The Family Rights Act

The Family Rights Act - (rev e 10/10/01)


I. AN ACT:


to recognize:


that the current patchwork of Family Law in the United States has become a tragedy in which both parents and children are victims,


that one of the most basic Civil Rights of any person is to associate with their children,


that the vast, vast majority of mothers and fathers are good people and good parents trying to do the best they can,


that most practioners in the present "system" mean well but are operating in a difficult environment where there is great administrative power,


that the "best interests of the child" are served by recognition of these rights and regular and frequent contact with both parents.


to enforce some of our most basic Civil Rights:


the Constitutional right of both parents to associate equally with their children and participate in their lives free of government interference ,


the Constitutional right of family members to be secure in their homes,


the Constitutional right of parents to change employment or careers throughout their lives,


by applying the traditional protection of a jury and proof beyond a reasonable doubt when any of the preceding freedoms are challenged


the standard of conduct and proof required for a parent to maintain an equal relationship with their children should be no more for a parent who is experiencing a divorce from their spouse -- than for a parent not experiencing a divorce.


to encourage:


the American people to realize the birth and raising of a child is an important decision that is not to be taken lightly and which will place them (whether they like it or not) in proximity to the other parent for many years.


the States to institute programs in parenting and marriage and to encourage attendance in pre-marriage classes before a Marriage License is granted.


to provide:


that the provisions of this Act become the "default" agreement between individuals before they form a family,


that the States and/or individuals are free to institute other agreements to replace this Act, but the acceptance of those provisions must require free will acceptance by the part of any individual to be affected,


for the involuntary termination of the preceding rights only when the family member is found unfit to parent -- with the same standard of jury protection and speedy trial,


to confer jurisdiction upon the district courts of the United States to provide injunctive relief,


to authorize the attorney General to institute suits to protect such rights


and for other purposes.


Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Family Rights Act".


II. DEFINITIONS:


The term "parent" applies to both the biological father and mother of a child. If the biological parent is deceased or has taken action to leave the child for adoption --it then means the adopted parent(s).


The term "family member" means either a child or parent. The term applies to parents who are unmarried, married, or divorced.


The term "home" means a living area which is either owned or rented by the individual.


The term "Unfit to Parent" means to be found guilty of threatening the safety of their child. This is a criminal accusation, and a person accused has the protection of a Jury. The burden of proof is on the prosecutor to show this person has engaged in conduct of the type, such that if similar conduct were done by any other parent in the community, they would be found guilty of the same crime.


The term "attempting to escape support" means a willful attempt by a parent to reduce their Child Support obligation by reducing their income primarily for the purpose of reducing the payment. This is a serious accusation, and a person accused has the protection of a Jury.


The term "speedy trial" means that if a parent is charged with misconduct which results in a "temporary" order either limiting access to their home or to their children -- they have the right to be brought to trial on the charges within 60 days.


III. BACKGROUND:


This Act is drawn in the light of the following sections of the U.S. Constitution:

Seventh Amendment - "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . "

Ninth Amendment - "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people … "

While the framers of the Constitution did not include "matrimonial" issues specifically within these amendments, divorces were not then considered matters within the "common" law, but rather church law - we consider the present day frequency and ease of Divorce proceedings (and their devastating effect on families). This "evolution" have would have caused the "founding fathers" some concern. Especially when considered with those words from our:


Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness."

Americans have always held to the tradition that "Liberty" and "Life" rights deserve our greatest protections. In response to recent government activism over the past 40 years, we must now clearly recognize our right to associate with our children, to be secure in our homes. What greater and purer "Happiness" can there be in life than the relation between parent and child.

Who among us, when faced with a Court proceeding in which we felt a Judge or Government official was about to unjustly limit contact with our children - would not want the safety valve of a jury?

Who among us would not want a presumption we be allowed equal contact with our children?


The right to the company of one's children/parent is a right preserved to the people.


IV. IMPLEMENTATION


The following scenarios are examples reflecting adherence to the goals of this Act. Unless a parent is found unfit -- the relationship with the children continues unbroken. (In the Draft these are to be seen as examples of what would really happen, your input is valuable in making changes/updates as part of the process. Wording is very crucial).


There is a family living in a home with children. One parent decides to initiate a Divorce Proceeding against the other. Regarding Physical Custody:


Other than voluntarily, the other parent cannot be forced to leave the home unless they are found "Unfit to Parent". They have the right to Jury protection if such a charge is brought.


If both parents are seeking divorce one may be required by the Court to leave the home.


Voluntarily, either of the parents may leave the home and start residence elsewhere in the same locality (within app. 30 minutes driving). The children will continue at the school of the original residence and will spend app. equal time at the homes of both parents. The standard arrangement will have the child spend alternating weeks with each parent.


The preceding paragraph applies even after a Divorce is granted.


If a parent decides to move farther away the children will not be moved unless the other parent is "Unfit to Parent". Special emphasis will be given for the children having vacation time with that parent.


Regarding Legal Custody. Unless a parent is found "Unfit to Parent", there shall be JOINT legal custody of children between the parents. Both parents shall be aware of what is going on in their children's lives. If there is disagreement regarding a decision which must be made:


One parent will have the "tie breaking" vote for the year. That authority will alternate each year.


If the other parent wishes to pursue the decision in Court, mediation will be required first.


There is a family living in a home with children. One parent makes an accusation of domestic violence (between parents) against the other:


Other than voluntarily, the other parent cannot be forced to leave the home unless they are found guilty of Criminal misconduct. They have the right to Jury protection if such a charge is brought and to speedy trial.


Any law which provides for "automatic" arrest, without requiring independent corroborating evidence for the responding police officer, violates this Act.


In and of itself, a charge or conviction of "Domestic Violence" against another parent does not make someone "Unfit to Parent".


There is a family living in a home with children. One parent makes an accusation of domestic violence, sexual abuse by the other parent against the children:


Any law which provides for "automatic" arrest, without requiring independent corroborating evidence for the responding police officer, violates this Act.


Other than voluntarily, the other parent cannot be forced to permanently leave the home unless they are found guilty of such misconduct. They have the right to Jury protection if such a charge is brought and to speedy trial.


