RELEVANCE: (FRE 401, 403)

1. Is the piece of evidence logically relevant? Does it have any tendency to make the fact more or less likely? Does it advance a chain of
interferences? [FRE 401]
a. If NO, the evidence is inadmissible
b. If YES, go to step 2
i. Makes a fact more or less probable than it would be w/o the evidence; AND (Dominguez)
ii. Fact is of consequence in determining the action
 Advance a chain of inferences (Knapp) (Larson)
 Conscience of guilt (Dominguez)
 Aid jury in evaluation (Larson)
2. Does the evidence pass FRE 403 balancing, such that the probative value is not significantly outweighed by fair prejudice, distraction,
confusion, or waste of time? [FRE 403]
a. If NO, the evidence may be excluded by the TJ. However, this is a highly discretionary decision by the TJ and should not necessarily stop
here.
i. Unfair prejudice:
 Would prevent jury from reasoning to just verdict
 Must be worse than harmful–all evidence is harmful to one side (McRae)
 Admissible if related to nature of crime to aid jury in understanding crime (Mehanna). BUT, if the past crime that is similar in
nature to current crime, highly prejudicial (Old Chief)
ii. Confusing the issues:
 Shifting focus of trial away from issue of the case (Noreiga)
 Suggesting that law is not settled (Flirtcraft)
iii. Misleading the jury (Abernathy)
iv. Undue Delay
v. Wasting time
vi. Needlessly presenting cumulative evidence
b. If YES, continue to step 3 [character evidence + habit rules]

CHARACTER EVIDENCE & HABIT: (FRE 404, 608)

