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Review of the Utah Rules of Evidence for courtrooms and depositions.

101 - Scope

These rules govern proceedings in the courts of this State, to the extent and with the exceptions stated in Rule 1101.

102 - Purpose and construction

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

103(a) - Rulings on Evidence

(a) 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

(1) 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

(2) 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. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

103(b) - Rulings on Evidence

(b) 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.

103(c) - Rulings on Evidence

(c) 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.

103(d) - Rulings on Evidence

(d) 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.

104(a) - Preliminary questions

(a) 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 it is not bound by the rules of evidence except those with respect to privileges.

104(b) - Preliminary questions

(b) 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.

104(c) - Preliminary questions

(c) 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.

104(d) - Preliminary questions

(d) 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.

104(e) - Preliminary questions

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

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.

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.

201(a) - Judicial notice of adjudicative facts

(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.

201(b) - Judicial notice of adjudicative facts

(b) 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.

201(c) - Judicial notice of adjudicative facts

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

201(d) - Judicial notice of adjudicative facts

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

201(e) - Judicial notice of adjudicative facts

(e) 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.

201(f) - Judicial notice of adjudicative facts

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

201(g) - Judicial notice of adjudicative facts

(g) 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.

301(a) - Presumptions in general

(a) Effect. In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

301(b) - Presumptions in general

(b) Inconsistent presumptions. If presumptions are inconsistent, the presumption applies that is founded upon weightier considerations of policy. If considerations of policy are of equal weight neither presumption applies.

302 - Applicability of Federal Law

In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which federal law supplies the rule of decision is determined in accordance with federal law.

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.

402 - Admissibility of Ir/Relevant Evidence

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States or the Constitution of the state of Utah, statute, or by these rules, or by other rules applicable in courts of this state. Evidence which is not relevant is not admissible.

403 - Exclusion: prejudice, confusion, 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.

404(a) - Inadmissible character evidence

(a) 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:

(a)(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;

(a)(2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged 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 alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;

(a)(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

404(b) - Inadmissible character evidence

(b) 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 nature of any such evidence it intends to introduce at trial.

404(c) - Inadmissible character evidence

(c) Evidence of similar crimes in child molestation cases.

(c)(1) In a criminal case in which the accused is charged with child molestation, evidence of the commission of other acts of child molestation may be admissible to prove a propensity to commit the crime charged provided that 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 nature of any such evidence it intends to introduce at trial.

(c)(2) For purposes of this rule "child molestation" means an act committed in relation to a child under the age of 14 which would, if committed in this state, be a sexual offense or an attempt to commit a sexual offense.

(c)(3) Rule 404(c) does not limit the admissibility of evidence otherwise admissible under Rule 404(a), 404(b), or any other rule of evidence.

405(a) - Methods of proving character

(a) 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.

405(b) - Methods of proving character

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

406 - Habit

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.

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 event 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.

408 - Compromise, offers

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.

409(a) - Payment of expenses and apologies

(a) 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.

409(b) - Payment of expenses and apologies

(b) Evidence of unsworn statements, affirmations, gestures, or conduct made to a patient or a person associated with the patient by a defendant that expresses the following is not admissible in a malpractice action against a health care provider or an employee of a health care provider to prove liability for an injury:

(1) apology, sympathy, commiseration, condolence, compassion, or general sense of benevolence; or

(2) a description of the sequence of events relating to the unanticipated outcome of medical care or the significance of events.

410 - Inadmissibility of pleas

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 (i) 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 (ii) 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.

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.

412(a) - Sexual behavior

(a) Evidence generally inadmissible. The following evidence is not admissible in any criminal proceeding involving alleged sexual misconduct except as provided in paragraphs (b) and (c):
(1) evidence offered to prove that any alleged victim engaged in other sexual behavior; and
(2) evidence offered to prove any alleged victim's sexual predisposition.

412(b) - Sexual behavior

(b) Exceptions. 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 the 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:
(A) by the accused to prove consent; or
(B) by the prosecution; and
(3) evidence the exclusion of which would violate the constitutional rights of the defendant.

