Surprise is not recognized as a grounds for exclusion in the federal rules,{footnote} [4005]  See Advisory Comm. Notes to FRE 403; United States v. DiPasquale, 740 F.2d 1282 (3d Cir. 1984).{/footnote} as it is in some states. It was felt by the drafters of the federal rules that between the liberal availability of discovery and the use of continuances, courts should have no reason to exclude surprise evidence.{footnote}FRE 403 (Advisor Committee Notes).  See also F & S Offshore, Inc. v. K.O. Steel Castings, Inc., 662 F.2d 1104 (5th Cir. 1981).

See also, e.g., United States v. Caudill, Nos. 89-3522 etc. (10/4/90 7th Cir.) (inclupatory tape recording discovered during trial properly admitted; no continuance requested or prejudice shown).{/footnote}  Nevertheless, at least one federal circuit court has held that surprise may justify a new trial.{footnote}Conway v. Chemical Leaman Tank Lines, Inc., 687 F.2d 108 (5th Cir. 1982).{/footnote}  A film discovered to exist during trial has been held properly excluded due to the prejudice caused the adverse party.{footnote} [4008]Saturn Mfg. Co. v. Williams Patent Crusher & Pulverizing Co., 713 F.2d 1347 (8th Cir. 1983).{/footnote}

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EXHIBITS; WITNESSES.  On failure to list films as exhibits, see VIDEOTAPES AND FILMS–Failure to List As Exhibits.