Presentation of evidence - Proceedings to which evidence rul...

Learning Outcomes

This article explains how the Federal Rules of Evidence govern the presentation of evidence across federal proceedings and exam-style hypotheticals, including:

• Determining whether the FRE apply in a given federal forum (district court, appellate court, bankruptcy, magistrate judge) and type of case.
• Recognizing excluded proceedings—grand jury, sentencing, bail, preliminary examinations, and Rule 104(a) hearings—and articulating why the rules (other than privilege) do not govern there.
• Distinguishing the respective functions of judge and jury in screening, admitting, and weighing evidence, and how that affects objections and offers of proof.
• Applying the correct evidentiary framework to MBE-style civil and criminal questions, with emphasis on common traps involving suppression hearings and grand jury practice.
• Explaining how privilege rules operate uniformly across covered and excluded proceedings, and selecting the correct privilege law in diversity cases.
• Comparing federal and state evidence regimes, especially in diversity jurisdiction, and identifying when state privilege, competency, or presumption rules control.
• Evaluating whether evidentiary mistakes are reviewable on appeal under the FRE and the plain-error doctrine, as distinct from purely constitutional violations.

MBE Syllabus

For the MBE, you are required to understand the scope of the Federal Rules of Evidence and the proceedings to which they apply, with a focus on the following syllabus points:

• Which federal courts and types of cases are governed by the FRE
• Identification of excluded proceedings (e.g., grand jury, sentencing, bail, certain preliminary determinations)
• The special treatment of preliminary questions decided by the judge
• The continued application of privilege rules even in excluded proceedings
• The relationship between the FRE and state evidence law in federal diversity cases
• Common exam traps involving grand jury practice, suppression hearings, and sentencing

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. In which of the following proceedings do the Federal Rules of Evidence apply?
   1. Grand jury proceedings
   2. Criminal jury trials
   3. Sentencing hearings
   4. Bail hearings
2. Which is NOT an exception to the application of the Federal Rules of Evidence?
   1. Preliminary determination of admissibility by the judge
   2. Civil jury trial
   3. Sentencing in a criminal case
   4. Extradition hearing
3. If a party seeks to exclude evidence in a federal civil trial, which rules govern admissibility?
   1. State evidence rules
   2. Federal Rules of Evidence
   3. Local court custom
   4. Federal Rules of Civil Procedure

Introduction

The Federal Rules of Evidence do not govern every proceeding that happens in federal court. On the MBE, you are often told the type of proceeding but not explicitly told whether the FRE apply. Your first step should always be to identify the proceeding, because that determines whether you may invoke the evidence rules at all.

At a high level:

• The FRE do apply to ordinary civil and criminal cases tried in federal court.
• The FRE do not apply to certain ancillary or preliminary proceedings, such as grand jury proceedings and most sentencing hearings.
• Even when the FRE are inapplicable, privileges still apply.

Key Term: Federal Rules of Evidence
A codified set of rules that govern the admissibility and use of evidence in most federal civil and criminal cases and proceedings in federal courts.

On the exam, this topic sits at the intersection of Evidence and Criminal Procedure. Questions about grand jury practice, suppression hearings, and sentencing often test both constitutional doctrines (e.g., Fourth, Fifth, Sixth Amendments) and the scope of the FRE. You must keep those two layers distinct:

• The FRE tell you what evidence is admissible in covered proceedings.
• The Constitution limits what the government may do at all, including in proceedings where the FRE are inapplicable.

If you misidentify the proceeding, you will often be steered into a wrong answer choice that cites hearsay or character rules where they do not apply.

Scope of the Federal Rules of Evidence

The starting point is Federal Rules of Evidence 101 and 1101. Together, they state that the FRE apply in:

• United States district courts
• United States courts of appeals
• The Court of Federal Claims
• Federal bankruptcy and admiralty courts
• Proceedings before United States magistrate judges
• Other federal trial courts created by Congress where the rules have been made applicable

And, within those courts, the rules apply to:

• Civil cases and proceedings:
• Criminal cases and proceedings:
• Contempt proceedings, with one important exception for summary contempt (discussed below)

Key Term: Covered Proceedings
Proceedings in which the Federal Rules of Evidence apply, including federal civil and criminal cases and non-summary contempt proceedings in federal courts listed in FRE 101 and 1101.