412(c) - Sexual behavior

(c) Procedure to determine admissibility.
(1) A party intending to offer evidence under paragraph (b) must:
(A) 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
(B) serve the motion on all parties. The prosecutor shall timely 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 alleged 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.

416 - Traffic violations

Evidence that a person was convicted under a provision of Utah Code Annotated Title 41, Chapter 6a, of an infraction or class C misdemeanor is not admissible on the issue of whether the person acted negligently or otherwise wrongly, or to impeach the person's testimony on those issues.

501 - Privileges recognized

Except as provided in the Constitutions of the United States and the State of Utah, no person shall have a privilege to withhold evidence except as provided by these or other rules adopted by the Utah Supreme Court or by existing statutory provisions not in conflict with them.

502(a) - Husband-Wife

(a) Criminal proceedings. In a criminal proceeding, a wife shall not be compelled to testify against her husband, nor a husband against his wife.

502(b)(1)-(3) - Husband-Wife

(b) Communications.
(1) Definition. A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person.
(2) General rule of privilege. An individual has a privilege during the person's life to refuse to testify or to prevent his or her spouse or former spouse from testifying as to any confidential communication made by the individual to the spouse during their marriage and to prevent another from disclosing any such confidential communication.
(3) Who may claim the privilege. The privilege may be claimed by the person who made the confidential communication, or by the person's guardian or conservator. The non-communicating spouse to whom the confidential communication was made is presumed to be authorized, during the life of the communicating spouse, to claim the privilege on behalf of the person who made the confidential communication.

502(b)(4)(A) - Husband-Wife (Communications - Exceptions)

(4) Exceptions. No privilege exists under subparagraph (b) of this rule:
(A) Spouses as adverse parties. In any civil proceeding in which the spouses are adverse parties;

502(b)(4)(B) - Husband-Wife (Communications - Exceptions)

(4) Exceptions. No privilege exists under subparagraph (b) of this rule: (B) Furtherance of crime or tort. As to any communication which was made, in whole or in part, to enable or aid anyone
(i) to commit,
(ii) to plan to commit, or
(iii) to conceal a crime or a tort;

502(b)(4)(C) - Husband-Wife (Communications - Exceptions)

(4) Exceptions. No privilege exists under subparagraph (b) of this rule: (C) Spouse charged with crime or tort. In a proceeding in which one spouse is charged with a crime or a tort against the person or property of
(i) the other,
(ii) a child of either,
(iii) a person residing in the household of either, or
(iv) a third person if the crime or tort is committed in the course of committing a crime or tort against any of the persons previously named;

502(b)(4)(D) - Husband-Wife (Communications - Exceptions)

(4) Exceptions. No privilege exists under subparagraph (b) of this rule: (D) Interests of minor child. The court may refuse to allow invocation of the privilege in any other proceeding if the interests of a minor child of either spouse may be adversely affected.

503(a) - Clergy

(a) Definitions. As used in this rule:
(1) A "cleric" is a minister, priest, rabbi, or other similar functionary of a religious organization or an individual reasonably believed so to be by the person consulting that individual.
(2) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

503(b) - Clergy

(b) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing any confidential communication to a cleric in the cleric's religious capacity and necessary and proper to enable the cleric to discharge the functions of the cleric's office according to the usual course of practice or discipline.

503(c) - Clergy

(c) Who may claim the privilege. The privilege may be claimed by the person who made the confidential communication, by the person's guardian or conservator, or by the person's personal representative if the person is deceased. The person who was the cleric at the time of the communication is presumed to have authority to claim the privilege on behalf of the communicant.

503(a) - Lawyer-Client

(a) Definitions. As used in this rule:
(1) A "client" is a person, including a public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services.
(2) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.
(3) A "representative of the lawyer" is one employed to assist the lawyer in a rendition of professional legal services.
(4) A "representative of the client" is one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client, or one specifically authorized to communicate with the lawyer concerning a legal matter.
(5) A "communication" includes advice given by the lawyer in the course of representing the client and includes disclosures of the client and the client's representatives to the lawyer or the lawyer's representative incidental to the professional relationship.
(6) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

503(b) - Lawyer-Client

(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client between the client and the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest, and among the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest, in any combination.

