Admissibility of Evidence in Federal Court Flowchart
This flowchart outlines the key considerations for determining whether evidence is admissible in federal court. For more information
on the admissibility and exclusion of evidence, search Evidence in Federal Court: Basic Principles on Practical Law.
Hon. Paul W. Grimm, US District Court Judge, District of Maryland, and Gregory P. Joseph, Joseph Hage Aaronson LLC, with Practical Law Litigation
Is
Is the
the item
item relevant
relevant under
under Federal
Federal Rule
Rule of
of Evidence
Evidence (FRE)
(FRE) 401?
401?
Search
Search Evidence
Evidence in
in Federal
Federal Court:
Court: Basic
Basic Principles
Principles for
for
more
more on
on relevance.
relevance.
The item is
inadmissable.
NO
Is
Is the
the item
item excluded
excluded from
from evidence
evidence by:
by:
„
The
„„
„
The US
US Constitution?
Constitution?
„
AA federal
„„
„
federal statute?
statute?
„
The
„„
„
The FRE,
FRE, such
such as
as because
because the
the item
item isis
impermissible
impermissible evidence
evidence of:
of:
zz„
„character
character or
or “bad
“bad acts”
acts” under
under FRE
FRE
404?404?
zz„
„habit
habit under
under FRE
FRE 406?
406?
zz„
„subsequent
subsequent remedial
remedial measures
measures under
under
FRE
FRE 407?
407?
YES
aa settlement
settlement agreement
agreement or
or
negotiations
negotiations under
under FRE
FRE 408?
408?
zz„
„a
a person
person or
or an
an entity’s
entity’s payment
payment of
of
another
another person’s
person’s medical
medical or
or similar
similar
expenses
expenses under
under FRE
FRE 409?
409?
zz„
„plea
plea negotiations
negotiations under
under FRE
FRE 410?
410?
zz„
„liability
liability insurance
insurance under
under FRE
FRE 411?
411?
„
Other
„„
„
Other rules
rules prescribed
prescribed by
by the
the US
US
Supreme
Supreme Court?
Court?
(FRE
(FRE 402.)
402.)
zz„
„
NO
Is the item protected from disclosure by either:
„„The attorney-client privilege?
„„The work product doctrine?
YES
Search Attorney-Client Privilege and Work
Product Doctrine Toolkit for a collection of
resources to help counsel navigate the
attorney-client privilege and work product
doctrine in federal litigation.
NO
Is the item’s probative value substantially outweighed
by the risk of:
„„Unfair prejudice?
„„Confusing the issues?
„„Misleading the jury?
„„Undue delay?
NO
Is the item either subject to judicial notice under
FRE 201(b) or self-authenticating under FRE 902
because it is:
„„A public record (FRE 902(1)-(4))?
„„An official publication (FRE 902(5))?
„„A newspaper, magazine, or similar publication
(FRE 902(6))?
„„A trade inscription (FRE 902(7))?
„„A business record (FRE 902(11)-(12))?
© 2017 Thomson Reuters. All rights reserved.
The item is
inadmissable.
YES
The item is
inadmissable.
„„Wasting time?
„„Needlessly presenting cumulative evidence?
(FRE 403.)
Search Evidence in Federal Court: Basic
Principles for more on the exclusion of relevant
evidence under FRE 403.
YES
A court is likely to
exclude the item.
Search E-Discovery: Authenticating
Electronically Stored Information or see
page 32 in this issue for more on judicial
notice and self-authenticating ESI.
Search Using Documents as Evidence
Checklist for more on self-authenticating
evidence generally.
The Journal | Litigation | February/March 2017 41
NO
NO
The item is
inadmissable.
YES
Does extrinsic evidence establish the item’s authenticity
under FRE 901(b), such as:
„„Testimony from a knowledgeable witness (FRE 901(b)(1))?
„„Comparison by an expert witness or the trier of fact to
other authentic items (FRE 901(b)(3))?
„„Distinctive characteristics (FRE 901(b)(4))?
„„Public records or reports (FRE 901(b)(7))?
„„The reliability of the process used to create the item
(FRE 901(b)(9))?
Is the item hearsay under FRE 801(c) and
not subject to either of the exemptions
provided in FRE 801(d)?
YES
Search Evidence in Federal Court:
Basic Principles and Using
Documents as Evidence Checklist
for more on hearsay.
Search E-Discovery: Authenticating Electronically
Stored Information or see page 32 in this issue and
Using Documents as Evidence Checklist for more on
authentication through extrinsic evidence.
