CHAPTER 109—ADMISSIBILITY OF EVIDENCE; UNIFORM RULES OF EVIDENCE

SUBCHAPTER I-GENERAL PROVISIONS

Bec.

2731. Definitions.

2732. Scope of chapter.

2733. Undisputed matter; pre-trial conferences and admissions.

2734. Effect of erroneous admission of evidence.

2735. Effect of erroneous exclusion of evidence.

2736. Limited admissibility.

2737. General abolition of disqualifications and privileges of witnesses, and of exclusionary rules.

2738. Preliminary inquiry by judge.

SUBCHAPTER II-JUDICIAL NOTICE

2761. Facts which must or may be judicially noticed.

2762. Determination as to propriety of judicial notice and tenor of matter noticed.

2763. Instructing the trier of fact as to matter judicially noticed.

2764. Judicial notice in proceedings subsequent to trial.

2791. Definition.

SUBCHAPTER III-PRESUMPTIONS

2792. Effect of presumptions.

2793. Inconsistent presumptions.

2794. Burden of proof not relaxed as to some presumptions.

2823. Prerequisites of knowledge and experience.

2824. Evidence generally affecting credibility.

2825. Limitations on evidence of conviction of crime as affecting credibility. 2826. Further limitations on admissibility of evidence affecting credibility.

SUBCHAPTER V-PRIVILEGES

2851. Privilege of accused.

2852. Definition of incrimination.

2853. Self-incrimination; exceptions.

2854. Lawyer-client privilege.

2855. Physician-patient privilege.

2856. Marital privilege; confidential communications.

2857. Priest-penitent privilege; definition; penitential communications. 2858. Religious belief.

2859. Political vote.

2860. Trade secret.

2861. Secret of state.

2862. Official information.

2863. Identity of informer.

2864. Waiver of privilege by contract or previous disclosure.

2865. Admissibility of disclosure wrongfully compelled.

2866. Reference to exercise of privileges.

2867. Effect of error in overruling claim of privilege.

SUBCHAPTER VI-EXTRINSIC POLICIES

AFFECTING ADMISSIBILITY

2891. Evidence to test a verdict.

2892. Testimony by the judge.

2893. Testimony by a juror.

2894. Testimony of jurors not limited except by this chapter.

2895. Discretion of judge to exclude admissible evidence.

2896. Character; manner of proof.

2897. Character trait as proof of conduct.

2898. Character trait for care or skill; inadmissible to prove quality of conduct. 2899. Habit or custom to prove specific behavior.

2000. Opinion and specific instances of behavior to prove habit or custom.

2001. Subsequent remedial conduct.

2002. Offer to compromise and the like, not evidence of liability.

2003. Offer to discount claim, not evidence of invalidity.

2904. Liability insurance.

2005. Other crimes or civil wrongs.

Sec.

SUBCHAPTER VII-EXPERT AND OTHER OPINION TESTIMONY

2931. Testimony in form of opinion.

2932. Preliminary examination.

2933. Hypothesis for expert opinion not necessary.

2934. Appointment of experts.

2935. Compensation of expert witnesses.

2936. Credibility of appointed expert witness.

2961. Definitions.

SUBCHAPTER VIII-HEARSAY EVIDENCE

2962. Hearsay evidence excluded; exceptions.

2963. Discretion of judge under exceptions (15), (16), (17), (18) and (19) to

exclude evidence.

2964. Credibility of declarant.

2965. Multiple hearsay.

SUBCHAPTER IX-AUTHENTICATION AND CONTENT OF WRITINGS

2991. Authentication required; ancient documents.

2992. Authentication of copies of records.

2993. Certificate of lack of record.

2994. Documentary originals as the best evidence.

2995. Proof of attested writings.

2996. Photographic copies to prove content of business and public records.

Subchapter I-General Provisions

§ 2731. Definitions

"Evidence" means the means from which inferences may be drawn as a basis of proof in duly constituted judicial or fact-finding tribunals, and includes testimony in the form of opinion, and hearsay.

"Relevant evidence" means evidence having any tendency in reason to prove any material fact.