503(c) - Lawyer-Client

(c) Who may claim the privilege. The privilege may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer at the time of the communication is presumed to have authority to claim the privilege on behalf of the client.

503(d) - Lawyer-Client

(d) Exceptions. No privilege exists under this rule:
(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or
(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or
(3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer; or
(4) Document attested by lawyer. As to a communication relevant to an issue concerning a document to which the lawyer is an attesting witness; or
(5) Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

505(a) - Government Informer

(a) Definitions. As used in this rule:
(1) "Government" means the government of the United States, of any state, or of any subdivision of any state.
(2) "Informer" means any person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer.
(3) "Law enforcement officer" includes peace officers, prosecutors, a member of a legislative committee or its staff conducting an investigation and a member of a regulatory agency or its staff conducting an investigation.

505(b)-(d) - Government Informer

(b) General rule of privilege. The government has a privilege to refuse to disclose the identity of an informer.
(c) Who may claim the privilege. The privilege may be claimed by counsel for the government or in the absence of counsel by another appropriate representative, regardless of whether the information was furnished to an officer of the United States government or a state or a subdivision thereof.
(d) Exceptions: voluntary disclosure; informer as witness. No privilege exists under this rule if the identity of the informer or the informer's interest in the subject matter of the informer's communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the government.

505(d)(1) - Government Informer

(1) Testimony on merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case or of a material issue on the merits of a civil case whether or not the government is a party, and the government invokes a privilege, the judge may give the government an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply the testimony. The judge may make such orders respecting the procedures to be followed as are consistent with the spirit and purpose of this rule. If the judge finds there is reasonable probability that the informer can give the testimony, and the government elects not to disclose the informer's identity, the judge, on motion of the defendant in a criminal case, shall dismiss the charges to which the testimony would relate, and the judge may do so on the judge's own motion. In civil cases, the judge may make any order that justice requires. Evidence submitted to the judge may be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the government. All counsel and parties shall be permitted to be present at every stage of the proceedings under this subparagraph, except a showing in camera at which no counsel or party shall be permitted to be present.

505(d)(2) - Government Informer

(2) Legality of obtained evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the party attacking the legality of obtaining the evidence makes a substantial preliminary showing that the law enforcement officer intentionally or knowingly or with reckless disregard for truth falsely swore that the information was received from an informer reasonably believed to be reliable or credible and that probable cause does not exist absent the information furnished by the informer, the judge may require the identity of the informer to be disclosed. The judge shall, on request of the government, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of the proceeding under this subparagraph, except a disclosure in camera, at which no counsel or parties shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the government.

506(a) - Doctors

(a) Definitions. As used in this rule:
(1) "Patient" means a person who consults or is examined or interviewed by a physician or mental health therapist.
(2) "Physician" means a person licensed, or reasonably believed by the patient to be licensed, to practice medicine in any state.
(3) "Mental health therapist" means a person who is or is reasonably believed by the patient to be licensed or certified in any state as a physician, psychologist, clinical or certified social worker, marriage and family therapist, advanced practice registered nurse designated as a registered psychiatric mental health nurse specialist, or professional counselor while that person is engaged in the diagnosis or treatment of a mental or emotional condition, including alcohol or drug addition.

506(b) - Doctors

(b) General rule of privilege. If the information is communicated in confidence and for the purpose of diagnosing or treating the patient, a patient has a privilege, during the patient's life, to refuse to disclose and to prevent any other person from disclosing (1) diagnoses made, treatment provided, or advice given, by a physician or mental health therapist, (2) information obtained by examination of the patient, and (3) information transmitted among a patient, a physician or mental health therapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or mental health therapist, including guardians or members of the patient's family who are present to further the interest of the patient because they are reasonably necessary for the transmission of the communications, or participation in the diagnosis and treatment under the direction of the physician or mental health therapist.