There is a separated family, with the children spending equal time with both parents. Regarding financial support of the children:


The amount of support paid may be based on both real assets and income as reported in Federal Tax Returns. The use of "imputed" income is not allowed unless the person is found to be guilty (by a Jury) of attempting to escape support.


A parent is always free to change their job and the Support Payment must be adjusted to reflect actual income (and may be adjusted retroactively and slowly corrected). The only exception is if the person is found to be guilty (by a Jury) of attempting to escape support.


A finding of "Unfit to Parent" is a severe finding and should be infrequent. This is the standard to be used by the Jury before contact between parent/child is limited in any way [we welcome your comments on the DRAFT. This is the crucial item and must be defined well]:


All parents can be a little better or improve in their skills (this should NOT reduce their time with their children). The standard is not to be applied to just parents going through a divorce, but to all parents in the community. Their are a wide variety in parenting styles in our nation.


We would hope States could offer parents optional "skills" classes in different areas of child-rearing.


A life threatening injury requiring medical attention delivered with mal intent is included.


How/should you quantify "mental abuse"?


It is NOT based on predicted conduct, but actual severe conduct. It also includes the elements of intent to harm. Consider the following:


Parents who smoke - we know second hand smoke is a clear health threat. Imagine parents who both "smoke like chimnies". They are a threat to their children, but their is no intent to harm.


Religious convictions - there are communities of Amish/Mennonites (among others) who do not believe in certain types of medical treatment. Withholding treatment would not be considered an intent to harm.


V. Unsupported Implementations & Rationale


The following implementation ideas were not supported, brief rationale is given:


"Having Juries would slow the system down to much!" - This has not been proven at all.


This same argument would probably be made against our criminal justice system -- but actually it encourages a fair decision and settlement. Any suspected criminal who is presented with a "plea" to avoid trial can make the decision to accept the punishment -- or demand a trial and have his accusers prove their case. In Family Law, once a Judge feels a parent should be separated from children -- there is little hope.


With a clear standard of "Unfit to Parent" -- most of the petty accusations that really do bog the system down would be dropped.


"Let the child decide who they want to live with is -- it is their right"


None of us had even the smallest say in deciding who our parents were. Adults have the great responsibility and right in determining who they will share parenting with. While they are children they have a "right" to contact with two parents.


We don't allow children to cast a vote for President (as intelligent, well read, and politically involved as they may be). Do we let them 'cast' an even more important vote?


It is simple human nature for an adult going through divorce to place the primary "blame" on the other spouse. It is also natural for them to seek affirmation from their friends (how many of us have had our "ears talked off" by someone describing a bitter divorce). Unfortunately, it is also natural to expect such an adult to attempt to "convince" their children of the same thing.


With older teenage children -- how many of us would be tempted to play one parent off the other in an attempt to gain extra freedom or privileges?


"Custody decisions will be based on the Primary Caregiver"


Whatever parent happens to have the ability/desire to stay with a child at home should not have a preference over the one pursuing a career at that time, outside the home.


Both parents have valuable contributions to make to the child. The parent/child relationship is dynamic and changes as both grow in the relationship, and to the benefit of both. This is consistent with appreciating the basic Civil Right of parents/children to associate.


"Standards of evidence should be relaxed for Family Custody matters. There just aren't enough facts some times..."


This is probably the greatest reason for the tragedy of the present system. The overworked staff, lawyers, and Judges try to make critical decisions -- and they don't have enough time or facts -- and sometimes not even the desire. They are tired & overworked. It becomes a "job", and sometimes you make mistakes, get a little callous, start to form biases. This is why there are rules of evidence. This why the Nation's founders installed the jury system. The jury requires the "system" to prove to people "off the street" that it can justify its claims.


The criminal "rules of evidence" are used to prevent abuse of the system. They recognize that people lie to get what they want. The motivation to lie is certainly present in a Divorce. It is very easy to rationalize pure fabrication or dramatization -- as long as you don't really have to prove anything. When just allegations are rewarded, you get more allegations.


We recognize that sometimes there could be a real problem, but we just don't have the proof "beyond a reasonable doubt" necessary to take action. We do much more harm by allowing people to play a "hunch" or "suspicion" and destroy a family.


"We need more scientific studies on this..." -- It is not uncommon to see various statistics presented as justification for Family Law Reform, e.g. 63% of children raised in single parent homes grow up with this problem, OR, you get comparisons of the effectiveness of men versus women as parents!!!!


This is about your Civil Rights to have a relationship with your children. We are not talking about a technical issue of road construction or fresh water management.


Imagine "modern sociological studies" done before the Civil War on the issue of whether the slaves should be freed? "... We really are concerned about their physical well being and that of their children. To release this great mass of people all at once would be fool hardy. Some of them can't handle freedom, their children would starve, what are they going to do for work? Maybe a phased approach would be best, we'll release some of the more educated ones (after they pass some tests) and take it slow with the rest." (We might still have slavery now!)


Please remember our criminal law system, you are presumed innocent until proven guilty. Even if 80% of teenagers picked up by police are eventually found guilty -- would you just want to remove the "formality" of a trial and just find everyone guilty?


Consider the recognition and protection of our most basic right to associate with our children. The slave had a right to immediate freedom, and so do we.


Comment on the Act.

The Constitutional Right to Be a Parent

Below are excerpts of caselaw from state appellate and federal district courts and up to the U.S. Supreme Court, all of which affirm, from one perspective or another, the absolute Constitutional right of parents to actually BE parents to their children.


No case authoritative within this circuit, however, had held that the state had a comparable obligation to protect children from their own parents, and we now know that the obligation does not exist in constitutional law.” K.H. Through Murphy v. Morgan, 914 F.2d 846 (C.A.7 (Ill.), 1990.


"Rights to marry, have children and maintain relationship with children are fundamental rights protected by the Fourteenth Amendment and thus, strict scrutiny is required of any statutes that directly and substantially impair those rights." P.O.P.S. v. Gardner, 998 F2d 764 (9th Cir. 1993)

"Parents right to rear children without undue governmental interference is a fundamental component of due process."
Nunez by Nunez v. City of San Diego, 114 F3d 935 (9th Cir. 1997)


The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).


The several states have no greater power to restrain individual freedoms protected by the First Amendment than does the Congress of the United States. Wallace v. Jaffree, 105 S Ct 2479; 472 US 38, (1985).


Loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Though First Amendment rights are not absolute, they may be curtailed only by interests of vital importance, the burden of proving which rests on their government. Elrod v. Burns, 96 S Ct 2673; 427 US 347, (1976).


Law and court procedures that are "fair on their faces" but administered "with an evil eye or a heavy hand" was discriminatory and violates the equal protection clause of the Fourteenth Amendment. Yick Wo v. Hopkins, 118 US 356, (1886).


Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982).


Parents have a fundamental constitutionally protected interest in continuity of legal bond with their children. Matter of Delaney, 617 P 2d 886, Oklahoma (1980). .


The liberty interest of the family encompasses an interest in retaining custody of one's children and, thus, a state may not interfere with a parent's custodial rights absent due process protections. Langton v. Maloney, 527 F Supp 538, D.C. Conn. (1981).


Parent's right to custody of child is a right encompassed within protection of this amendment which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect. Regenold v. Baby Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US 963, IL, (1977).


Parent's interest in custody of her children is a liberty interest which has received considerable constitutional protection; a parent who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. In the Interest of Cooper, 621 P 2d 437; 5 Kansas App Div 2d 584, (1980).


The Due Process Clause of the Fourteenth Amendment requires that severance in the parent-child relationship caused by the state occur only with rigorous protections for individual liberty interests at stake. Bell v. City of Milwaukee, 746 F 2d 1205; US Ct App 7th Cir WI, (1984).


Father enjoys the right to associate with his children which is guaranteed by this amendment (First) as incorporated in Amendment 14, or which is embodied in the concept of "liberty" as that word is used in the Due Process Clause of the 14th Amendment and Equal Protection Clause of the 14th Amendment. Mabra v. Schmidt, 356 F Supp 620; DC, WI (1973).


"Separated as our issue is from that of the future interests of the children, we have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody." May v. Anderson, 345 US 528, 533; 73 S Ct 840, 843, (1952).


A parent's right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at 489.


The Court stressed, "the parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection." A parent's interest in the companionship, care, custody and management of his or her children rises to a constitutionally secured right, given the centrality of family life as the focus for personal meaning and responsibility. Stanley v. Illinois, 405 US 645, 651; 92 S Ct 1208, (1972).


Parent's rights have been recognized as being "essential to the orderly pursuit of happiness by free man." Meyer v. Nebraska, 262 US 390; 43 S Ct 625, (1923).


The U.S. Supreme Court implied that "a (once) married father who is separated or divorced from a mother and is no longer living with his child" could not constitutionally be treated differently from a currently married father living with his child. Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255^Q56, (1978).


The U.S. Court of Appeals for the 9th Circuit (California) held that the parent-child relationship is a constitutionally protected liberty interest. (See; Declaration of Independence --life, liberty and the pursuit of happiness and the 14th Amendment of the United States Constitution -- No state can deprive any person of life, liberty or property without due process of law nor deny any person the equal protection of the laws.) Kelson v. Springfield, 767 F 2d 651; US Ct App 9th Cir, (1985).


The parent-child relationship is a liberty interest protected by the Due Process Clause of the 14th Amendment. Bell v. City of Milwaukee, 746 f 2d 1205, 1242^Q45; US Ct App 7th Cir WI, (1985).


No bond is more precious and none should be more zealously protected by the law as the bond between parent and child." Carson v. Elrod, 411 F Supp 645, 649; DC E.D. VA (1976).


A parent's right to the preservation of his relationship with his child derives from the fact that the parent's achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child's corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by a loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582, 595^Q599; US Ct App (1983).


A parent's right to the custody of his or her children is an element of "liberty" guaranteed by the 5th Amendment and the 14th Amendment of the United States Constitution. Matter of Gentry, 369 NW 2d 889, MI App Div (1983).


Reality of private biases and possible injury they might inflict were impermissible considerations under the Equal Protection Clause of the 14th Amendment. Palmore v. Sidoti, 104 S Ct 1879; 466 US 429.


Legislative classifications which distributes benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the proper place of women and their need for special protection; thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination against women must be carefully tailored. the state cannot be permitted to classify on the basis of sex. Orr v. Orr, 99 S Ct 1102; 440 US 268, (1979).


The United States Supreme Court held that the "old notion" that "generally it is the man's primary responsibility to provide a home and its essentials" can no longer justify a statute that discriminates on the basis of gender. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas. Stanton v. Stanton, 421 US 7, 10; 95 S Ct 1373, 1376, (1975).


Judges must maintain a high standard of judicial performance with particular emphasis upon conducting litigation with scrupulous fairness and impartiality. 28 USCA § 2411; Pfizer v. Lord, 456 F.2d 532; cert denied 92 S Ct 2411; US Ct App MN, (1972).


State Judges, as well as federal, have the responsibility to respect and protect persons from violations of federal constitutional rights. Gross v. State of Illinois, 312 F 2d 257; (1963).


The Constitution also protects "the individual interest in avoiding disclosure of personal matters." Federal Courts (and State Courts), under Griswold can protect, under the "life, liberty and pursuit of happiness" phrase of the Declaration of Independence, the right of a man to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. There is a family right to privacy which the state cannot invade or it becomes actionable for civil rights damages. Griswold v. Connecticut, 381 US 479, (1965).


The right of a parent not to be deprived of parental rights without a showing of fitness, abandonment or substantial neglect is so fundamental and basic as to rank among the rights contained in this Amendment (Ninth) and Utah's Constitution, Article 1 § 1. In re U.P., 648 P 2d 1364; Utah, (1982).


The rights of parents to parent-child relationships are recognized and upheld. Fantony v. Fantony, 122 A 2d 593, (1956); Brennan v. Brennan, 454 A 2d 901, (1982). State's power to legislate, adjudicate and administer all aspects of family law, including determinations of custodial; and visitation rights, is subject to scrutiny by federal judiciary within reach of due process and/or equal protection clauses of 14th Amendment...Fourteenth Amendment applied to states through specific rights contained in the first eight amendments of the Constitution which declares fundamental personal rights...Fourteenth Amendment encompasses and applied to states those preexisting fundamental rights recognized by the Ninth Amendment. The Ninth Amendment acknowledged the prior existence of fundamental rights with it: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The United States Supreme Court in a long line of decisions, has recognized that matters involving marriage, procreation, and the parent-child relationship are among those fundamental "liberty" interests protected by the Constitution. Thus, the decision in Roe v. Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147, (1973), was recently described by the Supreme Court as founded on the "Constitutional underpinning of ... a recognition that the "liberty" protected by the Due Process Clause of the 14th Amendment includes not only the freedoms explicitly mentioned in the Bill of Rights, but also a freedom of personal choice in certain matters of marriage and family life." The non-custodial divorced parent has no way to implement the constitutionally protected right to maintain a parental relationship with his child except through visitation. To acknowledge the protected status of the relationship as the majority does, and yet deny protection under Title 42 USC § 1983, to visitation, which is the exclusive means of effecting that right, is to negate the right completely. Wise v. Bravo, 666 F.2d 1328, (1981).


One of the most precious rights possessed by parents is the right to raise their children free of government interference. That right, "more precious than mere property rights," is a liberty interest, protected by the substantive and procedural Due Process Clauses of the Fourteenth Amendment. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Moreover, the fact that the custodians are grandparents rather than parents is legally insignificant, because families headed by extended family members are entitled to the same constitutional protections as those headed by parents, Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) Even relatives who are licensed as foster parents enjoy the same constitutional rights as other custodial relatives. Rivera v. Marcus, 696 F.2d 1016 (2d Cir. 1982).


Because of the magnitude of the liberty interests of parents and adult extended family members in the care and companionship of children, the Fourteenth Amendment protects these substantive due process liberty interests by prohibiting the government from depriving fit parents of custody of their children. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Santosky v. Kramer, 455 U.S. 745, 760, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Duchesne v. Sugarman, 566 F.2d 817, 824 (2d Cir. 1977); Hurlman v. Rice, 927 F.2d 74, 79 (2d Cir. 1991). In the United States Supreme Court’s view, the state registers "no gains toward its stated goals [of protecting children] when it separates a fit parent from the custody of his children." Stanley, 405 U.S. at 652.


Grandparents are also entitled to procedural due process. “An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.2d 865 (1950)).


The grandchildren have a Fourth Amendment right not to be seized by the government for child protective purposes unless it has probable cause to believe that the children have been neglected. Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), cert. denied, 529 U.S. 1098, 120 S.Ct. 1832, 146 L.Ed.2d 776 (2000). Probable cause exists only if the officials have persuasive evidence of serious ongoing abuse and reason to fear imminent recurrence. Robison v. Via, 821 F.2d 913, 922 (2d Cir. 1987).


Grandparents cannot be dismissed from the dependency case because the dependency case is the only legal way that the state can interfere with their custody. The state must prove that they are abusive or neglectful and that the children would be at risk of immediate serious harm if returned.


FROM THE COLORADO SUPREME COURT, 1910


In controversies affecting the custody of an infant, the interest and welfare of the child is the primary and controlling question by which the court must be guided. This rule is based upon the theory that the state must perpetuate itself, and good citizenship is essential to that end. Though nature gives to parents the right to the custody of their own children, and such right is scarcely less sacred than the right to life and liberty, and is manifested in all animal life, yet among mankind the necessity for government has forced the recognition of the rule that the perpetuity of the state is the first consideration, and parental authority itself is subordinate to this supreme power. It is recognized that: 'The moment a child is born it owes allegiance to the government of the country of its birth, and is entitled to the protection of that government. And such government is obligated by its duty of protection, to consult the welfare, comfort and interest of such child in regulating its custody during the period of its minority.' Mercein v. People, 25 Wend. (N. Y.) 64, 103, 35 Am. Dec. 653; McKercher v. Green, 13 Colo. App. 271, 58 Pac. 406. But as government should never interfere with the natural rights of man, except only when it is essential for the good of society, the state recognizes, and enforces, the right which nature gives to parents [48 Colo. 466] to the custody of their own children, and only supervenes with its sovereign power when the necessities of the case require it.


The experience of man has demonstrated that the best development of a young life is within the sacred precincts of a home, the members of which are bound together by ties entwined through 'bone of their bone and flesh of their flesh'; that it is in such homes and under such influences that the sweetest, purest, noblest, and most attractive qualities of human nature, so essential to good citizenship, are best nurtured and grow to wholesome fruition; that, when a state is based and builded upon such homes, it is strong in patriotism, courage, and all the elements of the best civilization. Accordingly these recurring facts in the experience of man resulted in a presumption establishing prima facie that parents are in every way qualified to have the care, custody, and control of their own offspring, and that their welfare and interests are best subserved under such control. Thus, by natural law, by common law, and, likewise, the statutes of this state, the natural parents are entitled to the custody of their minor children, except when they are unsuitable persons to be intrusted with their care, control, and education, or when some exceptional circumstances appear which render such custody inimicable to the best interests of the child. While the right of a parent to the custody of its infant child is therefore, in a sense, contingent, the right can never be lost or taken away so long as the parent properly nurtures, maintains, and cares for the child.


Wilson v. Mitchell, 111 P. 21, 25-26, 48 Colo. 454 (Colo. 1910)

RULES OF EVIDENCE FOR COURTS IN THE STATE OF ARIZONA

RULES OF EVIDENCE FOR COURTS IN THE STATE OF ARIZONA

ARTICLE I. GENERAL PROVISIONS


Rule 101. Scope
Rule 102. Purpose and Construction
Rule 103. Rulings on Evidence
Rule 104. Preliminary Questions
Rule 105. Limited Admissibility
Rule 106. Remainder of or Related Writings or Recorded Statements


ARTICLE II. JUDICIAL NOTICE


Rule 201. Judicial Notice of Adjudicative Facts


ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS


Rule 301. Presumptions in General in Civil Actions and Proceedings (Not Adopted)
Rule 302. Applicability of State Law in Civil Actions and Proceedings (Not Adopted)


ARTICLE IV. RELEVANCY AND ITS LIMITS


AZ ST REV Art. IV, Refs & Annos


Rule 401. Definition of "Relevant Evidence"
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes
Rule 405. Methods of Proving Character
Rule 406. Habit; Routine Practice
Rule 407. Subsequent Remedial Measures
Rule 408. Compromise and Offers to Compromise
Rule 409. Payment of Medical and Similar Expenses
Rule 410. Offer to Plead Guilty; Nolo Contendere; Withdrawn Plea of Guilty
Rule 411. Liability Insurance


ARTICLE V. PRIVILEGES


Rule 501. General Rule


ARTICLE VI. WITNESSES


AZ ST REV Art. VI, Refs & Annos


Rule 601. General Rule of Competency
Rule 602. Lack of Personal Knowledge
Rule 603. Oath or Affirmation
Rule 604. Interpreters
Rule 605. Competency of Judge as Witness
Rule 606. Competency of Juror as Witness
Rule 607. Who May Impeach
Rule 608. Evidence of Character and Conduct of Witness
Rule 609. Impeachment by Evidence of Conviction of Crime
Rule 610. Religious Beliefs or Opinions
Rule 611. Mode and Order of Interrogation and Presentation
Rule 612. Writing Used to Refresh Memory
Rule 613. Prior Statements of Witnesses
Rule 614. Calling and Interrogation of Witnesses by Court
Rule 615. Exclusion of Witnesses


ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

Rule 701. Opinion Testimony by Lay Witnesses
Rule 702. Testimony by Experts
Rule 703. Bases of Opinion Testimony by Experts
Rule 704. Opinion on Ultimate Issue
Rule 705. Disclosure of Facts or Data Underlying Expert Opinion
Rule 706. Court Appointed Experts


ARTICLE VIII. HEARSAY


Rule 801. Definitions
Rule 802. Hearsay Rule
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial
Rule 804. Hearsay Exceptions; Declarant Unavailable
Rule 805. Hearsay Within Hearsay
Rule 806. Attacking and Supporting Credibility of Declarant


ARTICLE IX. AUTHENTICATION AND IDENTIFICATION


Rule 901. Requirement of Authentication or Identification
Rule 902. Self-Authentication
Rule 903. Subscribing Witness' Testimony Unnecessary


ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS


Rule 1001. Definitions
Rule 1002. Requirement of Original
Rule 1003. Admissibility of Duplicates
Rule 1004. Admissibility of Other Evidence of Contents
Rule 1005. Public Records
Rule 1006. Summaries
Rule 1007. Testimony or Written Admission of Party
Rule 1008. Functions of Court and Jury


ARTICLE XI. MISCELLANEOUS RULES


Rule 1101. Applicability of Rules
Rule 1102. Amendments (deleted)
Rule 1103. Title


















Rule 101. Scope

These rules govern proceedings in courts in the State of Arizona, with the
exceptions stated in Rule 1101.

Rule 102. Purpose and Construction

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

Rule 103. 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.


(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.



(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.



(d) Fundamental error. Nothing in this rule precludes taking notice of errors
affecting fundamental rights although they were not brought to the attention of
the court.
Rule 104. 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.

Rule 104. 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.



(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 may
admit it subject to, the introduction of evidence sufficient to support a finding
of the fulfillment of the condition.



(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.



(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.



(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.
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Rule 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.

Rule 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.


Rule 201. Judicial Notice of Adjudicative Facts


(a) Scope of rule. This rule governs only 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.



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



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



(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.



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



(g) Instructing jury. The court shall instruct the jury to accept as conclusive
any fact judicially noticed.


Rule 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


Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence
Inadmissible

All relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, by the Constitution of Arizona or by applicable
statutes or rules. Evidence which is not relevant is not admissible.


Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.

Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes

(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:



(1) Character of accused or civil defendant. Evidence of a pertinent trait of
character offered by an accused, or by the prosecution to rebut the same, or
evidence of the aberrant sexual propensity of the accused or a civil defendant
pursuant to Rule 404(c);


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


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


(b) Other crimes, wrongs, or acts. Except as provided in Rule 404(c) 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.



(c) Character evidence in sexual misconduct cases



In a criminal case in which a defendant is charged with having committed a sexual
offense, or a civil case in which a claim is predicated on a party's alleged
commission of a sexual offense, evidence of other crimes, wrongs, or acts may be
admitted by the court if relevant to show that the defendant had a character trait
giving rise to an aberrant sexual propensity to commit the offense charged. In
such a case, evidence to rebut the proof of other crimes, wrongs, or acts, or an
inference therefrom, may also be admitted.


(1) In all such cases, the court shall admit evidence of the other act only if
it first finds each of the following:


(A) The evidence is sufficient to permit the trier of fact to find that the
defendant committed the other act.


(B) The commission of the other act provides a reasonable basis to infer that
the defendant had a character trait giving rise to an aberrant sexual
propensity to commit the crime charged.


(C) The evidentiary value of proof of the other act is not substantially
outweighed by danger of unfair prejudice, confusion of issues, or other factors
mentioned in Rule 403. In making that determination under Rule 403 the court
shall also take into consideration the following factors, among others:


(i) remoteness of the other act;


(ii) similarity or dissimilarity of the other act;


(iii) the strength of the evidence that defendant committed the other act;


(iv) frequency of the other acts;


(v) surrounding circumstances;


(vi) relevant intervening events;


(vii) other similarities or differences;


(viii) other relevant factors.


(D) The court shall make specific findings with respect to each of (A), (B),
and (C) of Rule 404(c)(1).


(2) In all cases in which evidence of another act is admitted pursuant to this
subsection, the court shall instruct the jury as to the proper use of such
evidence.


(3) In all criminal cases in which the state intends to offer evidence of other
acts pursuant to this subdivision of Rule 404, the state shall make disclosure
to the defendant as to such acts as required by Rule 15.1, Rules of Criminal
Procedure, no later than 45 days prior to the final trial setting or at such
later time as the court may allow for good cause. The defendant shall make
disclosure as to rebuttal evidence pertaining to such acts as required by Rule
15.2, no later than 20 days after receipt of the state's disclosure or at such
other time as the court may allow for good cause. In all civil cases in which a
party intends to offer evidence of other acts pursuant to this subdivision of
Rule 404, the parties shall make disclosure as required by Rule 26.1, Rules of
Civil Procedure, no later than 60 days prior to trial, or at such later time as
the court may allow for good cause shown.


(4) As used in this subsection of Rule 404, the term "sexual offense" is as
defined in A.R.S. Sec. 13-1420(C) and, in addition, includes any offense of
first-degree murder pursuant to A.R.S. Sec. 13-1105(A)(2) of which the
predicate felony is sexual conduct with a minor under Sec. 13-1405, sexual
assault under Sec. 13-1406, or molestation of a child under Sec. 13-1410.


Rule 405. 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.

(b) Specific instances of conduct. In cases in which character or a trait of
character of a person is an essential element of a charge, claim, or defense, or
pursuant to Rule 404(c), proof may also be made of specific instances of that
person's conduct.



Rule 406. Habit; Routine Practice

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.


Rule 407. Subsequent Remedial Measures

When, after an event, measures are taken, which if taken previously, would have
made the event less likely to occur, evidence of the subsequent measures is not
admissible to prove negligence or culpable conduct in connection with the event.
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.


Rule 408. Compromise and Offers to Compromise

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.

Rule 409. Payment of Medical and Similar Expenses

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.
Rule 410. Offer to Plead Guilty; Nolo Contendere; Withdrawn Plea of Guilty

Except as otherwise provided by applicable Act of Congress, Arizona statute, or
the Arizona Rules of Criminal Procedure, evidence of a plea of guilty, later
withdrawn, or a plea of nolo contendere or no contest, or an offer to plead
guilty, nolo contendere or no contest to the crime charged or any other crime, or
of statements made in connection with any of the foregoing pleas or offers is not
admissible against the person who made the plea or offer in any civil or criminal
action or administrative proceeding.

Rule 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


Rule 501. General Rule

Except as otherwise required by the Constitution of the United States, the
Constitution of Arizona, or by applicable statute or rule, privilege shall be
governed by the principles of the common law as they may be interpreted in light
of reason and experience, or as they have been held to apply in former decisions.


Rule 601. General Rule of Competency

Every person is competent to be a witness except as otherwise provided in these
rules or by statute


Rule 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.

Rule 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.

Rule 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.

Rule 605. Competency of 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.

Rule 606. Competency of 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.

(b) Inquiry into validity of verdict in civil action. Upon an inquiry into the
validity of a verdict in a civil action, 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 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.

Rule 607. Who May Impeach

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


Rule 608. Evidence of Character and Conduct of Witness

(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.



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


Rule 609. Impeachment by Evidence of Conviction of Crime

(a) General rule. For the purpose of attacking the credibility of a witness,
evidence that the witness has been convicted of a crime shall be admitted if
elicited from the witness or established by public record, if the court determines
that the probative value of admitting this evidence outweighs its prejudicial
effect, and if the crime (1) was punishable by death or imprisonment in excess of
one year under the law under which the witness was convicted or (2) involved
dishonesty or false statement, regardless of the punishment.

(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.


(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.

(d) Juvenile adjudications. Evidence of juvenile adjudication 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.

(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.

Rule 610. Religious Beliefs or 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

Rule 611. Mode and Order of Interrogation and Presentation

(a) Control by Court; Time Limitations. 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. The court may impose
reasonable time limits on the trial proceedings or portions thereof.

(b) Scope of cross-examination. A witness may be cross-examined on any relevant
matter.

(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. A party may interrogate an unwilling, hostile or biased
witness by leading questions. A party may call an adverse party or an officer,
director, or managing agent of a public or private corporation or of a partnership
or association which is an adverse party or a witness whose interests are
identified with an adverse party and interrogate that person by leading questions.
The witness thus called may be interrogated by leading questions on behalf of the
adverse party also.

Rule 612. Writing Used to Refresh Memory


If a witness uses a writing to refresh memory for the purpose of testifying,
either--

(1) before testifying, if the court in its discretion determines it is necessary
in the interests of justice, or

(2) while testifying,

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 action,
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.

Rule 613. Prior Statements of Witnesses

(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.



(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).


Rule 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.

Rule 615. Exclusion of Witnesses

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 of its own
motion. This rule does not authorize exclusion of (1) a party who is a natural
person, or (2) an officer or employee of a party which is not a natural person
designated as its representative by its attorney, or (3) a person whose presence
is shown by a party to be essential to the presentation of the party's cause, or
(4) a victim of crime, as defined in Rule 39(a), Rules of Criminal Procedure, who
wishes to be present during proceedings against the defendant.

Rule 701. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, the witness' testimony in the form
of opinions or inferences is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness' testimony or the determination of a fact in issue.


Rule 702. Testimony by Experts

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.

Rule 703. Bases of Opinion Testimony by Experts

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.

Rule 704. Opinion on Ultimate Issue

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.

Rule 705. Disclosure of Facts or Data Underlying Expert Opinion

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.


Rule 706. Court Appointed Experts

(a) Appointment. Appointment of experts by the court is subject to the
availability of funds or the agreement of the parties concerning compensation.
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.

(b) 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.

(c) Parties' experts of own selection. Nothing in this rule limits the parties in
calling expert witnesses of their own selection.


Rule 801. Definitions

The following definitions apply under this article:

(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.

(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 (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.

Rule 802. Hearsay Rule

Hearsay is not admissible except as provided by applicable constitutional
provisions, statutes, or rules.

Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial


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.



(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.



(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.



(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.



(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.



(6) Records of regularly conducted activity. A memorandum, report, record, or
data compilation, in any form, of acts, events, conditions, opinions, or
diagnoses, if:



(a) Made at or near the time of the underlying event,


(b) by, or from information transmitted by, a person with first hand knowledge
acquired in the course of a regularly conducted business activity,


(c) made and kept entirely in the course of that regularly conducted business
activity,


(d) pursuant to a regular practice of that business activity; and


(e) all the above are shown by the testimony of the custodian or other qualified
witness, or by certification that complies with Rule 902(11).


However, such evidence shall not be admissible if the source of information or the
method or circumstances of preparation indicate a lack of trustworthiness or to
the extent that portions thereof lack an appropriate foundation.



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.



(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 non-occurrence or non-existence 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.



(8) Public records and reports. Unless the sources of information or other
circumstances indicate lack of trustworthiness, 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.



(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.



(10) Absence of public record or entry. To prove the absence of a record, report,
statement, or data compilation, in any form, or the non-occurrence or
non-existence 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.



(11) Records of religious organizations. 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.



(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.



(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.



(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.



(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.



(16) Statements in ancient documents. Statements in a document in existence
twenty years or more the authenticity of which is established.




(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.



(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.



(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.



(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.



(21) Reputation as to character. Reputation of a person's character among
associates or in the community.



(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 or no
contest), 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 Government 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.



(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.



(24) Other exceptions. A statement not specifically covered by any of the
foregoing exceptions but having equivalent circumstantial guarantees of
trustworthiness, 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 purposes 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.



(25) Former testimony (non-criminal action or proceeding). Except in a criminal
action or proceeding, testimony given as a witness at another hearing of the same
or 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 a predecessor in interest, had an opportunity and similar
motive to develop the testimony by direct, cross, or redirect examination.

Rule 804. Hearsay Exceptions; Declarant Unavailable

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

(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


(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


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


(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


(5) is absent from the hearing and the proponent of a statement has been unable
to procure the declarant's attendance (or in the case of a hearsay exception
under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony)
by process or other reasonable means.


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



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



(1) Former testimony (criminal action or proceeding). Former testimony in
criminal actions or proceedings as provided in Rule 19.3(c), Rules of Criminal
Procedure.


(2) Statement under belief of impending death. In a prosecution for homicide or
in a civil action or proceeding, a statement made by a declarant while believing
that the declarant's death was imminent, concerning the cause or circumstances
of what the declarant believed to be the declarant's impending death.



(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.


(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 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.


(5) Other exceptions. A statement not specifically covered by any of the
foregoing exceptions but having equivalent circumstantial guarantees of
trustworthiness, 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 purposes 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.

Rule 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.

Rule 806. Attacking and 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.

Rule 901. Requirement of Authentication or Identification

(a) General provision. The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.



(b) Illustrations. By way of illustration only, and not by way of limitation, the
following are examples of authentication or identification conforming with the
requirements of this rule:



(1) Testimony of witness with knowledge. Testimony that a matter is what it is
claimed to be.


(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness
of handwriting, based upon familiarity not acquired for purposes of the
litigation.


(3) Comparison by trier or expert witness. Comparison by the trier of fact or
by expert witnesses with specimens which have been authenticated.


(4) Distinctive characteristics and the like. Appearance, contents, substance,
internal patterns, or other distinctive characteristics, taken in conjunction
with circumstances.


(5) Voice identification. Identification of a voice, whether heard firsthand or
through mechanical or electronic transmission or recording, by opinion based
upon hearing the voice at any time under circumstances connecting it with the
alleged speaker.


(6) Telephone conversations. Telephone conversations, by evidence that a call
was made to the number assigned at the time by the telephone company to a
particular person or business, if (A) in the case of a person, circumstances,
including self-identification, show the person answering to be the one called,
or (B) in the case of a business, the call was made to a place of business and
the conversation related to business reasonably transacted over the telephone.


(7) Public records or reports. Evidence that a writing authorized by law to be
recorded or filed and in fact recorded or filed in a public office, or a
purported public record, report, statement, or data compilation, in any form, is
from the public office where items of this nature are kept.


(8) Ancient documents or data compilation. Evidence that a document or data
compilation, in any form, (A) is in such condition as to create no suspicion
concerning its authenticity, (B) was in a place where it, if authentic, would
likely be, and (C) has been in existence twenty years or more at the time it is
offered.


(9) Process or system. Evidence describing a process or system used to produce
a result and showing that the process or system produces an accurate result.


(10) Methods provided by statute or rule. Any method of authentication or
identification provided by applicable statute or rules.

Rule 902. Self-Authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is
not required with respect to the following:

(1) Domestic public documents under seal. A document bearing a seal purporting to
be that of the United States, or of any State, district, Commonwealth, territory,
or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of
the Pacific Islands, or of a political subdivision, department, officer, or agency
thereof, and a signature purporting to be an attestation or execution.


(2) Domestic public documents not under seal. A document purporting to bear the
signature in the official capacity of an officer or employee of any entity
included in paragraph (1) hereof, having no seal, if a public officer having a
seal and having official duties in the district or political subdivision of the
officer or employee certifies under seal that the signer has the official capacity
and that the signature is genuine.

(3) Foreign public documents. A document purporting to be executed or attested in
an official capacity by a person authorized by the laws of a foreign country to
make the execution or attestation, and accompanied by a final certification as to
the genuineness of the signature and official position (A) of the executing or
attesting person, or (B) of any foreign official whose certificate of genuineness
of signature and official position relates to the execution or attestation or is
in a chain of certificates of genuineness of signature and official position
relating to the execution or attestation. A final certification may be made by a
secretary of embassy or legation, consul general, consul, vice consul, or consular
agent of the United States, or a diplomatic or consular official of the foreign
country assigned or accredited to the United States. If reasonable opportunity
has been given to all parties to investigate the authenticity and accuracy of
official documents, the court may, for good cause shown, order that they be
treated as presumptively authentic without final certification or permit them to
be evidenced by an attested summary with or without final certification.

(4) Certified copies of public records. A copy of an official record or report or
entry therein, or of a document authorized by law to be recorded or filed and
actually recorded or filed in a public office, including data compilations in any
form, certified as correct by the custodian or other person authorized to make the
certification, by certificate complying with paragraph (1), (2), or (3) of this
rule or complying with any applicable statute or rule.

(5) Official publications. Books, pamphlets, or other publications purporting to
be issued by public authority.

(6) Newspapers and periodicals. Printed materials purporting to be newspapers or
periodicals.

(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels
purporting to have been affixed in the course of business and indicating
ownership, control, or origin.

(8) Acknowledged documents. Documents accompanied by a certificate of
acknowledgment executed in the manner provided by law by a notary public or other
officer authorized by law to take acknowledgments.

(9) Commercial paper and related documents. Commercial paper, signatures thereon,
and documents relating thereto to the extent provided by general commercial law.

(10) Presumptions under statutes. Any signature, document, or other matter
declared by applicable statute to be presumptively or prima facie genuine or
authentic.

(11) Certified domestic records of regularly conducted activity. The original or
a duplicate of a domestic record of regularly conducted activity that would be
admissible under Rule 803(6) if accompanied by a written declaration of its
custodian or other qualified person certifying that the record:

(a) was made at or near the time of the occurrence of the matters set forth by,
or from information transmitted by, a person with knowledge of those matters;

(b) was kept in the course of the regularly conducted activity; and

(c) was made by the regularly conducted activity as a regular practice.

A party intending to offer a record into evidence under this paragraph must
provide written notice of that intention to all adverse parties, and must make the
record and declaration available for inspection sufficiently in advance of their
offer into evidence to provide an adverse party with a fair opportunity to
challenge them.

(12) Certified Foreign Records of Regularly Conducted Activity. In a civil case,
the original or a duplicate of a foreign record of regularly conducted activity
that would be admissible under Rule 803(6) if accompanied by a written declaration
by its custodian or other qualified person certifying that the record:

(a) was made at or near the time of the occurrence of the matters set forth by,
or from information transmitted by, a person with knowledge of those matters;

(b) was kept in the course of the regularly conducted activity; and

(c) was made by the regularly conducted activity as a regular practice.

The declaration must be signed in a manner that, if falsely made, would subject
the maker to criminal penalty under the laws of the country where the declaration
is signed. A party intending to offer a record into evidence under this paragraph
must provide written notice of that intention to all adverse parties, and must
make the record and declaration available for inspection sufficiently in advance
of their offer into evidence to provide an adverse party with a fair opportunity
to challenge them.


Rule 903. Subscribing Witness' Testimony Unnecessary

The testimony of a subscribing witness is not necessary to authenticate a writing
unless required by the laws of the jurisdiction whose laws govern the validity of
the writing.

Rule 1001. Definitions

For purposes of this article the following definitions are applicable:

(1) Writings and recordings. "Writings" and "recordings" consist of letters,
words, or numbers, or their equivalent, set down by handwriting, typewriting,
printing, photostating, photographing, magnetic impulse, mechanical or electronic
recording, or other form of data compilation.

(2) Photographs. "Photographs" include still photographs, x-ray films, video
tapes, and motion pictures.

(3) Original. An "original" of a writing or recording is the writing or recording
itself or any counterpart intended to have the same effect by a person executing
or issuing it. An "original" of a photograph includes the negative or any print
therefrom. If data are stored in a computer or similar device, any printout or
other output readable by sight, shown to reflect the data accurately, is an
"original".

(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as
the original, or from the same matrix, or by means of photography, including
enlargements and miniatures, or by mechanical or electronic rerecording, or by
chemical reproduction, or by other equivalent technique which accurately
reproduces the original.


Rule 1002. Requirement of Original

To prove the content of a writing, recording, or photograph, the original writing,
recording or photograph is required, except as otherwise provided in these rules
or by applicable statute or rule.


Rule 1003. Admissibility of Duplicates

A duplicate is admissible to the same extent as an original unless (1) a genuine
question is raised as to the authenticity of the original or (2) in the
circumstances it would be unfair to admit the duplicate in lieu of the original.


Rule 1004. Admissibility of Other Evidence of Contents

The original is not required, and other evidence of the contents of a writing,
recording, or photograph is admissible if--



(1) Originals lost or destroyed. All originals are lost or have been destroyed,
unless the proponent lost or destroyed them in bad faith; or



(2) Original not obtainable. No original can be obtained by any available
judicial process or procedure; or



(3) Original in possession of opponent. At a time when an original was under the
control of the party against whom offered, the party was put on notice, by the
pleadings or otherwise, that the contents would be a subject of proof at the
hearing, and the party does not produce the original at the hearing; or



(4) Collateral matters. The writing, recording, or photograph is not closely
related to a controlling issue.

Rule 1005. Public Records

The contents of an official record, or of a document authorized to be recorded or
filed and actually recorded or filed, including data compilations in any form, if
otherwise admissible, may be proved by copy, certified as correct in accordance
with Rule 902 or testified to be correct by a witness who has compared it with the
original. If a copy which complies with the foregoing cannot be obtained by the
exercise of reasonable diligence, then other evidence of the contents may be
given.

Rule 1006. Summaries

The contents of voluminous writings, recordings, or photographs which cannot
conveniently be examined in court may be presented in the form of a chart,
summary, or calculation. The originals, or duplicates, shall be made available
for examination or copying, or both, by other parties at a reasonable time and
place. The court may order that they be produced in court



Rule 1007. Testimony or Written Admission of Party

Contents of writings, recordings, or photographs may be proved by the testimony or
deposition of the party against whom offered or by that party's written admission,
without accounting for the nonproduction of the original.


Rule 1008. Functions of Court and Jury

When the admissibility of other evidence of contents of writings, recordings, or
photographs under these rules depends upon the fulfillment of a condition of fact,
the question whether the condition has been fulfilled is ordinarily for the court
to determine in accordance with the provisions of Rule 104. However, when an
issue is raised (a) whether the asserted writing ever existed, or (b) whether
another writing, recording, or photograph produced at the trial is the original,
or (c) whether other evidence of contents correctly reflects the contents, the
issue is for the trier of fact to determine as in the case of other issues of
fact.


Rule 1101. Applicability of Rules

(a) Courts and magistrates. These rules apply to all courts of the State and to
magistrates, and court commissioners and justices of the peace, masters and
referees in actions, cases, and proceedings and to the extent hereinafter set
forth. The terms "judge" and "court" in these rules include magistrates, court
commissioners and justices of the peace.

Rule 1103. Title

These rules may be known and cited as the Arizona Rules of Evidence.