For MBE purposes, these technical details are usually collapsed into a simpler formulation:

• If you are in a federal civil or criminal trial, assume the FRE apply unless the question explicitly places you in one of the listed excluded proceedings.

Remember also that the FRE apply not only at full trials, but generally at any evidentiary hearing in those courts that is not specifically carved out by FRE 1101(d). For example:

• A contested preliminary injunction hearing in a civil case
• A Daubert hearing on the admissibility of expert testimony
• A civil bench trial on damages after default

Unless the question tells you that the hearing falls into one of the express exceptions, treat it as a covered proceeding.

Proceedings Covered by the Evidence Rules

On the exam, the following kinds of proceedings should immediately trigger the conclusion that the FRE control admissibility:

• Civil jury trials and civil bench trials in federal district court

  • The rules apply regardless of whether the case is based on federal-question or diversity jurisdiction.
  • They apply equally to trials before an Article III judge and to trials conducted (with consent) by a magistrate judge.

• Criminal jury trials and criminal bench trials in federal district court

  • All the usual rules on relevance, character evidence, hearsay, impeachment, privileges, and expert testimony apply.

• Non-summary contempt proceedings:

  • When a court conducts an evidentiary hearing to determine whether to impose contempt sanctions (for example, for disobeying an injunction) and the alleged contemnor has a right to be heard, the FRE apply.

Key Term: Magistrate Judge
A federal judicial officer who can conduct certain proceedings, including evidentiary hearings and, with consent, civil trials; when presiding over covered proceedings, the magistrate applies the FRE just as a district judge would.

Within covered proceedings, the rules apply to:

• Trials to the court (bench trials) and trials to a jury
• Main-case presentation and any evidentiary disputes that occur during trial (sidebars, offers of proof, etc.)
• Depositions in civil cases, because the Federal Rules of Civil Procedure incorporate the FRE for deposition questioning

If you are told “At the defendant’s federal criminal trial…” or “In a civil action for negligence in federal district court…,” you should analyze admissibility under the FRE, not under state law or local custom.

Two other covered situations that can appear in questions are:

• Preliminary injunction hearings in federal civil cases
  These are not listed as exceptions in Rule 1101(d), so assume the FRE apply.
• Post-trial evidentiary hearings in the same case (e.g., a hearing on damages after a liability verdict)
  Again, unless placed in an exception, the ordinary rules of evidence govern.

Proceedings Excluded from the Evidence Rules

FRE 1101 also lists a number of proceedings where the rules (other than privileges) do not apply. These are heavily tested on the MBE and are common sources of traps.

The FRE do not apply to:

• Preliminary questions of fact decided by the judge under Rule 104(a)
• Grand jury proceedings:
• Certain miscellaneous proceedings, including:
  • Extradition and rendition hearings
  • Issuing an arrest warrant, criminal summons, or search warrant
  • Initial appearances
  • Bail and pretrial release or detention hearings
  • Preliminary examinations in criminal cases (probable-cause hearings)
  • Sentencing hearings
  • Probation and supervised release revocation hearings

Key Term: Excluded Proceedings
Proceedings in which most Federal Rules of Evidence do not apply, including grand jury proceedings, sentencing, bail, extradition, preliminary examinations, and judge-decided preliminary questions of admissibility.

The practical consequence: in these excluded proceedings, the judge may consider evidence that would be excluded at trial (e.g., hearsay, unauthenticated documents, lay opinions without evidentiary basis), subject to constitutional limits and basic fairness.

A reliable exam strategy is to memorize the short list of excluded proceedings. If the question goes out of its way to tell you:

• “At the defendant’s sentencing hearing…”
• “During grand jury proceedings…”
• “At a bail hearing…”

you should immediately consider that the FRE (other than privileges) are inapplicable.