3. Is the evidence propensity evidence? [Is the evidence of a person’s character (trait) not admissible to prove that on a particular occasion, the
person acted in accordance w/ the character or trait?] [FRE 404(a)]
a. If NO, go to step 5
b. If YES, go to step 4
4. Does the evidence fall under any of the exceptions to the propensity rule?
 In both civil & criminal cases:
o A witness’s tendency to be untruthful (FRE 608)
o A witness’s past convictions to show her disdain for abiding by social rules (FRE 609)
 In criminal cases only:
o A pertinent character trait of the accused offered by D himself, and the prosecutor’s evidence to rebut it (FRE 404(a)(2)(A))
 D may offer evidence of his own pertinent trait, and if the evidence is admitted, the pros may offer evidence to rebut it
o A pertinent character trait of the accused where the accused raised that particular trait of the victim (FRE 404(a)(2)(B)(ii))
 D may offer evidence of the victim’s pertinent trait, and if the evidence is admitted, the pros may offer evidence of D’s same
trait
o A pertinent character trait of the victim offered by the accused (except in cases of rape) and the prosecutor’s evidence to rebut it
(FRE 404(a)(2)(B)(i))
 D may offer evidence of the victim’s pertinent trait, and if the evidence is admitted, the pros may offer evidence to rebut it
o The accused’s sexual propensities in rape and molestation cases (FRE 413, 414)
o A homicide case where the accused contends that the victim was the first aggressor (FRE 404(a)(2)(C))
 In a homicide case, pros may offer evidence of the victim’s trait of peacefulness to rebut evidence that the victim was the
first aggressor
a. If NO, it is impermissible character evidence, and inadmissible
b. If YES, it is admissible.
i. Proof of propensity, when admitted subject to an exception, is generally restricted to reputation and opinion evidence. Specific
instances may only be inquired into on cross-examination (FRE 405(a)).
ii. However, for sexual predisposition under FRE 413-414, extrinsic evidence of specific instances is allowed
5. If the evidence is not being used for propensity, is it being used for “another [non-character] purpose,” such as motive, knowledge, or
opportunity? [FRE 404(b)(2)]
a. If NO, go to step 6
b. If YES, the court must conduct FRE 403 balancing test, and should exclude the evidence if the unfair prejudice of the character use
substantially outweighs the probative value of the other purpose.
6. Is this one of the very rare circumstances when character is “in issue” and specific-incident evidence of character is admissible under FRE
405(b) as direct evidence of character (because the trait or character is an essential element of the claim, crime, or defense)?
a. If NO, go to step 7
b. If YES, double check your answer. Very few types of modern cases (all of them civil) put character in issue. If you are sure, it is admissible
and specific instances may be used to prove the character in issue.
7. Does the evidence involve semiautomatic, routinized HABIT behavior that is not likely to generate unfair prejudice? [FRE 406]
a. If NO, it is not admissible as habit
b. If YES, it is admissible as habit
8. Is this a civil case where P wishes to introduce evidence of D’s remedial measure to prove negligence/culpability? [FRE 407] (subsequent
remedial measures)
a. If NO, go to step 9
b. If YES, FRE 407 will exclude evidence of remedial measures taken after the event, but remedial measures offered for another controverted
purpose, such as ownership or feasibility of repair, is admissible. Go to step 13.
9. Does the evidence relate to the validity or amount of a disputed claim and arise out of a compromise, offer to compromise, or surrounding
statements in a civil case where there is a genuine dispute as to validity or amount? [FRE 408] (civil settlements)
a. If NO, FRE 408 will not exclude the evidence; go to step 10
b. If YES, FRE 408 will exclude the evidence unless it is either offered for another purpose or it involves a claim made to a public office or
agency being brought in a subsequent criminal case. Go to step 10
10. Does the evidence arise out of payment of medical or similar expenses? [FRE 409] (medical payments)
a. If NO, go to step 11
b. If YES, FRE 409 will exclude the evidence, but surrounding statements are not covered by this rule. Go to step 13.
11. Does the evidence arise out of a guilty plea or negotiations with the prosecuting attorney? [FRE 410] (criminal Settlements)
a. If NO, FRE 410 will NOT exclude the evidence. Go to step 13
b. If YES, it is inadmissible unless D agreed to waive the exclusionary provision of FRE 410. Go to Step 14
12. Does the evidence concern liability insurance offered to prove whether a person acted negligently or otherwise wrongfully? [FRE 411] (liability
insurance)
a. If NO, FRE 411 will not exclude evidence offered for another purpose, such as proving agency, ownership, control of an item, or
demonstrating bias or prejudice of a witness. Go to step 13.
b. If YES, it is prohibited and inadmissible. Go to step 14
13. If you have determined that the evidence is admissible for “another purpose” other than the one prohibited by the rule, conduct an FRE 403
balance. Does the unfair prejudice of the impermissible use of the evidence substantially outweigh the probative value of the other purpose?
a. If NO, the evidence is admissible. Go to Step 14.
b. If YES, the evidence is not admissible. Even though you have articulated a valid purpose, the unfair prejudice of the prohibited purpose
vastly predominates and admission would subvert the rule of exclusion. Go to Step 14.

IF ADMISSIBLE–METHODS OF PROVING CHARACTER

FRE 405
A: Reputation or Opinion
 When character evidence admissible, can be proved by testimony about:
o Person’s reputation (note—can’t be asked WHY think that about rep)
o In form of opinion
 On cross-exam, inquiry into relevant specific instances of person’s conduct permissible
o Attorney must have good faith basis for believing that it happened (Krapp)
o Impeaches witness’s credibility

B: Specific Instances of Conduct

 When character is essential element of charge / claim / defense, may be proved by specific instances of person’s conduct
o Note: can ask your own character witness on direct about specific acts here
 Can use an extrinsic character witness under FRE 404(a)–but only speak to opinion and reputation
 Can use extrinsic evidence under 404(b) to prove motis operandi, intent, motive, etc. – not propensity but for some other reason.

