to the introduction of evidence sufficient to support a finding of the fulfillment of the condition and in making that ruling the court doesn't weigh credibility or make a finding that the government has proved the conditional fact by a preponderance of the evidence it simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact at issue in other words whether it could reasonably find that the other crime, wrong or act occurred and was committed by the defendant the Huddleston court stressed that in order to avoid the introduction of unduly prejudicial other crimes wrongs or acts evidence the evidence must first be offered for a proper purpose under rule 404B that is as probative as the material issue other than character second it must be relevant under rule 402 and as enforced by application of rule 104B and third the trial court must then make an assessment under rule 403 to determine whether the probative value of the other crimes evidence is substantially outweighed by its potential for unfair prejudice I strongly recommend that this 403 balancing be set forth in the record some circuits require such on the record balancing the reason for all these safeguards of course is that evidence of other crimes wrongs or acts on the part of the defendant that is other than the one he or she is on trial for is presumed to be prejudicial to the defendant and may in fact be unduly prejudicial to the defendant the danger of course is that the jury may accumulate the evidence of the various crimes and bad acts those charged and those uncharged but admitted under 404B and the jury may improperly decide that the defendant is a person of bad character with a general disposition to violate the law and that he or she acted in accordance with that disposition in the instant case by committing the crime charged that's the reason for the safeguards surrounding rule 404B alright 405 rule 405 merely establishes the mechanics for proving character where character is admissible you will recall that some text writers have said you prove it by getting the person's reputation in the community another group of text writers has said no no that's no good you all get a person's first hand opinion of the character well the federal rules of evidence have resolved this dilemma by saying both are proper or either is proper you can put a witness on the stand if character is a proper element of evidence and you can ace the witness after laying the proper predicate what in your opinion is this witness's character for such and such and the witness may give his own personal opinion or and you can also say and the witness can also testify as to what the person's reputation in the community as to that particular trait a character may be so either mechanical approach is available under rule 405 of the federal rules of evidence rule 406 provides that when the acts of a person or of a corporation for that matter are repeated so often that they become habit or routine then the habit or routine is relevant to prove that the person acted in conformity they are with you remember that under rule 404 A I indicated that as a normal proposition the fact that a person acts in a certain way is not relevant to prove that he later acted in that same way but at such point in time that those prior acts become a habit or a routine then rule 406 says you can receive it I can't offer you any real advice to determine when something becomes habit all I can do is to let you know that if prior acts do not rise to the dignity or status of habit or routine they can't be received to prove that a person acted in conformity they are with but when these prior acts become in your opinion a habit or routine then it is relevant to receive that habit or routine to let the jury decide whether or not on a given occasion a person acted in conformity they are with going back to our earlier discussion about presumptions it would be proper to receive in evidence evidence to the effect that every afternoon at 4 o'clock in this particular company's operation a mailman came through the office and gathered up mail out of a box and took it down to the mail room and from there it was sorted and sent to the U.S. mail it would also be proper to receive in evidence that each secretary in that office by 4 o'clock in the afternoon routinely put in that box for the mailman to pick up they are outgoing mail and once you establish that as habit or routine then it would be permissible to presume that the letter was mailed but if that does not in your opinion amount to a habit or a routine then rule 404A says that you cannot receive in evidence the fact that mail was put in this box to try and prove that it ultimately was mailed because the fact that a person did it one time is not to be considered a basis on which to conclude that he did it all the time unless each time it was done it eventually became a habit or routine and then 406 would permit it it's a little bit confusing it's very difficult to apply but it really is a discretionary matter for you and you have to decide whether or not it becomes a habit or routine alright let's look at rule 407 rule 407 is a one-subject rule very simple in application and is based upon a public policy determination that we should not have rules of evidence that discourage remedial measures for fear that if I take remedial measures it might come back to haunt me when I get to trial 407 prohibits the receipt of evidence of subsequent remedial measures to prove negligence and that is based on the public policy that we want our machinery repaired we want our sidewalks repaired we do not want to discourage people from making these repairs we have several other specific subject matter rules that are granted on this same public policy look at 408 it's the same symbol of public policy 408 says offers in compromise cannot be received statements made while you in compromise can't be received you see the obvious underlying public policy there to encourage settlement to encourage discussions notice that the rule does not 408 does not require the exclusion of evidence otherwise discoverable merely because it was revealed during the course of settlement discussions obviously a person can't walk into a settlement discussion and say everything bad about his case and then try and hide behind rule 408 if everything that he said that was bad otherwise discoverable it just simply means that the fact that it was said during settlement can't be used against him but if you can discover it from some other source then of course it can be used you've applied that as a lawyer in your practice in your limited time on the bench you have applied that it is really common sense there's another right behind 408 409 is another one of these public policy rules that excludes evidence of furnishing medical help once again here this rule is designed to encourage people to go ahead and offer to provide medical services and if by offering medical services to an injured party it could come back in the form of an admission of liability then you would never do it and consequently rule 409 is merely evidencing the public policy that we want people encouraged rather than discouraged to provide medical reimbursement rule 410 is another single subject rule and makes inadmissible a no-low contender plea and of course a withdrawn plea of guilty as well as all statements that were made during the course of tendering the no-low contender plea or the withdrawn plea of guilty obviously this has a very narrow exception and it also is granted on the public policy of trying to encourage people to give pleas of guilty notice however that 410 does not prohibit statements made in tendering a plea of guilty that has been accepted it is only dealing with pleas of guilty that were withdrawn or rejected or pleas of no-low contender rule 411 generally prohibits the receipt of the fact of liability insurance coverage or the absence thereof once again this is another public policy limited applicable rule of evidence rule 412 I even omitted that from the text handout because it was about a two-page rule and I've never had it applied in my court but it has to do with the public policy of the relevance of a victim's past behavior in a rape case if you ever have need to apply that rule my FTS number is 229 1792 calmly I'm not going to take up time to discuss it now but it also is one of those limited purpose exclusions from evidence let's quickly look again at the article 4 rules because there for the first time we have hit some real meat of what the federal rules are all about you'll recall that I indicated that rule 401 and 402 anchor the philosophy of the federal rules they are saying receive everything that's relevant reject everything that's not relevant but nearly everything is relevant and I say that because of the broad definition of relevancy under 401 that is the basic philosophy of the federal rules of evidence and it says but the judge in his discretion can reject even relevant evidence if he thinks it's unfairly prejudicial need his repetition otherwise might confuse the issues or prolong the trial rule 404 as a general proposition is saying character evidence is not admissible normally certainly the fact that a person did something one time is not admissible to prove he did it another time unless as 406 is saying it becomes having a routine 404b I commend to you to study a little bit it is one of the first rules that we've discussed that is difficult to apply and it has to do with the exception to that basic rule of 404a that character evidence is not admissible to prove that a person actually conformed to that width 404b says it is if it is being received for the purpose of showing motive intent preparation knowledge in the light after that we've got a series of four or five rules that are specific public opinion public policy rules excluding evidence such as offers in compromise payment of medical expenses pleas of guilty withdrawn liability insurance and subsequent remedial measures 404 the article four rules are not complex but they are rather broad in scope and I commend them to you for further study particularly the rule 404b


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