Preliminary Questions for the Judge (Rule 104(a))

Many evidentiary issues are resolved before or outside the jury’s presence. Examples include:

• Whether a witness is competent
• Whether a privilege exists
• Whether a hearsay exception applies
• Whether a confession was voluntary
• Whether an expert is qualified

These preliminary determinations are governed by Rule 104(a).

Key Term: Preliminary Question
A preliminary issue—such as witness competency, existence of a privilege, or applicability of a hearsay exception—decided by the judge as a predicate to ruling on admissibility.

For these questions:

• The judge decides the facts relevant to admissibility.
• The judge is not bound by the FRE, except those on privilege.
  • The judge may consider hearsay, unauthenticated documents, or other evidence that would be inadmissible at trial, in order to decide whether the evidence should later be admitted.

This interacts with the division between judge and jury:

• The judge decides whether evidence is admissible at all.
• Once admitted, the jury decides what weight to give it.

In deciding 104(a) questions, the judge can rely on almost anything logically helpful, including:

• Hearsay statements about what happened
• Police reports
• Unsigned documents
• Prior consistent or inconsistent statements that might never reach the jury

The only constraint at the Rule 104(a) stage is that privilege rules still apply; the judge cannot force privileged communications into the record simply to decide admissibility.

Key Term: Motion in Limine
A pretrial motion asking the court to rule on the admissibility of evidence before it is offered at trial, often resolved under Rule 104(a) outside the scope of the FRE (except as to privileges).

A related but distinct idea is conditional relevance under Rule 104(b):

• When the relevancy of evidence depends on whether a certain fact is true (e.g., whether a letter was actually received), the jury decides that preliminary fact.
• In that context, the FRE do apply to the evidence presented to the jury, and the judge admits the evidence subject to the condition that the jury later finds the preliminary fact.

MBE questions sometimes contrast these two:

• Under 104(a), the judge decides preliminary facts affecting admissibility and can consider inadmissible evidence.
• Under 104(b), the jury decides preliminary facts affecting relevance, and the ordinary rules of evidence govern what the jury may hear.

This is a favorite MBE trap. If the question describes a suppression hearing or a pretrial evidentiary hearing about admissibility, and asks whether something like hearsay can be considered in deciding admissibility, the correct answer will often be “yes, because the rules of evidence (other than privileges) do not apply to preliminary questions of admissibility decided by the judge.”

Grand Jury Proceedings

Grand jury proceedings are investigative, not adversarial trials. FRE 1101 explicitly states that the FRE (other than privileges) do not apply.

Key Term: Grand Jury
A body of citizens convened to determine whether probable cause exists to issue a criminal indictment; proceedings are secret and not governed by the FRE (other than privileges).

Consequences in the grand jury room:

• The prosecutor may present hearsay, unauthenticated documents, and evidence that would be inadmissible at trial under the FRE.
• The exclusionary rule generally does not bar the use of illegally obtained evidence before the grand jury.
• Defendants do not have a right to have counsel present in the grand jury room (though witnesses may leave to consult counsel).
• Witnesses, however, still retain and may assert privileges (e.g., attorney–client, Fifth Amendment).

On the MBE, a common tested point is:

• A motion to dismiss an indictment cannot succeed merely because the indictment rested on incompetent or inadmissible evidence under the FRE.
• Unless some independent constitutional violation is shown (e.g., discrimination in selection of grand jurors), the composition and evidentiary basis of the grand jury’s decision is not a ground for dismissal.

MBE angle: If a witness tries to keep out hearsay at a grand jury proceeding “under the Federal Rules of Evidence,” that objection fails; the only viable objections are based on privilege or constitutional rights.

Sentencing, Probation, and Parole Revocation

At sentencing and at probation or supervised release revocation hearings:

• The FRE do not apply.
• The judge may consider a broad range of information, including:
  • Hearsay within presentence reports
  • Uncharged conduct
  • Victim impact statements
  • Police reports and statements from non-testifying witnesses

Key Term: Sentencing Hearing
A post-conviction proceeding in which the judge determines the appropriate punishment; not governed by most FRE provisions, though due process and privilege rules still apply.

