Evidence

Relevance?
If not, inquiry ends
If so, any exclusions (403, 407-412)?
Is it subject to limitations (404-406, 412)?
Or specifically and affirmatively permitted (sex abuse etc.) (413-415)?
If relevant and no exclusion, hearsay?
If so, is it not hearsay or under an exception?
Watch out for hearsay w/in hearsay e.g. someones statement w/in someone
elses statement
If passes muster under relevance & hearsay, is there a confrontation clause issue?
ONLY IN CRIM CASES
Core confrontation right may trump Rules
If nontestimonial evidence, authentication? Includes voice ID, phone conversation
Is it a writing, recording, or photo? See best evidence rule: original or good reason
why not.
Is it opinion evidence?
If so, is it lay or expert?
If lay, does it fit requirements of 701?
If expert, has expert been qualified? Follows PETA?
Procedures
If objection or proffer, was it timely?
If objection, was it specific?
Any chance the objection was waived?
Was there a motion in limine? Result?
(Preserving for appeal)
Witnesses:
Competence?
Credibility?
Cross exam and impeachment
If attacked, was attack proper?
Contradiction
Privilege available?
Burdens:
Who has burden of production/persuasion?
Is a presumption in play?
If so, did burden of production/persuasion shift?
If so, was that burden met?
Policies
Why
Why
Why
Why
Why

we
we
we
we
we

have evidence
dislike hearsay
have burdens
have presumptions
require authentication

I. RELEVANCE (401)
IS

IT RELEVANT?

What fact is it offered to prove?

Does it tend to make existence of consequential fact (identity, intent, motive)
more or less probable?
Is it material (logical connection with the consequential facts or the issues)?
KINDS OF RELEVANCE:
Direct or circumstantial
Circumstantial: the more steps in chain of inference, the less probative
Conditionally relevant (requires 104b)
IF RELEVANT, ADMISSIBLE (402) UNLESS FITS UNDER AN EXCLUSION (407-11;
403):
Subsequent remedial measures
Settlement offers or offers in compromise
Payment of medical expenses
Pleas
Insurance
Discretionary exclusion: 403
Is probative value outweighed by unfair prejudice, confusion, waste of
time, cumulative, [social policy]?
Exclusion of character evidence, 404
404a: Character evidence cant be offered to prove propensity, UNLESS
accused offers own character traits, or attacks witness character OR unless
character is an element of crime/claim/defense
404b: Evidence of other crimes, wrongs or acts not admissible to prove
character of person in order to show conformity therewithBUT OK IF ITS
TO SHOW:
Proof of motive
Identity
Opportunity
Absence of mistake
Intent
Context
Preparation/plan
State of mind
Knowledge
If character evidence is admissible, is the method appropriate?
405a: Proof of character may be made only by opinion or reputation
testimony; see 608a
405b: Specific instances only available on cross (608b) OR unless character
is an element of crime/claim/defense
Habit and routine practice is NOT character evidence, IS admissible (406)
Past sexual behavior in sexual assault cases is subject to special rules
412a: past sexual behavior evidence is generally inadmissible
412b: exceptions:
CRIMINAL: specific instances of sexual behavior by the alleged V
offered to prove that a person other than the accused was source of
semen, injury, or other physical evidence;
specific instances of sexual behavior by the alleged V with respect to the
person accused of the sexual misconduct offered by the accused to prove
consent or by the prosecution; and
evidence the exclusion of which would violate the constitutional
rights of the .

CIVIL: sexual behavior or sexual predisposition of alleged V if otherwise

admissible under the rules and probative value substantially outweighs
danger of harm to any V and of unfair prejudice to any party (i.e. not
ruddy likely).
Very specific rules about how to offer such evidence
413-415: evidence of the s prior sexual misconduct is expressly
admissible in criminal prosecution or civil action for sexual assault or child
molestation
Note this could still be excluded under 403
Is the evidence excludable due to privilege?
Attorney-client
Priest-penitent
Spousal (Testimonial (privilege vests in both) and confidential (during
marriage only))
Maybe psychotherapist
Maybe journalist
IF RELEVANT, II. IS IT HEARSAY? (801 ET SEQ.)
OUT OF COURT STATEMENT OFFERED IN EVIDENCE TO PROVE TRUTH OF MATTER
ASSERTED (801C)
Oral, written, or nonverbal conduct intended as assertion (801a)
If not offered for its truth or not an assertion, not hearsay. Examples:
Impeachment (see below)
Verbal acts (ex. contract-like statements (offer, acceptance)) 801c
Effect on listener or reader
Verbal objects (ex. trademark, luggage tag)
Circumstantial evidence of state of mind of hearer or declarant
Circumstantial evidence of memory or belief
Assertions may be offered for another truth. E.g. person X said this at a time
when person X is contended to have been dead. The point: not whether X
said it, but whether X was alive.
Nonverbal reactions may not be intended as assertions (scream, cry)
Silence may be hearsay
IF IT IS HEARSAY, IT IS NOT ADMISSIBLE UNLESS IT IS:
NOT HEARSAY UNDER 801D
1) Prior statements by currently testifying witness and
Inconsistent statements, if made under oath
Consistent statements, if made prior to a motive to fabricate
Identification
Lies are usually not hearsay
Machines/animals not hearsay
2) Admission by party-opponent (contrast with 613) and:
Partys own statement as self or representative
Statement adopted by party
Authorized persons statement
Agents statement during course of agency
Statement by co-conspirator during course of and in furtherance of
conspiracy
OR AN EXCEPTION BECAUSE WE PRESUME TRUSTWORTHINESS (803):

