The Arizona Rules of Evidence: A Complete Overview

What are the AZ Rules of Evidence?

The Arizona Rules of Evidence, with the exclusion of Article 4, apply in all actions and proceedings of all courts of record of the state of Arizona and of all courts not of record of the state of Arizona only to the extent that a judge of such a court in his discretion may determine that the rules are of particular application and that adherence to them from a practical point of view may satisfactorily be omitted. The Arizona Rules of Evidence are designed to maintain, in all tribunes, an atmosphere of openness, fairness and impartiality. An important aspect of that objective is the exclusion of irrelevant, confusing and prejudicial evidence and the rigid, uneven regulation of its admission. The drafters believe it appropriate that the same objective of impartiality be general in effect, no matter what the nature of the particular proceedings or the method employed to adjudicate them (e.g., jury, court, letter, trial, etc.). The Arizona Rules of Evidence seek to implement that philosophy.
The Arizona Rules of Evidence apply to civil and criminal proceedings but do not apply to several types of proceedings, where the judiciary has determined that other procedures may obviate the need for admissibility of evidence rules. The following are excluded from the scope of the Arizona Rules of Evidence:
Ariz. R. Evid., Rule 101.
The Arizona Rules of Evidence also do not apply with equal force to all hearings. For example, evidentiary rules generally do not apply to pre-trial hearings, such as discovery hearings or hearings conducted under Rules 32.1 or 32.3 of the Arizona Rules of Criminal Procedure. This is because the drafters believe that the purpose of such hearings is not to decide ultimate issues, and thus, formal rules of evidence are unnecessary in order for a judge to make a determination. Ariz. R. Evid., Rule 104.
Similarly, rules concerning a witness’ competency to testify do not apply to preliminary hearings. This is because such hearings do not require testimony to be accepted into evidence, because they are merely conducted in order to determine whether probable cause exists. Ariz. R. Evid., Rule 104.
Additionally, rules concerning hearsay do not apply to grand jury proceedings, because grand juries enjoy greater freedom to consider hearsay testimony than trial juries do. Ariz. R. Evid., Rule 1101.
To the extent that the Arizona Rules of Evidence do not provide governing procedure with regard to a specific evidentiary issue, the Arizona Rules of Evidence shall not be construed to supersede statutory rules or other court rules not inconsistent with the Arizona Rules of Evidence, except when an error or inconsistency results from an amendment to the rules promulgated by the Supreme Court of Arizona. See Ariz. R. Evid., Rule 1101.
The Arizona Rules of Evidence are not an exact copy of the Federal Rules of Evidence. The drafters exempted a few problematic federal rules from inclusion into the Revised Rules in order to prevent confusion and complications. For example , the Arizona Rules of Evidence are not designed to create standards for the determination of the various issues specific to capital punishment. Issues of death penalty procedures, such as competency to waive counsel or testify for the prosecution, confession issues, and the exclusion of evidence, are governed not by the Federal Rules of Evidence but by case law and Title 13, Chapter 71 of the Arizona Revised Statutes. Ariz. R. Evid., Rule 101. The Revised Rules also omit from the scope of their operation Federal Rules 501 and 502, Rule 705, Rule 406, Rule 712(2), and Reverse Waiver Rule 819(a).
The drafters of the Arizona Rules of Evidence also made slight adaptations to the Federal Rules of Evidence in order to bring the Federal Rules in line with existing Arizona practice. For example, the Federal Rules of Evidence allow for the release of witnesses from the courtroom after testifying so that the witness does not influence other witnesses’ testimony. However, under existing Arizona practice, absent a criminal situation or special circumstances, such as a witness being a victim of a brutal crime who might be frightened into not testifying, a witness should not be sequestered. Ariz. R. Evid., Rule 615. Another provision of the Federal Rules of Evidence adapted to Arizona is Federal Rule 611(c), which provides that leading questions should not be used on direct examination. The Revised Rules adopted the Federal Rule but modified the Federal Rule’s exception for cases of hostile witnesses, thereby expanding the circumstances under which leading questions can be used on direct examination. Ariz. R. Evid., Rule 611. For example, the Revised Rules provide that leading questions may be allowed on direct examination if necessary to develop the witness’s testimony. Ariz. R. Evid., Rule 611.
One more subtle adaptation the Arizona drafters made to the Federal Rules is in adopting Federal Rule 801(d)(2)(iv), the theory known as "admission by party opponent," and adopting it as Rule 801(d)(2)(A). The theory underlying this new rule is that when an agent makes an admission, the principal cannot later deny liability. Arizona modified the Federal version of the rule so that it applies only to cases where the statement is offered against the opposing party. Arizona also eliminated the "personal knowledge" requirement as a necessary element to the admissibility of an admission. Ariz. R. Evid., Rule 801.
The Arizona Rules decided to follow the Federal Rules broadly so as to promote consistency and uniformity between the Arizona federal courts and state courts. The drafters of the Revised Rules thought it would benefit Arizona trial judges, advocates, and litigants to have their courtroom practices consistent within the state and similar to those in the federal courts.

Rules for Admissibility in AZ Evidence

When it comes to the admissibility of evidence in an Arizona court, there are three main criteria that the evidence must meet. First, the evidence has to be considered relevant to the case at hand. The second is that the evidence is material. The final criterion is that the evidence is reliable.
When evidence is considered to be relevant, it will make it easier for the jury to draw a conclusion about the case. For example, evidentiary materials such as oral statements and documents will be considered relevant if they will help the court to reach a conclusion about the case.
In addition to being relevant, the documents must also be material. When something is material, it means that it will have a bearing on a case. It must affect the case in a significant and important way. For instance, potentially unreliable pieces of evidence can be considered material despite not being relevant to the case.
Finally, the evidence also must be reliable. This means that the information must be considered trustworthy whether it’s from witnesses, documents, objects or other sources. If this information isn’t reliable in some way, the jury will be less likely to give it much attention. It’s generally thought that the jury will disregard any type of evidence that isn’t reliable in one way or another.
The jury will often consider the factors of relevance, materiality and reliability when it is trying to decide on the admissibility of the evidence. It’s not uncommon for the jury to lose track of an important fact if it doesn’t appear to be relevant and it’s also not likely that what appears to be a small matter will be given due attention by the jury if the topic isn’t material. Evidence that isn’t reliable will generally not be remembered by the jury at all.
Overall, the three criteria for admissibility are integral to the way that the case is perceived and handled by the court.

Hearsay Under Arizona Evidence

Hearsay is one of the most frustrating legal issues in criminal defense. As you might expect, the prosecution will try to get all sorts of out-of-court statements into evidence. You should be ready to object to the prosecution’s motion or to the judge’s ruling in such cases.
The general rule is that hearsay is out, like a witness you didn’t name before trial (Arizona has a lot of these, called Rule 15 disclosures). The hearsay rule is complex, but the core idea is that the witness must be in the courtroom to testify. Arizona’s key definitions of hearsay are found in its Evidence Rules 801, 802, and 803, and the key exceptions are in 804 – but we can’t even start there until we’re comfortable with the definitions.
Rule 801(a) defines hearsay as "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." So, really, it seems as if you could just skip to the rest of the rules at the earliest opportunity. However, 801(b) gives us more information by excluding certain types of testimony from our definition of hearsay. Some of these are pretty intuitive and aren’t really worth worrying about. For example, really, have you ever seen a court reporter jump up and say something on the stand? I bet not. But other exceptions are more useful for trial strategy.
For instance, if someone wasn’t involved in your case but had a convincing reason to know what happened, his or her testimony can still be admissible under Media, Inc. v. Klein, 187 Ariz. 250 (1996) even though the witness wasn’t talking about the same thing as a party to the action. That doesn’t mean you have to allow the testimony to come in, though- call that person to the stand yourself and test their credibility about what they saw. Of course, that means you may inadvertently open the door to other kinds of testimony or evidence that would otherwise be barred from trial. Beware the dangers of being too helpful.
You’ll want to make sure every time one of these situations comes up that you’re looking closely at 803. More exceptions for admissible testimony but with far less time to prepare. And that makes your objection to the prosecution’s motion that much easier to win on appeal. Plus, there are so many of them, I’m not even going to list them here. Consider that each of these exceptions has its own subsection after 803: 803(1) to 803(24)! Go right on down the list. 801(d) recaps the last rule then provides for testimony from a party opponent or the victim (since we’re talking criminal defense).
Finally, if you lose the rule that lets in the testimony because it’s an exception to hearsay, you still have Rule 804 to deal with. That’s pretty simple when it comes down to it. You can use testimony of someone who is unavailable and rule that testimony does not meet the hearsay definition because there is both religious privilege (803(3)) and marital privilege (803(5)) exceptions + one freestanding exception to hearsay, the residual exception (803(24)). Now, we get into some devilishly creative uses of hearsay rules- remember context. That’s what can break these rules and help you win in court.

Privilege and Protection Laws

Privilege law – This article will examine the elements of the attorney client privilege as well as other protections against the disclosure of confidential information and the waivers that might arise under certain circumstances:
This article will examine the concept of privileged communications under the Arizona Rules of Evidence. Privilege has been defined as: "the right of a client or witness to refuse to furnish information in a legal proceeding which would otherwise be available to the other parties."
Privilege can be any reason based upon public policy which insulates a person from having to furnish information which society deems unnecessary or harmful. The basic notion is to protect confidential information from revealing secrets that would undermine the proper administration of justice. Four major areas of protection involve rules found in Rules 502 to 506 of the Arizona Rules of Evidence: the attorney client privilege; the psychiatrist patient and psychologist patient privilege; the spousal privilege; and the physician privilege. The attorney client privilege allows clients and their attorneys to keep confidential all matters communicated between each other so long as the information relates to legal turbocharged matter. Arizona Rule of Evidence 502 (A). The purpose of the rule is to promote the exchange of confidential information between client and attorney. See State v. Davis, 160 Ariz. 270, 772 P.2d 569 (1989). The privilege belongs to the client as well as the attorney. State v. Williams, 139 Ariz. 20 (1984). Waiver can happen through disclosure or by committing a legal wrong toward someone in reliance on the confidentiality.

The Arizona Rules for Expert Testimony

When it comes to expert testimony, Arizona courts adhere to the "general acceptance" standard found in Frye v. U. S., 54 App. D.C. 46 (D.C. Cir. 1923) (cited in Ariz. R. Evid. 702, Advisory Comm’n Note). Under this standard, expert testimony is admissible if the subject matter has achieved "general acceptance" in the relevant scientific community. Otherwise, the testimony is inadmissible. Kimball v. Sciera, 116 Ariz. 582, 584 (App. 1977). But Frye does not apply to "generally accepted" methods applied by the expert when those methods are not themselves "new or novel." See Ariz. R. Evid. 702, 703, A.2d Comm. Note.
As the Advisory Committee Note to Rule 702 recognizes, however, the Frye test has been "generously interpreted." See Ariz. R. Evid. 702, Advisory Comm’n Note. It is not uncommon for courts in Arizona to allow expert testimony, if the scientific technique is generally accepted, even when the scientific technique itself is novel or new. See id. The Frye standard’s broad application may be attributed to the fact that it can be used in combination with the evidence balancing test in Rule 403. See id . In other words, even if an expert testifying on a new or novel scientific technique fails to meet the requirements of the Frye test, courts may still admit the expert under the balancing test in Rule 403 if its probative value is not substantially outweighed by its prejudicial effect.
The Arizona Supreme Court has held that the Frye test applies, not only to scientific, technical or specialized knowledge, but also to matters within the common experience of average persons. State v. Lindsey, 154 Ariz. 462, 465-66 (1987). Thus, Frye has been applied to matters such as experimental use of a controlled substance, State v. Stewart, 140 Ariz. 580 (1984); polygraph examination, State v. Spears, 118 Ariz. 622 (1978); immunoassays in rape cases, State v. Roark, 173 Ariz. 228 (1992); and the technique of identifying telephone numbers from long distance service providers in view of the inherent unreliability of the data, State v. Manners, 184 Ariz. 52 (1995). But Frye does not apply where the "second doctor" merely relies on the theoretical construct of another doctor. See State v. Prince, 146 Ariz. 511 (1985).
The Frye standard also does not apply to testimony which is merely "lay" in character. See State v. Kelly, 115 Ariz. 58 (1977). Nor does it apply to matters of common experience of average persons. Id.