Limits still exist:

• Due process requires that the information be reliable enough and that the defendant have an opportunity to contest materially false or misleading information.
• The defendant has a constitutional right to counsel at sentencing in serious cases.
• Privileges still protect covered communications.

Separate from the FRE, the Supreme Court has held that certain facts that increase a sentence beyond the statutory maximum, or that trigger mandatory minimums, must be found by a jury beyond a reasonable doubt (Apprendi, Alleyne). That is a constitutional requirement, not an application of the FRE, and does not change the rule that hearsay and other “inadmissible” material may be relied on by the judge at sentencing.

On the MBE, do not try to suppress evidence at sentencing by invoking hearsay rules; instead, consider due process, statutory limits, or privileges.

Bail, Extradition, and Other Miscellaneous Proceedings

For the following, the FRE (other than privileges) do not apply:

• Bail and pretrial detention hearings
• Extradition and rendition hearings
• Issuing arrest or search warrants
• Initial appearances and preliminary examinations in criminal cases
• Summary contempt proceedings

Key Term: Summary Contempt
A form of contempt—typically for conduct in the court’s presence—that the judge may punish immediately, without a full evidentiary hearing; the FRE do not apply.

In these contexts, the judge may consider hearsay or other evidence that would not be admissible at a trial, because the purposes are:

• Making quick, practical decisions about risk, probable cause, or immediate courtroom management
• Avoiding mini-trials on evidentiary questions at each early stage of a criminal case

Examples:

• At a bail hearing, the court may rely on a prosecutor’s proffer summarizing witness statements and police reports.
• When issuing a search warrant, a magistrate may base probable cause on hearsay statements contained in an officer’s affidavit.
• At a preliminary examination, a judge may consider hearsay to decide whether probable cause exists to hold the defendant to answer.

You should still think about constitutional constraints:

• A bail decision cannot be arbitrary or purely punitive.
• A warrant must still be supported by probable cause.
• An extradition or rendition hearing must satisfy minimal due process.

But these constraints arise from constitutional law, not from the FRE.

Application in State Courts

The FRE govern federal proceedings. They do not govern proceedings in state courts unless a state has explicitly adopted a state evidence code modeled on the FRE.

Key Term: State Evidence Rules
The body of evidence law adopted by a particular state, which governs that state’s courts and may differ from the Federal Rules of Evidence.

On the MBE:

• Unless the question expressly states that the state has adopted rules identical to the FRE, assume you are applying the FRE, not state law.
• If the question clearly situates you in a state court and refers to “state evidence law,” then you should follow any rules stated in the problem (often mirroring the FRE, but not always).
• If you see a phrase like “In a prosecution in state court, under a statute identical to the Federal Rules of Evidence…,” treat the state as if it uses the FRE.

Remember that for purposes of subject matter jurisdiction, a case may be in federal court because of diversity, but state substantive law still governs the merits of the claim. That does not, by itself, change which evidence code you use: you still apply the FRE unless an exception (such as privilege) requires state law.

Federal versus State Law in Diversity Cases

In federal diversity cases, where state law supplies the substantive rules, the evidentiary framework is slightly more detailed.

Key Term: Diversity Case
A civil case in federal court in which jurisdiction is based on the parties’ diverse citizenship and state law supplies the rule of decision.

General rules:

• The FRE govern evidence in diversity cases, except:
  • Privileges
  • Certain elements of claims or defenses that are deemed “substantive” under Erie principles
  • The effect of substantive presumptions (FRE 302)

Under FRE 501:

• In civil cases where state law supplies the rule of decision (i.e., diversity cases and supplemental state-law claims in federal-question cases), state privilege law applies.

This means, for example, that:

• The existence and scope of the doctor–patient privilege in a diversity medical malpractice case will be determined by state law, not federal common law.
• In a diversity action alleging fraud, whether there is a recognized accountant–client privilege depends on state law.

Other Erie-related evidentiary points:

• Witness competency in civil cases governed by state law can be controlled by state competency rules (FRE 601).
• Presumptions that are an element of a state-law claim or defense (e.g., presumptions in favor of legitimacy, ownership, or mail delivery) follow state law as to their effect (FRE 302).