FRE 803(21) Reputation Concerning Character

 Hearsay exception = reputation among person’s associates concerning person’s character

IMPEACHMENT
14. Has a live witness given testimony or has an absent declarant’s testimony been offered for its truth?
a. If NO, there is nothing to impeach. Go to step 23
b. If YES, go to step 15
15. Can the witness be impeached for bias?
a. If NO, go to step 16
b. If YES, questions regarding bias may be raised on cross-examination and by extrinsic evidence. go to step 16
16. Can the witness be impeached for sensory perception?
a. If NO, go to step 17
b. If YES, questions regarding her perception may be raised on cross-examination and by extrinsic evidence. go to step 17
17. Can the witness be impeached for a propensity for non-truthfulness (excluding any issues raised by criminal convictions)? [FRE 608] [W1’s
credibility may be attacked or supported by testimony about the witness (through W2) having a bad character for truthfulness]
a. If NO, go to step 18
b. If YES, the party impeaching the witness may bring opinion or reputation evidence concerning the witness’s truthfulness. The
impeaching party may also cross-examine about specific instances of the witness’s non-truthfulness, but must accept the witness’s answer;
(extrinsic evidence concerning the specific evidence of untruthfulness is inadmissible). Go to Step 18.
i. Once D chooses to testify, he gives the government the right to test his credibility, and since D places his credibility at issue, the
government may offer evidence bearing on D’s credibility as a witness (U.S. v. Lollar)
ii. Evidence of the witness’ past conduct of willing to lie on the stand in a previous trial is a specific instance of conduct admissible under
FRE 608(b), so long as it is admitted during cross-examination of said witness, rather than through extrinsic evidence (U.S. v. White)
18. Was the witness convicted of a crime that required the pros to prove dishonesty or false statement as an element (i.e., a crimen falsi), and have
fewer than ten years passed since the witness’ conviction or release, whichever is later? [FRE 609]
a. If NO, go to step 19
 b. If YES, the witness may be impeached w/ the prior crime and the court will conduct no FRE 403 balancing, even if the witness is the
accused (FRE 609(a)(2)). Go to step 21
i. Regardless of whether the conviction was a felony, misdemeanor, or a violation; whether it was a guilty plea or a trial, the court looks
to the elements of the crime, not the underlying facts. If the elements of the crime require a dishonest act, is a crimen falsi, and
happened w/in 10 years, can offer evidence of a conviction using extrinsic evidence.
19. Was the witness who is being impeached convicted of a crime punishable by more than a year in prison, and fewer than 10 years passed since
the witness’ conviction or release?
a. If NO, go to Step 20.
b. If YES, and the witnesses is the accused: the prosecutor must prove that the probative value of the impeachment outweighs the unfair
prejudice to the accused (FRE 609(a)(1)(B)). Go to step 20.
i. Evidence must be admitted in a criminal case where the witness is the defendant, if the probative value of the evidence outweighs the
prejudicial effect to that defendant.
c. If YES, and the witness NOT the accused: the objecting party can exclude the impeachment by demonstrating that the unfair prejudice
substantially outweighs the probative value–a standard FRE 403 test (FRE 609(a)(1)(A)). Go to step 20.
20. Was the witness convicted of a crime that would have been otherwise admissible as impeachment under FRE 609(a) except for the fact that 10+
years passed since the witness’ conviction or release?
a. If NO, go to step 21
b. If YES, the evidence is only admissible if its proponent can demonstrate that the probative value of the impeachment, supported by specific
facts and circumstances, substantially outweighs its prejudicial effect and the proponent gives written notice to the adverse party. (FRE
609(b)). Go to step 21
i. This is a very difficult test to pass and favors the exclusion of the evidence
21. Is the proposed impeachment independently admissible extrinsic evidence that contradicts a witness’ testimony?
a. If NO, it is inadmissible. Go to step 22
b. If YES, the impeachment by contradiction is admissible as long as it is not so tangential that it fails the FRE 403 balance for waste of time.
Go to step 23
22. Is the proposed impeachment of a witness the witness’ own prior statement?
a. If NO, go to step 23
b. If YES, the witness need not be shown the statement in advance but generally must be afforded an opportunity to explain or deny it (FRE
613). Go to step 23

