Federal Rules of Evidence

Atlanta trial lawyer Robert J. Fleming shares trial notes discussing he differences between the Georgia Rules of Evidence and the Federal Rules of Evidence. While their are many difference and the two sets of rules must be read in their entirety to fully understand all of the difference, Mr. Fleming shares some of the major differences such as the treatment of admission by a party, agency, authentication of documents at trial, relevancy, impeachment with prior testimony, and the treatment of hearsay including the business records exception.


  • F.R.E. 801(d)(2)(A) provides: "A statement is not hearsay if . . . the statement is offered against a party and is the party's own statement in either an individual capacity or a representative capacity.
  • Party admissions are admissible even though they are otherwise unqualified opinions or not based on the party's knowledge.


  • The federal rule is very liberal and generous. F.R.E. 801(d)(2)(1).

Authentication of Documents

  • Documents attached to the PTO are admitted to be authentic.

Balancing Relevance and Negative Effects

  • 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. F.R.E. 403.
  • Evidence should be excluded if its negative effects "substantially" outweigh it probative value. United States v. Meesler, 762 F2d 867 (11th Cir.1985).

Prior Testimony or Written Admission of Party

  • Contents of writings, recordings, or photographs may be proved by the testimony or depositions of the party against whom offered or by the party's written admission, without accounting for the non-production of the original. F.R.E. 1007.

Business Records Exception - F.R.E. 803(6)

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

  • Former Testimony- Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination. F.R.E. 804(b)(1).
  • The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
    1. That the witness is dead; or
    2. that the witness is at a greater distance than 100 miles of the place of trial or hearing, or is not outside the United States; or
    3. that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or
    4. that the party offering the deposition has been unable to procure the attendance the attendance of the witness by subpoena; or
    5. upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. Fed.R.Civ.Proc. 32(a)(3).

Documentary Evidence

  • Every document or record offered in evidence at trial must satisfy relevance, authentication, hearsay and best evidence concerns.

Habit and Routine Practice

  • Evidence of the habit of a person or 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. F.R.E. 406.


  • In federal court, hearsay admitted without objection is competent, legal evidence to support a verdict on conviction. Diaz v. United States, 223 U.S. 442 (1912).

Hearsay Exceptions

  • Impeachment - Prior Contradictory Statement--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 by 801(d)(2).
  • Note: Under the federal rules, a prior inconsistent statement is still hearsay and admitted only for impeachment purposes, unless, the prior statement was made under oath, in a trial or similar proceeding. F.R.E. 801(d)(1)(A).
  • Note: The federal rules do not require that the witness be shown or draw attention to the prior inconsistent statement before impeaching the witness with the prior statement. But, the federal rule does require that the witness be given an opportunity to explain or deny the prior statement before any extrinsic evidence of the prior statement may be offered. Wilmington Trust Co. v. Manufacturer's Life Ins. Co., 749 F2d 694 (11th Cir. 1985).
  • Hospital and Doctor's Records- F.R.E. 803(6) provides a broad business records exception, that, unlike Georgia's, allows statements of medical diagnoses and opinions in the records. However, if the author of the opinion in the report does not testify, federal courts may exclude the opinion if enough questions are raised about the author's qualifications. Higgins v. Martin Marietta, 752 F2d 492 (10th Cir.1985).
  • Medical Bills--There is no federal rule comparable to OCGA 24-7-9 Collins v. Kibort, 143 F3d 331 (7th Cir. 1998).
  • Necessity Exception to Hearsay--Requires: (a) statement is offered as evidence of a material fact; (b) the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure with reasonable efforts; and (c) that general purposes of these rules and the interests of justice will be best served by admission of the statement into evidence. F.R.E. 807.
  • Public Records--Note: This includes police reports. F.R.E. 803 creates a hearsay exception for: (8) Public Records and Reports. Records, reports, statements, or data compilations in any form, of public offices or agencies setting forth: (a) the activities of the office or agency; (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases, matters observed by police officers and other law enforcement personnel, or (c) in civil actions and proceedings [] factual findings resulting from an investigation made pursuant to authority granted by law, unless the source of information or other circumstances indicate a lack of trustworthiness.

Note: 803 (8) may admit public reports based on information gathered from many sources. ("Factual findings"), and which include opinions and conclusions, even though the author of the opinions is not a witness at trial. Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988); Hines v. Brandon Steel Decks, Inc., 886 F2d 299 (11th Cir.1989).

  • Statement Against Interest

Impeachment With Crimes or Bad Acts of the Parties

  • Evidence of other crimes, wrongs, or acts is not admissible to prove 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. F.R.E. 404(b).
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