On the MBE, the most commonly tested distinction is simply:

• FRE for most evidentiary issues in federal court, including diversity cases
• State privilege law when state law supplies the rule of decision in a civil case

Special Rules for Privileges

Even when the FRE do not apply, privilege law does. FRE 1101(c) expressly provides that the rules on privilege apply to all stages of all proceedings in which the court sits, including:

• Grand jury proceedings
• Preliminary hearings and suppression hearings
• Sentencing hearings
• Bail, extradition, and detention hearings
• Probation and parole revocation hearings
• Contempt proceedings

Key Term: Privilege
A legal protection that allows a person to refuse to disclose, or to prevent others from disclosing, certain confidential communications (e.g., attorney–client, psychotherapist–patient, spousal, and Fifth Amendment privileges).

Thus:

• A witness before a grand jury can assert the attorney–client privilege or the Fifth Amendment privilege against self-incrimination.
• A defendant at sentencing can object to questions about privileged communications, even though other evidence rules do not apply.
• At a suppression hearing on a motion to exclude evidence, a witness can invoke marital communications privilege to avoid testifying to confidential spousal communications.

Frequent MBE distinction:

• FRE 1101(d) removes most evidence rules in certain proceedings.
• FRE 1101(c) keeps privilege rules in force everywhere.

When a question asks whether something like attorney–client communications can be compelled in a grand jury or sentencing context, the correct approach is to ignore hearsay and character rules and focus on whether a privilege applies and has been waived.

Judge and Jury: Who Applies the Rules

Within covered proceedings (civil and criminal trials), it is important to distinguish the respective roles of judge and jury.

• The judge’s role: decides questions of law, including:

  • Which evidence is admissible
  • Whether a privilege applies
  • Whether a witness is competent
  • Whether a hearsay exception is satisfied
  • Whether an expert is qualified and uses a reliable methodology

• The jury’s role: decides questions of fact, including:

  • What weight to give admitted evidence
  • Credibility of witnesses
  • Ultimate facts (e.g., negligence, intent, causation)

The FRE reflect this division:

• Rule 104(a): the judge decides preliminary questions of admissibility and is not bound by the rules of evidence (except privileges).
• Rule 104(b): for issues of conditional relevance (e.g., whether the defendant actually received notice), the judge screens for a minimal evidentiary basis and the jury decides whether the condition has been met.

The judge must also control the mode and order of presenting evidence (FRE 611), including:

• Excluding witnesses from the courtroom so they cannot tailor their testimony
• Limiting cross-examination to the scope of direct and credibility
• Preventing improper questioning (e.g., argumentative, compound, assuming facts not in evidence)

Once the judge has admitted evidence, the jury alone decides what to do with it. If evidence is admissible for one purpose but not another, the judge can (on request) give a limiting instruction.

This division of labor interacts with the scope of the FRE:

• The judge may sometimes act outside the FRE (e.g., in Rule 104(a) preliminary determinations).
• The jury only sees evidence that has already passed through the FRE “filter.”

Appeals and the Plain Error Rule

Errors in applying or ignoring the FRE are typically reviewed on appeal under an “affecting substantial rights” standard. To preserve an evidentiary issue for appeal, a party must:

• Make a timely, specific objection if evidence is admitted that should have been excluded, or
• Make an offer of proof if evidence is excluded that should have been admitted, explaining what the evidence would have been and why it should have been admitted

If no objection or offer of proof was made, Rule 103(e) allows:

• Reversal for plain error affecting a substantial right, even if no objection was made at trial.

Key Term: Plain Error
An obvious evidentiary or procedural error that affects substantial rights and may be corrected on appeal even without a timely objection.

Plain-error review is available only in proceedings where the FRE apply (i.e., trials and similar evidentiary hearings), not in excluded proceedings like grand jury investigations. In those excluded contexts, misapplication of the FRE is not a basis for relief because the rules do not apply there in the first place.

For exam purposes:

• If a federal criminal trial court admits clearly inadmissible hearsay and no one objects, the conviction can still be reversed if the error is plain and affects substantial rights.
• If the same hearsay is considered at a sentencing hearing, there is no FRE error at all, so Rule 103 and the plain-error doctrine are inapplicable; the only challenge would be constitutional (e.g., unreliable information violating due process).