Recent Changes and Modifications

The Arizona Supreme Court’s rule devices allow for public comment and feedback on upcoming proposed amendments. With the ever-changing legal environment, revisions are necessary to stay aligned with federal rules and to fortify fairness and uniformity. After review, the court submits the amendments to the legislature for further examination. The legislature can approve, reject or modify the amendments. Following this examination, the amended rules are promulgated by the court in July and published officially on January of the following year. This means that legislative changes to the Arizona Revised Statutes are not effective until that January.
On October 18, 2017, the Arizona Supreme Court formally accepted new amendments to the Arizona Rules of Evidence proposed April 26, 2017. The original rule changes were considered on technical grounds by the Supreme Court. The focus of these modifications is to make more compatible the Arizona Rules of Evidence with the Federal Rules of Evidence and to provide increased uniformity with other state rules.
Several notable amendments were made to Rules 702 through 706. Rules 702 through 705 explicitly states the qualifications for admissible expert testimony, allowing judges discretion to assess whether there is sufficient and reliable data and methodology available that is sufficiently reliable and fits the circumstances of the case. Rule 704(b) no longer states that an expert witness may not indecently infer the mental state or condition of a defendant in a criminal case (such as insanity). Instead, it is now permissible, and the court can make the determination if the proffered expert opinion is ultimately proper.
Rule 703 and its Comments now contain a provision which states that an expert may relate the data or facts, on which an expert’s opinion is based, in the form of inadmissible information, but may only be used as support for the admissible facts or data underlying the expert’s opinion. The comments go on to state that this is primarily designed to allow the expert to relay the data or facts underlying the expert’s opinion to the jury and clarify that the expert may use inadmissible evidence to formulate an opinion. The intent of the amendment is to promote reliable expert testimony, while not giving the jury a means of discovering information that is otherwise inadmissible.
Another major change to the Arizona Rules of Evidence was the incorporation of the Daubert standard into the comments of Rule 702 and 703. The comment says that scientific evidence should satisfy the Daubert standard only and that the Frye standard will no longer apply in Arizona.
The Arizona Supreme Court, along with the Advisory Committee on Rules, has worked hard to keep Arizona laws flexible with the hope of increasing uniformity with rules of other jurisdictions. These amendments clarify any interpretations of the rule to bring consistency to Arizona rule law and procedural rules.

The Influence of Evidence Rules on Litigation Outcomes

It is not hard to imagine a scenario where the way evidence is presented at trial makes the difference in a verdict. From hearsay to expert witnesses to the admissibility of photographs or an alleged confession by the defendant, how evidence can be presented at trial and what evidence is admissible greatly affects the outcome of cases.
If a judge makes the wrong decision about the admissibility of evidence the jury might never hear key evidence. Application of the "hearsay rule" is often problematic. Many people think of hearsay as "gossip" as in "hearsay on the street." But in the legal sense of the word hearsay means a statement made by someone outside of court or out-of-court that is being offered as truth. How many times have you heard a witness say something to this effect: "I heard so-and-so say such-and-such." That qualifies as hearsay and if it is being offered to prove the truth of what was just said it is testimony that is inadmissible for truth unless it falls within an exception in the rules of evidence.
As to expert testimony, the judge will make a gate keeping determination before he or she admits the opinion of the expert into evidence at trial. The judge must be satisfied that the expert’s theory of their opinion is scientifically reliable. The lawyer seeking to present the expert’s opinion into evidence must demonstrate that the methodology used by the expert is generally accepted in the scientific community.
In the landmark case of Frye v. U.S. a lie-detector test was sought to be introduced into evidence. Although lie detector tests had been "generally accepted" by the scientific community as reliable, the Frye court held that as of that date, 1923, such reliability was not established in murder trials. Accordingly , because there was no established general acceptance of the lie detector test in murder cases the court would not allow the evidence into testimony. Frye was the starting point for the gate keeping, reliability requirement of expert testimony. Later, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the court refined the Frye test to require an expert witness’s scientific testimony be relevant and based on reliable scientific methods before it could be admitted into evidence. In Arizona, the Frye test has been codified into A.R.E. Rule 702 and interpreted by courts and judges.
Recently in an Arizona case, State v. Smith, the court addressed what happens when a witness violates the sequestration order protecting other witnesses while not testifying. A witness is sequestered from the courtroom. Alone and outside the presence of the jury, the witness is instructed by the judge not to discuss the facts of the case unless they are testifying. In Smith, the judge ordered an exhibit be displayed to the jury while the last witness was testifying but forgot to sequester the next witness before he took the stand and began to testify. The next witness saw the exhibit. Later the defense moved for mistrial arguing the witness could not unsee what he had seen. On appeal, the conviction was reversed and the case remanded for new trial. The court looked to the "witness exclusion rule" found in A.R.E. Rule 615. The witness could not unsee what he had seen and was prejudiced by not being sequestered. The appeal court ruled that the defendant’s right to a fair trial was violated.
Remember, there are 37 Rules of Evidence from the admission of evidence to the hearsay rule to expert witness testimony. The Arizona Rules of Evidence are available on-line. It is best to let an experienced superior court litigation attorney guide the way through the quagmire of legal rules regarding evidence at trial.