"Proof" means all of the evidence before the trier of the fact relevant to a fact in issue which tends to prove the existence or nonexistence of such fact.

"Burden of proof" means the obligation of a party to meet the requirements of a rule of law that the fact be proved either by a preponderance of the evidence or by clear and convincing evidence or beyond a reasonable doubt, as the case may be. Burden of proof is synonymous with "burden of persuasion."

"Burden of producing evidence" means the obligation of a party to introduce evidence when necessary to avoid the risk of a directed verdict or peremptory finding against him on a material issue of fact. "Conduct" includes all active and passive behavior, both verbal and non-verbal.

"The hearing", unless some other is indicated by the context of the section where the term is used, means the hearing at which the question under a section is raised, and not some earlier or later hearing. "Finding of fact" means the determination from proof or judicial notice of the existence of a fact. A ruling implies a supporting finding of fact; separate or formal finding is not required unless required by a statute or rule applicable in the Canal Zone.

"Guardian" means the person, committee, or other representative authorized by law to protect the person or estate or both of an incompetent (or of a sui juris person having a guardian) and to act for him in matters affecting his person or property or both. An incompetent is a person under disability imposed by law.

"Judge" means member or members or representative or representatives of a court conducting a trial or hearing at which evidence is introduced.

"Trier of fact" includes a jury and a judge when he is trying an issue of fact other than one relating to the admissibility of evidence. "Verbal" includes both oral and written words.

"Writing" means handwriting, typewriting, printing, photostating, photographing and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof.

§ 2732. Scope of chapter

Except to the extent to which it may be relaxed by other procedural rule or statute applicable to the specific situation, this chapter applies in every proceeding, both criminal and civil, conducted by or under the supervision of a court, in which evidence is produced. § 2733. Undisputed matter; pre-trial conferences and admissions If there is no bona fide dispute between the parties as to a material fact in a civil action, the issues for trial may be limited in a pre-trial conference or a party may obtain an admission of facts or of genuineness of documents as provided by Rules 16 and 36 of the Federal Rules of Civil Procedure.

§ 2734. Effect of erroneous admission of evidence

Errors in the admission of evidence are governed by Rules 46 and 61 of the Federal Rules of Civil Procedure in civil actions, and by Rules 51 and 52 of the Federal Rules of Criminal Procedure in criminal actions.

§ 2735. Effect of erroneous exclusion of evidence

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless (1) it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers, and (2) the court which passes upon the effect of the error or errors is of opinion that the excluded evidence would probably have had a substantial influence in bringing about a different verdict or finding.

§ 2736. Limited admissibility

When relevant evidence is admissible as to one party or for one purpose and is inadmissible as to other parties or for another purpose, the judge upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.

§ 2737. General abolition of disqualifications and privileges of witnesses, and of exclusionary rules

Except as otherwise provided in this chapter, (1) every person is qualified to be a witness, and (2) no person has a privilege to refuse to be a witness, and (3) no person is disqualified to testify to any matter, and (4) no person has a privilege to refuse to disclose any matter or to produce any object or writing, and (5) no person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any object or writing, and (6) all relevant evidence is admissible.

§ 2738. Preliminary inquiry by judge

When the qualification of a person to be a witness, or the admissibility of evidence, or the existence of a privilege is stated in this chapter to be subject to a condition, and the fulfillment of the condition is in issue, the issue is to be determined by the judge, and he shall indicate to the parties which one has the burden of producing evidence and the burden of proof on such issue as implied by the section under which the question arises. The judge may hear and determine such matters out

of the presence or hearing of the jury, except that on the admissibility of a confession the judge, if requested, shall hear and determine the question out of the presence and hearing of the jury. But this section shall not be construed to limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

Subchapter II-Judicial Notice

§ 2761. Facts which must or may be judicially noticed

(a) Judicial notice shall be taken without request by a party, of the common law, constitutions and public statutes in force in every state, territory and jurisdiction of the United States, and of such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute.