506(c) - Doctors

(c) Who may claim the privilege. The privilege may be claimed by the patient, or the guardian or conservator of the patient. The person who was the physician or mental health therapist at the time of the communication is presumed to have authority during the life of the patient to claim the privilege on behalf of the patient.

506(d) - Doctors

(d) Exceptions. No privilege exists under this rule:
(1) Condition as element of claim or defense. As to a communication relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which that condition is an element of any claim or defense, or, after the patient's death, in any proceedings in which any party relies upon the condition as an element of the claim or defense;
(2) Hospitalization for mental illness. For communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the mental health therapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization;
(3) Court ordered examination. For communications made in the course of, and pertinent to the purpose of, a court-ordered examination of the physical, mental, or emotional condition of a patient, whether a party or witness, unless the court in ordering the examination specifies otherwise.

507(a) - Privileges misc.

(a) A person upon whom these rules confer a privilege against disclosure of the confidential matter or communication waives the privilege if the person or a predecessor while holder of the privilege voluntarily discloses or consents to the disclosure of any significant part of the matter or communication, or fails to take reasonable precautions against inadvertent disclosure. This rule does not apply if the disclosure is itself a privileged communication.

507(b) - Privileges misc.

(b) Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if disclosure was
(1) compelled erroneously or
(2) made without opportunity to claim the privilege.

507(c) - Privileges misc.

(c) (1) Comment or inference not permitted. The claim of privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.
(2) Claiming privilege without knowledge of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.
(3) Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from the claim of privilege is entitled to instruction that no inference may be drawn therefrom.
(4) Exception. In a civil action, the provisions of subparagraph (c) do not apply when the privilege against self-incrimination has been invoked.

508(a)(1)-(4) - Self-Evaluation

(a) Definitions. As used in this rule:
(1) "Administrative proceeding" means an adjudicatory proceeding conducted by the department or other government entity with authority to enforce any environmental law, including any notice of violation proceeding, any department proceeding listed in Section 19-1-305, or any proceeding conducted pursuant to Title 63, Chapter 46b, Utah Code Ann. (1953) Administrative Procedures Act.
(2) "Department" means the Department of Environmental Quality.
(3) "Environmental audit report" means any document, information, report, finding, communication, note drawing, graph, chart, photograph, survey, suggestion, or opinion, whether in preliminary, draft, or final form, prepared as the result of or in response to an environmental self-evaluation.
(4) "Environmental law" means any requirement contained in Title 19 Utah Code Ann. (1953), or in rules made under Title 19 Utah Code Ann. (1953), or in any rules, orders, permits, licenses, or closure plans issued or approved by the department, or in any other provision or ordinance addressing protection of the environment.

508(a)(5)-(7) - Self-Evaluation

(a) Definitions. As used in this rule: (5) "Environmental self-evaluation" means a self-initiated assessment, audit, or review, not otherwise expressly required by an environmental law, that is performed to determine whether a person is in compliance with environmental laws. A person may perform an environmental self-evaluation through the use of employees or the use of outside consultants.
(6) "In camera review" means a confidential review in which only the court has access to the privileged information.
(7) "Judicial proceeding" means a civil proceeding.

508(b) - Self-Evaluation

(b) General rule of privilege. A person for whom an environmental self-evaluation is conducted or for whom an environmental audit report is prepared can refuse to disclose and prevent any other person from disclosing an environmental audit report. However, the existence of an environmental audit report, but not its content, is subject to discovery but is not admissible as evidence in an administrative or judicial proceeding. Use of an environmental audit report in a criminal proceeding does not waive or eliminate the privilege in an administrative or civil proceeding.

508(c) - Self-Evaluation

(c) Who may claim the privilege. The privilege may be claimed by the person for whom an environmental self-evaluation is conducted or for whom an environmental audit report is prepared. The privilege may also be claimed by such person's guardian, conservator, personal representative, trustee, or successor in interest. Regardless of who prepared the environmental audit report, only the person for whom the environmental audit report was prepared can waive the environmental self-evaluation privilege under this rule. If the person is a corporation, company, or other business entity, the power to waive the privilege is limited to the officers and directors who have the requisite management authority to act for the entity.