Does the item qualify for any of the following exceptions
to the rule against hearsay that might apply regardless
of the declarant’s availability, such as where the item is
evidence of:
„„A present sense impression (FRE 803(1))?
„„An excited utterance (FRE 803(2))?
„„A statement of a mental, emotional, or physical
condition existing at the time the statement was made
(FRE 803(3))?
„„A statement made for medical diagnosis or treatment
(FRE 803(4))?
„„A recorded recollection (FRE 803(5))?
„„A record of a regularly conducted activity or the absence
of one (FRE 803(6), (7))?
„„A public record or the absence of one (FRE 803(8)-(10))?
NO
„„Certain religious, personal, family, and history records
and information (FRE 803(11)-(13), (19), (23))?
„„Certain property records and information (FRE 803(14)-
(15), (20), (23))?
„„A statement from an ancient document (FRE 803(16))?
„„A market report or similar commercial publication (FRE
803(17))?
„„A statement from a learned treatise, periodical, or
pamphlet (FRE 803(18))?
„„The reputation of a person’s character (FRE 803(21))?
„„A final judgment of conviction (FRE 803(22))?
Search Evidence in Federal Court: Basic Principles
for more on these exceptions to the prohibition
against hearsay.
NO
Is the declarant unavailable to testify under FRE 804(a) and,
if so, does the item qualify for any of the following additional
exceptions to the rule against hearsay that might apply if the
declarant is unavailable, such as where the item constitutes
evidence of:
„„Prior testimony under oath (FRE 804(b)(1))?
„„A statement made under the belief of imminent death
(FRE 804(b)(2))?
YES
„„A statement against the declarant’s interest (FRE 804(b)(3))?
„„A statement of personal or family history (FRE 804(b)(4))?
„„A statement offered against a party that wrongfully caused the
declarant’s unavailability (FRE 804(b)(6))?
Search Evidence in Federal Court: Basic Principles for more
on these exceptions to the prohibition against hearsay.
NO
NO
YES
Does the item qualify for the residual
hearsay exception under FRE 807?
YES
The item is
inadmissable.
Search Evidence in Federal Court:
Basic Principles for more on the
residual hearsay exception.
YES
Is the item a writing (including electronically stored information under
FRE 101(b)(6)), recording, or photograph offered to prove its contents
under FRE 1002?
Search Evidence in Federal Court: Basic Principles for information on
the best evidence rule, which generally requires that counsel proffer
an original writing, recording, or photograph to prove its contents.
NO
YES
The item is admissible and may be offered
through a competent witness (FRE, Article VI).
42
February/March 2017 | Practical Law
© 2017 Thomson Reuters. All rights reserved.
YES
Is the item an original under FRE 1001(d) and FRE 1002?
NO
The item is admissible and may be offered
through a competent witness (FRE, Article VI).
YES
Is the item a duplicate under FRE 1001(e) and FRE 1003?
YES
NO
YES
Do the circumstances make it unfair to admit a duplicate,
or is there a genuine question about the original
document’s authenticity under FRE 1003?
The item is
inadmissable.
The item is admissible and may be offered
through a competent witness (FRE, Article VI).
NO
Is the item “other evidence” of the
writing, recording, or photograph’s
content (that is, neither an original nor
a duplicate of the writing, recording, or
photograph), and, if so:
„„Were all originals lost or destroyed,
but not due to the proponent’s bad
faith (FRE 1004(a))?
„„Is an original not available through
any judicial process (FRE 1004(b))?
YES
„„Did the party against whom the
item is offered have control of the
original (or equally admissible
duplicate) when the party knew of
its evidentiary value, yet failed to
produce it (FRE 1004(c))?
„„Is the item is not closely related to a
controlling issue (FRE 1004(d))?
If the answer to one or more of the
above is yes, an original is not required.
NO
YES
Is the item:
„„A qualifying copy offered to prove the content of an
official record or other document that was publicly
filed or recorded (FRE 1005)?
„„A summary, chart, or calculation offered to prove
the content of voluminous writings, recordings, or
photographs (FRE 1006)?
„„A party’s testimony, deposition, or written statement
that the proponent offers to prove the contents of a
writing, recording, or photograph against that party?
(FRE 1007)?
The item is admissible and may be offered
through a competent witness (FRE, Article VI).
NO
YES
The item is
inadmissable.
The item is admissible and may be offered
through a competent witness (FRE, Article VI).
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The Journal | Litigation | February/March 2017 43