(b) Judicial notice may be taken without request by a party, of (1) private acts and resolutions of the Congress of the United States, and duly enacted ordinances and duly published regulations of any agency of the United States, and (2) the laws of foreign countries, and (3) such facts as are so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute, and (4) specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.

(c) Judicial notice shall be taken of each matter specified in paragraph (b) of this section if a party requests it and (1) furnishes the judge sufficient information to enable him properly to comply with the request and (2) has given each adverse party such notice as the judge may require to enable the adverse party to prepare to meet the request.

§ 2762. Determination as to propriety of judicial notice and tenor of matter noticed

(a) The judge shall afford each party reasonable opportunity to present to him information relevant to the propriety of taking judicial notice of a matter or to the tenor of the matter to be noticed.

(b) In determining the propriety of taking judicial notice of a matter or the tenor thereof, (1) the judge may consult and use any source of pertinent information, whether or not furnished by a party, and (2) no exclusionary rule except a valid claim of privilege shall apply.

(c) If the information possessed by or readily available to the judge, whether or not furnished by the parties, fails to convince him that a matter falls clearly within section 2761 of this title, or if it is insufficient to enable him to notice the matter judicially, he shall decline to take judicial notice thereof.

(d) In any event the determination either by judicial notice or from evidence of the applicability and the tenor of any matter of common law, constitutional law, or of any statute, private act, resolution, ordinance or regulation falling within section 2761 of this title, is a matter for the judge and not for the jury.

§ 2763. Instructing the trier of fact as to matter judicially noticed

If a matter judicially noticed is other than the common law or constitution or public statutes of the United States, the judge shall indicate for the record the matter which is judicially noticed and if the matter would otherwise have been for determination by a trier of fact other than the judge, he shall instruct the trier of the fact to accept as a fact the matter so noticed.

§ 2764. Judicial notice in proceedings subsequent to trial

(a) The failure or refusal of the judge to take judicial notice of a matter, or to instruct the trier of fact with respect to the matter, shall not preclude the judge from taking judicial notice of the matter in subsequent proceedings in the action.

(b) The rulings of the judge pursuant to sections 2761, 2762, and 2763 of this title are subject to review.

(c) The reviewing court in its discretion may take judicial notice of any matter specified by section 2761 of this title whether or not judicially noticed by the judge.

(d) A judge or a reviewing court taking judicial notice under paragraph (a) or (c) of this section of matter not theretofore so noticed in the action shall afford the parties reasonable opportunity to present information relevant to the propriety of taking such judicial notice and to the tenor of the matter to be noticed.

Subchapter III-Presumptions

§ 2791. Definition

A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action.

§ 2792. Effect of presumptions

Subject to section 2794 of this title, and except for presumptions which are conclusive or irrefutable under the rules of law from which they arise, (1) if the facts from which the presumption is derived have any probative value as evidence of the existence of the presumed fact, the presumption continues to exist and the burden of establishing the non-existence of the presumed fact is upon the party against whom the presumption operates, (2) if the facts from which the presumption arises have no probative value as evidence of the presumed fact, the presumption does not exist when evidence is introduced which would support a finding of the non-existence of the presumed fact, and the fact which would otherwise be presumed shall be determined from the evidence exactly as if no presumption was or had ever been involved.

§ 2793. Inconsistent presumptions

If two presumptions arise which are conflicting with each other the judge shall apply the presumption which is founded on the weightier considerations of policy and logic. If there is no such preponderance both presumptions shall be disregarded.

§ 2794. Burden of proof not relaxed as to some presumptions

A presumption, which by a rule of law may be overcome only by proof beyond a reasonable doubt, or by clear and convincing evidence, shall not be affected by section 2792 or 2793 of this title and the burden of proof to overcome it continues on the party against whom the presumption operates.

Subchapter IV-Witnesses

§ 2821. Disqualification of witness; interpreters

A person is disqualified to be a witness if the judge finds that (1) the proposed witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him, or (2) the proposed witness is incapable of understanding the duty of a witness to tell the truth. An interpreter is subject to all the provi sions of this chapter relating to witnesses.