Worked Example 1.1

A defendant is on trial in federal court for fraud. During the trial, the prosecution seeks to introduce a letter as evidence. The defense objects, arguing the letter is hearsay. Does the Federal Rules of Evidence apply to determine admissibility?

Answer:
Yes. The FRE apply to federal criminal jury trials, so the judge must use the FRE (including the hearsay rules and exceptions) to decide whether the letter is admissible.

Worked Example 1.2

During a federal sentencing hearing, the prosecution offers a police report as evidence of uncharged conduct. The defense objects under the FRE. Should the judge apply the FRE?

Answer:
No. The FRE do not apply to sentencing hearings. The judge may consider reliable hearsay and other information that would be inadmissible at trial, subject to due process and privilege protections.

Worked Example 1.3

In a federal criminal case, the defendant moves to suppress a confession as involuntary. At the pretrial suppression hearing, the judge considers hearsay testimony from officers who did not personally attend the interrogation. The defense objects that this is inadmissible hearsay under the FRE. How should the court rule?

Answer:
The objection should be overruled. The hearing concerns a preliminary question of admissibility under Rule 104(a). In deciding preliminary questions, the judge is not bound by the FRE (other than privileges) and may consider hearsay in determining whether the confession was voluntary.

Worked Example 1.4

A prosecutor presents a case to a federal grand jury. The only evidence of the defendant’s involvement in a drug conspiracy is an informant’s out-of-court statement, relayed by an agent. The defense later moves to dismiss the indictment, arguing the grand jury relied solely on inadmissible hearsay. Is that a valid basis to dismiss?

Answer:
No. The FRE (other than privileges) do not apply to grand jury proceedings. The prosecutor may present hearsay to the grand jury, and reliance on such hearsay does not invalidate the indictment.

Worked Example 1.5

At a federal bail hearing, the judge relies on an unsworn police report summarizing witness statements to conclude that the defendant is a flight risk. The defendant objects that the report is hearsay and unauthenticated. Must the judge exclude the report under the FRE?

Answer:
No. Bail hearings are among the miscellaneous proceedings excluded from the FRE. The judge may consider hearsay and unauthenticated material in assessing risk, subject to constitutional limits and privileges.

Worked Example 1.6

In a diversity medical malpractice case in federal court, the plaintiff seeks to prevent disclosure of communications with her treating physician under a broad state doctor–patient privilege. The defendant argues that the FRE govern and that there is no federal doctor–patient privilege in civil cases. Which privilege rules apply?

Answer:
State privilege law applies. In civil cases where state law supplies the rule of decision (such as a diversity malpractice action), FRE 501 instructs federal courts to apply state privilege rules. The FRE govern most other evidentiary questions, but privileges follow state law.

Worked Example 1.7

In a federal civil case, the judge holds a pretrial Daubert hearing to decide whether the plaintiff’s engineering expert uses a reliable methodology. The judge reviews the expert’s articles, unauthenticated technical reports, and hearsay statements from other engineers. The defendant objects that these materials are inadmissible hearsay under the FRE. Is the objection valid?

Answer:
No. The court is deciding a preliminary question of admissibility under Rule 104(a). In doing so, the judge is not bound by the FRE (other than privileges) and may consider hearsay and other material that would not be admissible before the jury, to determine whether the expert’s testimony is admissible.

Worked Example 1.8

In a federal criminal case, the defendant is charged with robbery. At trial, the prosecution introduces a confession without objection. On appeal, the defendant argues that the confession was inadmissible hearsay because the prosecutor did not lay the proper evidentiary basis. May the appellate court grant relief?

Answer:
Possibly, but only under the plain-error doctrine. Because the FRE applied at trial, the failure to object means the issue is reviewed, if at all, for plain error affecting substantial rights. If admitting the confession was an obvious error that likely influenced the verdict, the appellate court may reverse even without a contemporaneous objection.

Worked Example 1.9

At the defendant’s federal criminal preliminary examination before a magistrate judge, the government relies entirely on hearsay testimony by an agent summarizing what eyewitnesses told him. The defendant objects that her confrontation rights and the hearsay rules are violated. How should the court respond?

Answer:
The hearsay objection under the FRE should be overruled because preliminary examinations are among the miscellaneous proceedings excluded from the FRE. The Confrontation Clause does not guarantee full trial-type confrontation at preliminary examinations. However, the defendant still retains privilege protections and can challenge the reliability of the hearsay on due process grounds if it is egregiously unreliable.

Exam Warning

In MBE questions, do not reflexively assume the FRE apply. Always:

• Identify what kind of proceeding is happening.
• Ask whether that proceeding is listed as an excluded proceeding.
• Remember that grand jury, sentencing, bail, and preliminary hearings are classic situations where the FRE (other than privilege rules) do not apply.

If the question is set in one of these contexts and a party objects on hearsay or character-evidence grounds “under the Federal Rules of Evidence,” that objection is likely misplaced.

Another common trap is to confuse constitutional rules with the scope of the FRE. For example:

• The exclusionary rule and Miranda are constitutional doctrines that apply regardless of the FRE.
• The Confrontation Clause limits the use of testimonial hearsay against criminal defendants at trial, but does not govern grand jury practice or sentencing.

When you see a mixed question, separate:

• Does the FRE apply to this proceeding?
• Are there constitutional limits regardless of the FRE?

Revision Tip

A quick decision tree can help:

• Is this a civil or criminal trial in federal court (jury or bench)?
  • Yes → FRE apply.
  • No → Is it a grand jury, sentencing, bail, extradition, preliminary examination, or Rule 104(a) preliminary question?
    • Yes → FRE (other than privileges) do not apply.
    • No → Check the problem; it may specify the governing rules.

Memorize the short list of excluded proceedings. If the examiners go out of their way to name one of them, they want you to recognize that the FRE can’t be used to keep the evidence out.

Key Point Checklist

This article has covered the following key knowledge points:

• The FRE apply to civil and criminal cases in federal district courts, courts of appeals, the Court of Federal Claims, bankruptcy, and admiralty courts, and to proceedings before magistrate judges.
• Trials—both jury and bench—and non-summary contempt proceedings are covered proceedings where the FRE control admissibility.
• The FRE (other than privilege rules) do not apply to:
  • Judge-decided preliminary questions of admissibility under Rule 104(a)
  • Grand jury proceedings
  • Sentencing, probation, and supervised release revocation hearings
  • Bail, extradition, initial appearances, and preliminary examinations in criminal cases
  • Proceedings to obtain arrest and search warrants, and summary contempt
• In excluded proceedings, judges may rely on hearsay and other evidence that would be inadmissible at trial, subject to due process and other constitutional limits.
• Privilege rules (attorney–client, spousal, psychotherapist–patient, Fifth Amendment, etc.) apply at all stages of all proceedings, including grand jury, sentencing, and bail.
• In diversity cases, the FRE govern most evidentiary questions, but state privilege law applies under FRE 501, and certain state rules on presumptions and competency are also controlling.
• The judge decides questions of law (including admissibility and preliminary questions), often using Rule 104(a) without being bound by the FRE; the jury decides facts (weight and credibility).
• The plain-error rule permits appellate correction of obvious evidentiary errors affecting substantial rights in covered proceedings even without an objection, but does not apply where the FRE were inapplicable.
• Constitutional doctrines (Fourth, Fifth, Sixth Amendments) may restrict the use of evidence in any proceeding, but those are separate from the question whether the FRE apply.
• On the MBE, correctly identifying the type of proceeding is essential to choosing the right evidentiary framework and avoiding traps that wrongly invoke hearsay or character rules in excluded contexts.

Key Terms and Concepts

• Federal Rules of Evidence
• Covered Proceedings
• Excluded Proceedings
• Preliminary Question
• Motion in Limine
• Grand Jury
• Sentencing Hearing
• Summary Contempt
• State Evidence Rules
• Diversity Case
• Privilege
• Magistrate Judge
• Plain Error