Prohibited Uses: Permissible uses:

Can’t use extrinsic evidence to prove specific instances of conduct,
unless re past crim conviction
o Intrinsic: through witness’s own testimony
o Extrinsic: through another witness, document, or other type of
evidence
If witness denial: can’t do anything unless prior crim conviction (FRE
609) (efficiency
Cross exam: can bring up specific instances of conduct to impeach
witness, if probative of character for truthfulness / untruthfulness of:
o The witness OR
o Another witness whose character the witness being cross-exam’ed
testified about
 CAN bring in specific instances of conduct to impeach
witness on cross-exam after witness offered bad testimony
of your witness

HEARSAY

ANALYSIS:
Who is the declarant?
Who is the witness?
Was this statement made out-of-court?
What is the statement?
Is the statement being offered for the truth of the matter
asserted?
Is it barred by the confrontation clause?

23. Is the statement hearsay? Is the out-of-court statement being offered for the truth of the matter asserted?
a. If the statement is NOT being used for the truth of the matter asserted, and it is:
i. circumstantial evidence of the state of mind of the speaker;
 Not hearsay because they can be used to show the declarant’s state of mind circumstantially, w/o the FoF needing to accept
declarant’s assertion in the statement to be true (Lyons)
ii. effect on the listener;
 Show what effect utterances had on the listener (hearer or reader). Not being used to prove the assertion is true, but to demonstrate
the effect on the person who heard it, such as displaying the listener’s knowledge or elucidating the listener’s intent.
iii. impeachment of a witness with an inconsistent prior statement; OR
 Statement being offered to show that witness has been inconsistent + arguable unreliable (FRE 613)
iv. verbal act
 Admissible when words themselves do something–the fact that exact words were spoken proves something
the out-of-court statement is admissible, but it is worthwhile to analyze the out-of-court statement to see if it falls under any exemptions or
exclusions just in case the judge disagrees w/ hearsay analysis. Go to step 24
b. If YES, the statement is hearsay (FRE 801(a)-(c)). Go to step 24
FRE 801(d)(1): Hearsay Exemptions for Prior Statements by Witnesses

Necessary foundation to offer the statement for the truth under FRE 801(d)(1)(A):
1. Declarant must be called as a witness at trial, testify, and to be cross-examined
2. Witness must be asked about prior statements during cross
3. Prior statement must in fact be inconsistent w/ current testimony
4. Prior statement must have been given under penalty of perjury
a. In case it does not meet criteria above, and prior inconsistent statement comes in for the purpose of impeachment, then you need to
provide the jury w/ a limiting instruction. If inconsistent statement but not under oath, may only come in for the purpose of
impeachment

24. Does the out-of-court statement fall under the “not hearsay exemption” for a witness’ prior inconsistent statements? To do so, the prior
statement by the witness must: (a) be inconsistent; (b) have been offered under oath, subject to penalty of perjury; and (c) been made at another
trial, proceeding, or deposition. [Witness must be subject to cross-exam at the time the statement is introduced, but the prior statement itself
need not have been subject to cross at the time it was made] (FRE 801(d)(1)(A))
a. If NO, the inconsistent statement may be admissible for its truth. Go to step 25
b. If YES, the prior statement ≠ hearsay, and is admissible for its truth, as well as for impeachment (FRE 801(d)(1)(A)). Go to step 26
i. Under FRE 801(d)(1)(A), evidence can come in for the purpose of impeachment, and as substantive evidence–FoF may use this for the
truth, and can either believe the prior statement or the current statement.
25. Is the out-of-court statement consistent with the witness’s current testimony and offered: (1) to rebut an express or implied charge that the
declarant recently fabricated the current in-court testimony or acted from a recent improper influence or motive” OR (2) to rehabilitate the
declarant’s credibility as a witness when attacked on another ground? (FRE 801(d)(1)(B))
a. If NO, the consistent statement will NOT be admissible. Go to step 26
b. If YES, the consistent statement is “not hearsay” and is admissible for its truth, as well as for rehabilitation (FRE 801(d)(1)(B)). Go to step
26.
i. Allows former consistent statements to come in as a rehabilitative matter and as substantive evidence. statements can be allowed to
rebut an express/implied charge that the declarant recently fabricated it or acted from improper influence or motive. There is a tempral
effect here, has to be made before any motive of influence arose (Tome)
26. Is the out-of-court statement a prior identification of someone, and is the witness currently available? (FRE 801(d)(1)(C).
a. If NO, go to step 27
b. If YES, the prior statement is “not hearsay” and is admissible for its truth (FRE 801(d)(1)(C). go to step 27
i. Witness’ prior statements of identification (which can be reported by others, such as PO’s, who witnessed the identification ≠ hearsay
and is admissible under this rule)
ii. Not hearsay IF:
 Declarant’s prior statement identifies a person as someone the declarant perceived earlier
 Declarant is subject to cross-exam

