Rules of Evidence Summary

The Uniform Rules of Evidence were originally promulgated in 1974. There were extensive amendments in 1986 and a minor amendment in 1988. New amendments have been added in 1999. The Uniform Rules of Evidence attempts to achieve uniformity of the law of evidence between all states. It also provides large scale unity between state rules of evidence and the Federal Rules of Evidence. The ultimate objective is a common set of rules that determine what may be introduced in evidence in civil or criminal litigation in all courts, whether state or federal courts.

The Uniform Rules of Evidence are organized into substantive articles: Judicial Notice; Presumptions; Relevancy and its Limits; Privileges; Witnesses; Opinions and Expert Testimony; Hearsay; Authentication and Identification; and Contents of Writings, Recordings, and Photographs. Not every article has been amended. It is the objective of this summary to cover the important amendments, but not to cover the entire Uniform Rules. These are the principal amendments:

1.      Section 404, which is in the article on relevancy and its limits, provides the rules on character evidence and evidence of other crimes committed by the same person. Generally, such evidence may not be admitted to prove character, and is not considered relevant to the issue of character. It may be admitted, however, to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. However, the 1999 amendments provide that a party intending to bring such evidence must provide reasonable notice before trial, or have that requirement waived during trial for good cause. The court must conduct a hearing and make a finding that there is clear and convincing evidence that the other crime, wrong or act was committed; that the evidence is relevant, and that the probative value of the evidence outweighs the danger of unfair prejudice, before it may be introduced during trial.

2.      Rule 410, in the same article, has generally provided that evidence of a plea later withdrawn, an admission of a charge or a nolo contendere, and the like, is not admissible in a proceeding against the person making the plea or offer. The 1999 amendments provide for exceptions to the general rule for a plea, statement or plea discussion made contemporaneously with a statement that is introduced, and that in fairness, ought to be admitted as evidence with the contemporaneous statement. There is also an exception for perjured testimony or false statement made under oath, on the record, and in the presence of counsel in a criminal proceeding. This kind of evidence is, therefore, relevant in these instances.

3.      Rule 412 on prior sexual behavior, also in the article on relevancy, has substantially changed. Generally, evidence of a sexual crime victim's sexual behavior has not been admissible in a criminal case against another for that sexual misconduct. A victim's behavior largely remains inadmissible, but there are broader exceptions than in the prior rule. The 1999 amendments define "sexual behavior" broadly as ''behavior relating to the sexual activities of an individual, including the individual's experience or observation of sexual intercourse or sexual contact use of contraceptives, history of marriage or divorce, sexual predisposition, expressions of sexual ideas or emotions, and activities of the mind such as fantasies or dreams." New exceptions include evidence that a person other than the accused was the source of the alleged victim's knowledge of sexual behavior; evidence of consent, if the alleged victim's sexual behavior involved the accused or constituted conduct so distinctive and which so closely resembles the accused's version of the sexual behavior of the alleged victim at the time of the alleged sexual misconduct that it corroborates the accused's reasonable belief that the alleged victim had consented to the actor acts of alleged misconduct; or, a fact of consequence whose exclusion would violate the constitutional rights of the accused. There are new notice and hearing procedures that are required before such evidence is deemed admissible.

4.      Rule 503, under privileges, provides for the physician and psychotherapist privilege from testifying against a patient. The 1999 amendments add a new category, "mental-health provider" as another entity privileged under Rule 503. The relationships between physician and patient, psychotherapist and patient and, now, mental-health provider and patient, privilege the physician, psychotherapist or mental-health provider from having to testify in court on anything respecting that relationship. A nearly absolute guarantee of privacy is essential to the therapeutic benefits of those relationships. 

5.      Rule 702, under opinion and expert testimony, allows testimony respecting "scientific, technical or other specialized skill" by a qualified expert that is offered in the form of an opinion. Opinion testimony by an expert continues in amended Rule 702, but the standards for qualification of an expert to offer opinion testimony are expressly addressed as they are not in original Rule 702. The court will consider a number of issues in determining whether or not to let an alleged expert testify, including the following: whether the testimony will assist the trier of fact to understand evidence; whether the qualifications of the alleged expert are sufficient; whether the testimony is based upon principles or methods that are reasonably reliable; whether the testimony is based upon sufficient and reliable facts or data; and, whether the witness has applied the principles or methods reliably to the facts of the case. There is a presumption of reliability if the principle or method has "substantial acceptance" within the relevant scientific, technical or specialized community, and a presumption of unreliability if the principle or method does not. Amended Rule 702 also includes a group of reliability factors that a court can consider that might be termed badges of reliability, characteristics of a method or principle that would lead to the conclusion that the method or principle is reliable. Among them are the extent to which the principle or method has been tested, and, the adequacy of research methods employed in testing the principle or method.

These rule changes generally reflect the most recent changes in the Federal Rules of Evidence. Each rule change reflects experience with the Federal Rules and the Uniform Rules. Those states considering adoption of the Uniform Rules or that have the Uniform Rules and need to update them should strongly consider adopting these amendments.