FEDERAL RULES OF EVIDENCE

ARTICLE I. GENERAL PROVISIONS

RULE 103. RULINGS ON EVIDENCE

Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

RULE 104. PRELIMINARY QUESTIONS

Questions of admissibility generally. Preliminary questions concerning

• the qualification of a person to be a witness,

• the existence of a privilege, or

• the admissibility of evidence

shall be determined by the court, subject to the provisions of subdivision (b). In making its determination the court is not bound by the rules of evidence except those with respect to privileges.

Relevancy conditioned on fact. 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.

Although the Jury must ultimately determine if the condition is satisfied, it is the Judge who must determine whether the proof is enough for the jury to be able to make the determine.

Hearing of jury.

Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury.

Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.

Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.

Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

RULE 105. LIMITED ADMISSIBILITY

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

If the risk is too great that the jury would use the evidence to prove the fact for which it is not admissible, then the Judge may exclude the evidence under rule 403 or some other limiting rule such as Due Process.

RULE 106. REMAINDER OF OR RELATED WRITINGS OR RECORDED STATEMENTS

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

The rest of the letter could be introduced:

1. At the time of partial introduction,

2. On cross examination (even if it goes beyond the scope of direct), and

3. At the time of rebuttal.

ARTICLE II. JUDICIAL NOTICE

RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS

Scope of rule. This rule governs only judicial notice of adjudicative facts.

Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either:

1. generally known within the territorial jurisdiction of the trial court or

2. capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

When discretionary. A court may take judicial notice, whether requested or not.

When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

Time of taking notice. Judicial notice may be taken at any stage of the proceeding.

Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

“Adjudicative facts” are facts that are specific to a particular litigation, such as whether a certain street is in a business or residential district.

“Legislative facts” refer to more general facts about society and human nature that are not available for judicial notice such as whether business districts usually have more pedestrian traffic than residential districts.

“Communicative facts” refer to the ordinary meaning of language and words essential to the understanding of testimony at trials.

“Evaluative facts” refer to facts that involve ordinary knowledge of the world such as Lori loves Frank.

ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

RULE 301. PRESUMPTIONS IN GENERAL IN CIVIL ACTIONS AND PROCEEDINGS

In all civil actions and proceedings 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 going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast.

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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.

Direct Evidence – if believed by the jury proves the fact

Circumstantial Evidence – if believed by the jury provides an inference of the facts.

Evidentiary Hypothesis – Common sense suggests [xxx] therefore, testimony that [yyy] would tend to support the fact that [zzz].

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 prescribed by the Supreme Court pursuant to statutory authority.

Evidence which is not relevant is not admissible.

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, or

• confusion of the issues, or

• misleading the jury, or

• by considerations of undue delay, or

• waste of time, or

• needless presentation of cumulative evidence.

If Probative value of the evidence is substantially outweighed by one of the dangers, then it will be excluded.

Prejudicial effect >> Probative Value -- DO NOT ADMIT

RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES

1. Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

1. Character of accused. Evidence of a pertinent trait of 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.

2. 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 action in conformity therewith.

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,

provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

RULE 405. METHODS OF PROVING CHARACTER

1. 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.

2. 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 that person's conduct.

RULE 406. HABIT; ROUTINE PRACTICE

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.

RULE 407. SUBSEQUENT REMEDIAL MEASURES

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction. 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 the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also 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. INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS, AND RELATED STATEMENTS

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

1. a plea of guilty which was later withdrawn;

2. a plea of nolo contendere;

3. any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

4. any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible

1. in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or

2. in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

RULE 411. LIABILITY INSURANCE

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person 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.

RULE 412. SEX OFFENSE CASES; RELEVANCE OF ALLEGED VICTIM'S PAST SEXUAL BEHAVIOR OR ALLEGED SEXUAL PREDISPOSITION

1. Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

Evidence offered to prove that any alleged victim engaged in other sexual behavior.

Evidence offered to prove any alleged victim's sexual predisposition.

2. Exceptions.

1. In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

1. evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;

2. evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

3. evidence the exclusion of which would violate the constitutional rights of the defendant.

2. In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.

3. Procedure to determine admissibility.

1. A party intending to offer evidence under subdivision (b) must –

1. file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

2. serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.

2. Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

RULE 413. EVIDENCE OF SIMILAR CRIMES IN SEXUAL ASSAULT CASES

1. In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

2. In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

3. This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

4. For purposes of this rule and Rule 415, "offense of sexual assault" means a crime under Federal law or the law of a State (as defined in section 513 of tide 18, United States Code) that involved –

1. any conduct proscribed by chapter 109A of title 18, United States Code;

2. contact, without consent, between any part of the defendant's body or an object and the genitals or anus of another person;

3. contact, without consent, between the genitals or anus of the defendant and any part of another person's body;

4. deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or

5. an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4).