508(d)(1)-(4) - Self-Evaluation

(d) Exceptions. No privilege exists under this rule:
(1) Waiver. If the person for whom the audit report was prepared expressly waives the privilege;
(2) Fraud. If the privilege is being asserted for a fraudulent purpose;
(3) Avoidance. If the environmental audit report was prepared to avoid disclosure of information in a compliance investigation or proceeding that was already underway and known to the person asserting the privilege;
(4) Danger to public health or environment. If the information contained in the environmental audit report must be disclosed to avoid a clear and impending danger to public health or the environment outside of the facility property;

508(d)(5)-(8) - Self-Evaluation

(d) Exceptions. No privilege exists under this rule: (5) Failure to address noncompliance. If the environmental audit report conclusively shows that the person for whom the environmental audit report was prepared is not or was not in compliance with an environmental law and after the environmental audit report the person did not initiate appropriate efforts to achieve compliance with the environmental law within a reasonable amount of time. If an environmental audit report shows noncompliance with more than one environmental law, or if the noncompliance will require substantial resources to achieve compliance, the person may demonstrate that appropriate efforts to achieve compliance were or are being taken by instituting a comprehensive program that establishes a phased schedule of actions to be taken to bring the person into compliance within a reasonable amount of time;
(6) Required by law. If the document or information is specifically required to be available or furnished to a regulatory agency by any environmental law or any other law or rule;
(7) Obtained by department. If the information is obtained by the department through observation, sampling, or monitoring;
(8) Independent source. If the information is obtained through any source independent of the voluntary environmental self-evaluation.

508(e) - Self-Evaluation

(e) In camera review.
(1) The person seeking disclosure of an environmental audit report shall request an in camera review of the audit report by a court of record.
(2) During in camera review, the party seeking disclosure of the environmental audit report may not have access to the environmental audit report.
(3) (A) If the court of record determines that part of an environmental audit report is not privileged, the court shall order the disclosure of the nonprivileged portions of the environmental audit report.
(B) The privileged portions of the environmental audit report may not be disclosed.

508(f) - Self-Evaluation

(f) Burden of proof. The person asserting the environmental self-evaluation privilege has the burden of establishing a prima facie case of privilege. The person seeking disclosure of an environmental audit report has the burden of proving that the environmental audit report is not privileged.

508(g) - Self-Evaluation

(g) Other privileges not affected. Nothing in this rule:
(1) limits, waives, or abrogates the scope or nature of any other statutory or common law privilege; or
(2) limits, waives, or abrogates the department's authority to obtain or use documents or information that the department is required to have under federal law to obtain delegation of a federal program.

508(h) - Self-Evaluation

(h) Scope of rule. This rule shall apply to all administrative and judicial proceedings commenced on or after March 21, 1995.

509(a) - News Reporters

(a) Definitions. As used in this rule:

(a)(1)"News reporter" means a publisher, editor, reporter or other similar person gathering information for the primary purpose of disseminating news to the public and any newspaper, magazine, or other periodical publication, press association or wire service, radio station, television station, satellite broadcast, cable system or other organization with whom that person is connected.

(a)(2)"Confidential source information" means the name or any other information likely to lead directly to the disclosure of the identity of a person who gives information to a news reporter with a reasonable expectation of confidentiality.

(a)(3)"Confidential unpublished news information" means information, other than confidential source information, that is gathered by a news reporter on condition of confidentiality. This includes notes, outtakes, photographs, tapes or other data that are maintained by the news reporter or by the organization or entity on whose behalf the reporter was acting to the extent such records include information that was provided on condition of confidentiality.

(a)(4) "Other unpublished news information" means information, other than confidential unpublished news information, that is gathered by a news reporter. This includes notes, outtakes, photographs, tapes or other data that are maintained by the news reporter or by the organization or entity on whose behalf the reporter was acting.

509(b)-(d) - News Reporters

(b) Privilege for Confidential Source Information. A news reporter or confidential source has a privilege to refuse to disclose and to prevent any other person from disclosing confidential source information, unless the person seeking the information demonstrates by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death.

(c) Privilege for Confidential Unpublished News Information. A news reporter has a privilege to refuse to disclose confidential unpublished news information, unless the person seeking such information demonstrates a need for that information which substantially outweighs the interest of a continued free flow of information to news reporters.

(d) Privilege for other Unpublished News Information. A news reporter has a privilege to refuse to disclose other unpublished news information if the person claiming the privilege demonstrates that the interest of a continued free flow of information to news reporters outweighs the need for disclosure.

509(e) - News Reporters

(e) Who may Claim. The privileges set forth in this rule may, as applicable, be claimed by the news reporter, the organization or entity on whose behalf the news reporter was acting, the confidential source, the news reporter or confidential source's guardian or conservator or the personal representative of a deceased news reporter or confidential source.

509(f) - News Reporters

(f) In Camera Review. Once the court makes an initial determination that information which is claimed to be privileged under this rule should be disclosed, the court shall conduct an in camera review of that information before making a final determination requiring disclosure.

601(a) - General Rule of Competency

(a) General rule of competency. Every person is competent to be a witness except as otherwise provided in these rules.

601(b) - General Rule of Competency (decedent)

(b) Statement of declarant in action for declarant's wrongful death. Evidence of a statement by the deceased is not made inadmissible by the hearsay rule if offered against the plaintiff in an action for wrongful death.

601(c) - General Rule of Competency (decedent)

(c) Statement of deceased declarant offered in action against declarant's estate.
(1) Evidence of a statement is not made inadmissible by the hearsay rule when offered in an action upon a claim or demand against the estate of the declarant if the statement was made upon the personal knowledge of the declarant at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear.
(2) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.

602 - Lack of personal knowledge

A witness may not testify 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.

603 - Oath or affirmation

Before testifying, every witness shall be required to declare that the witness will testify 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.

604 - Interpreters

An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.

605 - Judge as witness

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

606(a) - Juror as witness

(a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

606(b) - Juror as witness

(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

607 - Who may impeach

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

608(a) - Character and Conduct

(a) 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.

608(b) - Character and Conduct

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, 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 that relate only to character for truthfulness.

608(c) - Character and Conduct

(c) Evidence of bias. Bias, prejudice or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced.

609(a) - Impeachment by conviction of crime

(a) General rule. For the purpose of attacking the credibility of a witness,
(1) evidence that a witness other than the 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.

609(b) - Impeachment by conviction of crime

(b) 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 ten 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.

609(c) - Impeachment by conviction of crime

(c) 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.

609(d) - Impeachment by conviction of crime

(d) Juvenile adjudications. Evidence of juvenile adjudications 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.

609(e) - Impeachment by conviction of crime

(e) 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.

610 - Religious beliefs/opinions

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.

611(a) - Mode and order of interrogation

(a) 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.

611(b) - Mode and order of interrogation

(b) 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.

611(c) - Mode and order of interrogation

(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be 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

612 - Refreshing memory

If a witness uses a writing to refresh the witness' 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.

613(a) - Prior statements

(a) 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.

613(b) - Prior statements

(b) Extrinsic evidence of prior inconsistent statement of witness. 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).

614 - Calling and interrogation of witnesses by court

(a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.
(c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

615(1) - Exclusion of Witnesses

(1) 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 on its own motion. This rule does not authorize exclusion of:

(a) a party who is a natural person;

(b) an officer or employee of a party which is not a natural person designated as its representative by its attorney;

(c) a person whose presence is shown by a party to be essential to the presentation of the party's cause;

(d) a victim in a criminal or juvenile delinquency proceeding where the prosecutor agrees with the victim's presence; or

(e) a victim counselor while the victim is present unless the defendant establishes that the counselor is a material witness in that criminal or juvenile delinquency proceeding.

615(2)-(4) - Exclusion of Witnesses

(2) The court may exclude or excuse a victim from the courtroom if the victim becomes disruptive.

(3) A victim in a criminal or juvenile delinquency proceeding who elects to be present in the courtroom may not be prevented from testifying, even after being present and having heard other testimony.

(4) As used in this rule, "victim counselor":

(a) means a person who is present in the courtroom to assist the victim and is employed by or volunteers at any office, institution, or center assisting victims of crimes and their families which offers crisis intervention or support, medical or legal services, or counseling; and

(b) includes a "sexual assault counselor" as defined in Section 78-3c-3, Utah Code Annotated.

701 - Opinion testimony by lay witnesses

...

702(a) - Testimony by experts

(a) Subject to the limitations in subsection (b), 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 testify thereto in the form of an opinion or otherwise.

702(b) - Testimony by experts

(b) Scientific, technical, or other specialized knowledge may serve as the basis for expert testimony if the scientific, technical, or other principles or methods underlying the testimony meet a threshold showing that they (i) are reliable, (ii) are based upon sufficient facts or data, and (iii) have been reliably applied to the facts of the case.

702(c) - Testimony by experts

(c) The threshold showing required by subparagraph (b) is satisfied if the principles or methods on which such knowledge is based, including the sufficiency of facts or data and the manner of their application to the facts of the case, are generally accepted by the relevant expert community.

703 - Bases of expert opinions

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 reasonably 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 in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

704 - Expert opinion on ultimate issue

(a) Except as provided in subparagraph (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.
(b) 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.

705 - Disclosure of facts/data

The expert may testify in terms of opinion or inference and give reasons therefor without prior disclosure of 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.

706(a) - Court-appointed experts

(a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

706(b)-(d) - Court-appointed experts

(b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compesation under the Fifth Amendment. In other civil actions and proceedings the compesation shall be paid by the parties in such proportion and at such time as the court direct, and thereafter charged in like manner as other costs.
(c) Disclosure of appointment. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.
(d) Parties' experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection.

801(a)-(c) - Hearsay definitions

(a) 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.
(b) Declarant. A "declarant" is a person who makes a statement.
(c) 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.

801(d) - Hearsay definitions

(d) 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 (A) inconsistent with the declarant's testimony or the witness denies having made the statement or has forgotten, or (B) 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 motive, or (C) 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 (A) the party's own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

802 - Hearsay rule

Hearsay is not admissible except as provided by law or by these rules.

803(1) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.

803(2) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

803(3) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

803(4) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

803(5) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

803(6) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

803(7) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of Paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

803(8) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(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, or (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 and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

803(9) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

803(10) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

803(11) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(11) Records of religious organization. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

803(12) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

803(13) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

803(14) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

803(15) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

803(16) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

803(17) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

803(18) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

803(19) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(19) Reputation concerning personal or family history. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

803(20) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(20) Reputation concerning boundaries or general history. Reputation in a community arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

803(21) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(21) Reputation as to character. Reputation of a person's character among associates or in the community.

803(22) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the prosecution in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

803(23) - Hearsay Exceptions

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:(23) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

804(a) - Declarant unavailable

(a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant:

(a)(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or

(a)(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or

(a)(3) testifies to a lack of memory of the subject matter of the declarant's statement; or

(a)(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(a)(5) is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance by process or other reasonable means.

A declarant is not unavailable as a witness if the exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of the declarant's statement for the purpose of preventing the witness from attending or testifying.

804(b) - Declarant unavailable

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(b)(1) 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.

(b)(2) Statement under belief of impending death. In a civil or criminal action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, if the judge finds it was made in good faith.

(b)(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(b)(4) Statement of personal or family history. (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

805 - Hearsay within hearsay

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

806 - Attacking/supporting credibility of declarant

When a hearsay statement, or a statement defined in Rule 801(d)(2), (C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

807 - Other exceptions

A statement not specifically covered by Rule 803 or Rule 804 but having equivalent circumstantial guarantees of trustworthiness is not excluded by the hearsay rule if the court determines that (A) the 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 which the proponent can procure through reasonable efforts; and (C) the general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

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