Present sense (lapse of time

matters; personal knowledge
necessary)
Excited utterance (must still be
under stress of event)
Existing condition (use to show
present intent to future conduct;
must be forward looking)
Statements for purpose of medical
diagnosis and/or treatment
Recorded recollection (contrast
with refreshing, 613)
Business records (records
custodian may testify). Need:
Generated as part of regular
business activity
Info transmitted by a person
with knowledge
Regular practice to make
record
Contemporaneous made
at/near time of event
Absence of entry in business
records

Public records
Vital stats records
Absence of public records
Records of religious organizations
Marriage, etc. certificates
Family records
Records of documents affecting an
interest in property
Statements in documents affecting
an interest in property
Ancient documents
Market reports
Learned treatises
Reputation as to family or personal
history
Reputation concerning boundaries
or general history
Reputation as to character (see
405(a))
Judgment of previous conviction
Judgment as to person, family, or
general history or boundaries

OR AN EXCEPTION BECAUSE OF NECESSITY (DECLARANT MUST BE UNAVAILABLE)

(804):
Unavailability can be on privilege, refusal to testify, claim of lack of memory, dead
or sick, not reachable
Former testimony if witness was under oath, opportunity & motive to cross
examine
Dying declaration
Against interest
BUT if exculpatory of , need corroboration

Personal family history

Forfeiture by wrongdoing
OR

(807):
Offers a material fact; more probative than other evidence; and in the interests of
justice
Must meet firmly rooted guarantees of trustworthiness (i.e., be a common law
hearsay exception)
Must be made known to adverse party in advance
Corroborating evidence may be used to satisfy the interests of justice reqt

IT FALLS UNDER THE CATCHALL EXCEPTION

III. IS THERE A CONFRONTATION CLAUSE ISSUE? [ONLY IF CRIMINAL CASE]

ROBERTS/CRAWFORD ISSUE REGARDING ADMISSION OF PRIOR TESTIMONY THAT HAS
PASSED VIA A HEARSAY EXCEPTION :
Roberts: produce declarant or show unavailability and meet the firmly rooted
requirement
Crawford: if the evidence is testimonial:
But otherwise fits a hearsay exception, it is barred by the CC unless
declarant is unavailable AND had prior opportunity to cross [nothing
about motive]
However, testimonial is OK to admit for purposes other than proving truth
of assertion (impeachment)
Absolute bar to testimonial statements; query whether may be applied to
non-testimonial as well
IV.

IS

THE WITNESS COMPETENT TO TESTIFY (601)?

JUDGES DECIDE COMPETENCY AS 104A QUESTION SINCE FRE
PRESUMPTION OF COMPETENCE (601); OLD COMMON LAW EXCEPTIONS ARE GONE

Jurors, lawyers in case may not testify

Children [below a certain age] may not testify [check p 361 of Rules] (?)
ELEMENTS OF COMPETENCY (602)
Personal knowledge/foundation for testimony required
Ability to observe, to remember, and to narrate
REQUIREMENT THAT WITNESS SWEAR OR AFFIRM (603)

V.
IS THE WITNESS CREDIBLE? IMPEACHMENT (607-ET SEQ.)
CREDIBILITY (607): BIAS/ PREJUDICE/INTEREST: ANY PARTY MAY ATTACK ON
THESE GROUNDS
CHARACTER EVIDENCE (COMPARE TO 404)
GENERAL

608(a): Character witnesses can offer opinion & reputation only; must lay
foundation of acquaintance
608(b): Specific non-conviction misconduct: permitted on cross if it bears on
truthfulness (evidence does not come in for its truth)

However, no extrinsic evidence unless it comes in under 404b (specific

limited purposes)
Collateral issues can never be proved by extrinsic evidence
PRIOR CONVICTIONS (COMPARE TO 404) (609). ON CROSS, MAY ASK ABOUT:
609(a):
(1) Convictions for crimes punishable by death/imprisonment >1yr,
but for witnesses other than crim , admissibility is subject to 403; such
convictions can be used to impeach crim only where probative value outweighs
prejudicial effect (reverse 403 b/c it favors exclusion), and
(2) Convictions for either felonies or misdemeanors involving dishonesty or
false statement.
Note similarity of crimes weighs against admission: too prejudicial
LIMITATIONS ON 609:
(b): 10yr time limit; presumes older convictions are excludable.
(c): no use of convictions to impeach where rehabilitation (pardon, annulment,
certification) if there have been no later felony convictions or where formal
procedure concluded innocence.
(d): youthful brushes w/ law of generally inadmissible.
(e): permits cross on convictions despite pendency of appeal.
610 RELIGIOUS BELIEFS OR OPINIONS NOT ADMISSIBLE TO SHOW CREDIBILITY
612 WRITING USED TO REFRESH MEMORY (CONTRAST WITH PAST RECOLLECTION
RECORDED 803(5))
Not shown to jury; idea is that having been refreshed, witness will now testify
from present memory; available for perusal by opposing counsel
613 (A)PRIOR STATEMENTS OF WITNESSES -- DONT HAVE TO SHOW TO WITNESS WHEN
EXAMINING; BUT
(B) CANT USE EXTRINSIC EVIDENCE OF PRIOR INCONSISTENT UNLESS W GETS CHANCE
TO EXPLAIN OR DENY, OPPOSING GETS TO INTERROGATE WITNESS ON IT
NB this does not apply to admissions of party opponent 801d2
Opinion testimony
Best evidence 1002
Authentication: 901
Burdens, presumptions