RULE 414. EVIDENCE OF SIMILAR CRIMES IN CHILD MOLESTATION CASES

1. In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

2. In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow or good cause.

3. This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

4. For purposes of this rule and Rule 415, "child" means a person below the age of fourteen, and "offense of child molestation" means a crime under Federal law or the law of a State (as defined in section 513 of tide 18, United States Code) that involved –

any conduct proscribed by chapter 109A of title 18, United States Code, that was committed in relation to a child;

any conduct proscribed by chapter 110 of tide 18, United States Code;

contact between any part of the defendant's body or an object and the genitals or anus of a child;

contact between the genitals or anus of the defendant and any part of the body of a child;

deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or

an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5).

RULE 415. EVIDENCE OF SIMILAR ACTS IN CIVIL CASES CONCERNING SEXUAL ASSAULT OR CHILD MOLESTATION

1. In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

2. A party who intends to offer evidence under this Rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

3. This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

ARTICLE VI. WITNESSES

RULE 601. GENERAL RULE OF COMPETENCY

Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

RULE 602. LACK OF PERSONAL KNOWLEDGE

A witness may not testily to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

RULE 603. OATH OR AFFIRMRMATION

Before testifying, every witness shall be required to declare that the witness will testily truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.

RULE 607. WHO MAY IMPEACH

The credibility of a witness may be attacked by any party, including the party calling the witness.

There are five basic ways to impeach a witnesses’ credibility:

Bias (including Animus, sympathy, motive and corruption)

Defect in Sensory or mental capacity

Bad Character for Truthfulness

1. Prior bad acts showing dishonesty (FRE 608(b))

2. Prior Criminal convictions (FRE 609)

iii) Reputation or opinion evidence (FRE 608(a))

Prior inconsistent Statement (FRE 613)

Contradiction (by other evidence or testimony)

RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS

1. Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:

1. the evidence may refer only to character for truthfulness or untruthfulness, and

2. evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

2. Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness

1. concerning the witness' character for truthfulness or untruthfulness, or

2. concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters which relate only to credibility.

RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME

1. General rule. For the purpose of attacking the credibility of a witness,

1. evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if

• the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and

• evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

2. evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

Probative Value >= Prejudicial Effect to the accused = ADMIT

2. Time limit.

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Probative Value >> Prejudicial Effect to the accused = ADMIT

3. Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if

1. the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or

2. the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

4. Juvenile adjudication Evidence of juvenile adjudication is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

5. Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

RULE 611. MODE AND ORDER OF INTERROGATION AND PRESENTATION

1. Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to

1. make the interrogation and presentation effective for the ascertainment of the truth,

2. avoid needless consumption of time, and

3. protect witnesses from harassment or undue embarrassment.

2. Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

3. Leading questions. Leading questions should not he used on the direct examination of a witness except as may he necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

RULE 612. WRITING USED TO REFRESH MEMORY

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either:

1. while testifying, or

2. before Testifying,

if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to

have the writing produced at the hearing,

to inspect it,

to cross-examine the witness thereon, and

to introduce in evidence those portions which relate to the testimony of the witness.

If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall

• examine the writing in camera,

• excise any portions not so related, and

• order delivery of the remainder to the party entitled thereto.

Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.

If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

RULE 613. PRIOR STATEMENTS OF WITNESSES

1. Examining witness concerning prior statement In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

2. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party opponent as defined in rule 801(d)(2).

RULE 615. EXCLUSION OF WITNESSES

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of

1. a party who is a natural person, or

2. an officer or employee of a party which is not a natural person designated as its representative by its attorney, or

3. a person whose presence is shown by a party to be essential to the presentation of the party's cause.

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

RULE 701. OPINION TESTIMONY BY LAY WITNESSES

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are

1. rationally based on the perception of the witness and

2. helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

RULE 702. TESTIMONY BY EXPERTS

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testily thereto in the form of an opinion or otherwise.

RULE 703. BASES OF OPINION TESTIMONY BY EXPERTS

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reason-ably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

RULE 704. OPINION ON ULTIMATE ISSUE

1. Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

2. No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

RULE 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

ARTICLE VIII. HEARSAY

RULE 801. DEFINITIONS

The following definitions apply under this article:

Statement. A "statement is

1. an oral or written assertion, or

2. nonverbal conduct of a person,

if it is intended by the person as an assertion.

Declarant. A "declarant" is a person who makes a statement.

Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Statements which are not hearsay. A statement is not hearsay if-

1. Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is

1. inconsistent with the declarant's testimony, and

was given under oath subject to the penalty of perjury at a

trial, hearing or other proceeding, or in a deposition, or

2. consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of

recent fabrication or

improper influence or

improper motive, or

3. one of identification of a person made after perceiving the person; or

2. Admission by party opponent. The statement is offered against a party and is

the party's own statement, in either an individual or a representative capacity or

a statement of which the party has manifested an adoption or belief in its truth, or

a statement by a person authorized by the party to make a statement concerning the subject, or

a statement by the party's agent or servant concerning a matter within the scope of the agency of employment, made during the existence of the relationship, or

a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subparagraph (C), the agency or employment relationship and scope thereof under subparagraph (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subparagraph (E).

RULE 802. HEARSAY RULE

Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL