Federal Rules of Evidence – Rule 402
(through July 14, 2022)
Irrelevant evidence is inadmissible.
Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court.
Irrelevant evidence is not admissible.
Selected Committee Notes
The provisions that all relevant evidence is admissible, with certain exceptions, and that evidence which is not relevant is not admissible are “a presupposition involved in the very conception of a rational system of evidence.” Thayer, Preliminary Treatise on Evidence 264 (1898). They constitute the foundation upon which the structure of admission and exclusion rests. For similar provisions see California Evidence Code §§350, 351. Provisions that all relevant evidence is admissible are found in Uniform Rule 7(f); Kansas Code of Civil Procedure §60–407(f); and New Jersey Evidence Rule 7(f); but the exclusion of evidence which is not relevant is left to implication.
Not all relevant evidence is admissible. The exclusion of relevant evidence occurs in a variety of situations and may be called for by these rules, by the Rules of Civil and Criminal Procedure, by Bankruptcy Rules, by Act of Congress, or by constitutional considerations.
Succeeding rules in the present article, in response to the demands of particular policies, require the exclusion of evidence despite its relevancy. In addition, Article V recognizes a number of privileges; Article VI imposes limitations upon witnesses and the manner of dealing with them; Article VII specifies requirements with respect to opinions and expert testimony; Article VIII excludes hearsay not falling within an exception; Article IX spells out the handling of authentication and identification; and Article X restricts the manner of proving the contents of writings and recordings.
The Rules of Civil and Criminal Procedure in some instances require the exclusion of relevant evidence. For example, Rules 30(b) and 32(a)(3) of the Rules of Civil Procedure, by imposing requirements of notice and unavailability of the deponent, place limits on the use of relevant depositions. Similarly, Rule 15 of the Rules of Criminal Procedure restricts the use of depositions in criminal cases, even though relevant. And the effective enforcement of the command, originally statutory and now found in Rule 5(a) of the Rules of Criminal Procedure, that an arrested person be taken without unnecessary delay before a commissioner of other similar officer is held to require the exclusion of statements elicited during detention in violation thereof. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); 18 U.S.C. §3501(c).
While congressional enactments in the field of evidence have generally tended to expand admissibility beyond the scope of the common law rules, in some particular situations they have restricted the admissibility of relevant evidence. Most of this legislation has consisted of the formulation of a privilege or of a prohibition against disclosure. 8 U.S.C. §1202(f), records of refusal of visas or permits to enter United States confidential, subject to discretion of Secretary of State to make available to court upon certification of need; 10 U.S.C. §3693, replacement certificate of honorable discharge from Army not admissible in evidence; 10 U.S.C. §8693, same as to Air Force; 11 U.S.C. §25(a) (10), testimony given by bankrupt on his examination not admissible in criminal proceedings against him, except that given in hearing upon objection to discharge; 11 U.S.C. §205(a), railroad reorganization petition, if dismissed, not admissible in evidence; 11 U.S.C. §403(a), list of creditors filed with municipal composition plan not an admission; 13 U.S.C. §9(a), census information confidential, retained copies of reports privileged; 47 U.S.C. §605, interception and divulgence of wire or radio communications prohibited unless authorized by sender. These statutory provisions would remain undisturbed by the rules.
The rule recognizes but makes no attempt to spell out the constitutional considerations which impose basic limitations upon the admissibility of relevant evidence. Examples are evidence obtained by unlawful search and seizure, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); incriminating statement elicited from an accused in violation of right to counsel, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
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Key Rules (MBE/MEE)
- FRE 103 – Evidence Rulings
- FRE 104 – Preliminary Questions
- FRE 105 – Limiting How Evidence may be Used
- FRE 106 – Completeness Rule
- FRE 201 – Judicial Notice
- FRE 301 – Presumptions
- FRE 401 – Relevance
- FRE 402 – Irrelevant = Inadmissible
- FRE 403 – Excluding the Prejudicial, Confusing, etc.
- FRE 404 – Character Evidence
- FRE 405 – Proving Character
- FRE 406 – Habit, Routine
- FRE 407 – Subsequent Remedial Measures
- FRE 408 – Compromise Negotiations
- FRE 409 – Offers to Pay Expenses
- FRE 410 – Pleas, Related Statements
- FRE 411 – Liability Insurance
- FRE 412 – Victim’s Sexual Predisposition
- FRE 413, 414, 415 – Other Sex-Related Rules
- FRE 501 – Privilege in General
- FRE 502 – Attorney-Client Privilege, Work-Product Doctrine
- FRE 601 – Witness Competency
- FRE 602 – Personal Knowledge
- FRE 605 – Judge as Witness
- FRE 606 – Juror as Witness
- FRE 607 – Impeachment
- FRE 608 – Honest, Dishonest Character
- FRE 609 – Evidence of Criminal Conviction
- FRE 610 – Religious Beliefs
- FRE 611 – Mode, Order of Evidence
- FRE 612 – Recollection Refreshed
- FRE 613 – Prior Statements
- FRE 614 – Court Witness Examination
- FRE 615 – Excluding Witnesses
- FRE 701 – Non-Expert Opinion
- FRE 702 – Expert Opinion
- FRE 703 – Bases of Expert Opinion
- FRE 704 – Ultimate Issue
- FRE 705 – Disclosing Underlying Data
- FRE 801 – Hearsay Defined
- FRE 802 – Rule Against Hearsay
- FRE 803 – Strong Hearsay Exceptions
- FRE 804 – Weak Hearsay Exceptions
- FRE 805 – Double Hearsay
- FRE 806 – Impeaching Hearsay Declarants
- FRE 807 – Residual Hearsay Exception
- FRE 901 – Authentication, Identification
- FRE 902 – Self-Authenticating Evidence
- FRE 1001 – Original Defined
- FRE 1002 – Original Sometimes Required
- FRE 1003 – When Copies Generally Admissible
- FRE 1004 – Other Times Admissible
- FRE 1005 – Public Record Copies Often Admissible
- FRE 1006 – Summaries
- FRE 1007 – Acknowledged Content
- FRE 1008 – Functions of Court, Jury
- FRE 1101 – Rules’ Applicability