FRE 801(d)(2): Hearsay Exemptions for Statements by Party-Opponents

27. Is the party-opponent offering the statement of a party, or of the party’s agent, employee, or co-conspirator?
a. If NO, go to step 28
b. If YES, the statement is admissible and need not be against interest when made or be made w/ PK. Still go to step 28.

FRE 801(D)(2) ANALYSIS:

 Any statement made by a party is admissible if offered by the party’s opponent
 Statement admissible when offered AGAINST the party who made it
 These statements do not have to be against the party’s self-interest when made, nor does it have to be based upon personal knowledge. This
rule applies to party statements only and not to statement by victims in criminal cases who are not parties. The opposing party, not the
party who made the statement can introduce it
 Under 801(d)(2)(C – E): need to establish additional independent evidence to ensure the relationship is there… no longer allowed to just
bootstrap like under Bourjaliy. The preponderance standard under 104(a) was enough but now you need additional independent evidence.
 FRE 801(d)(2)(A): Made by the Party
o Not hearsay if:
 Offered against opposing party; and
 Was made by that party in an individual or representative capacity (Phelps)
 PK not required–can adopt employee’s story (Salvitti)
o Diff if I say, “my employee told me this”–that is hearsay w/in hearsay
 Does not have to be inculpatory (McGee)
o Do not have to admit shit
 FRE 801(d)(2)(B): Adoptive Admission
o Not hearsay if:
 Offered against opposing party; and
 Party manifested that it adopted it or believed it to be true (Mahlandt) (Sea-Land)
o Includes adoption through silence:
 To admit evidence of adoption by silence, must show:
 Alleged adopting party heard the statement; AND
 Circumstances warranted inference that party would have protested if the statement was untrue
o Distinguish:
 Fortes: inference that if untrue, adopting party would’ve objected
  Singer: letter not something D would necessarily respond to
 Sometimes it makes no sense to respond, so in this case it is not adoption
 FRE 801(d)(2)(C): Authorized Admissions
o Not hearsay if:
 Offered against opposing party; and
 Was made by a person whom party authorized to make the statement on a subject
 FRE 801(d)(2)(D): Agent & Employee Admission
o Not hearsay if:
 Offered against opposing party; and
 Was made by party’s agent or employee:
 On a matter w/in the scope of that relationship; and
 While the relationship existed
 Examples:
 Driver in Salvitti working for company during accident
 Director in Mahlandt who had wolf in his custody at the time of the bite
 Board of directors in Mahlandt were agents of company during dispute
 FRE 801(d)(2)(E): Co-Conspirator Admissions
o Not hearsay if:
 Offered against opposing party; and
 Was made by the party’s co-conspirator during and in furtherance of a conspiracy
o Elements:
 Statement was made by co-conspirator of party against whom statement is offered
 Whether conspiracy = preliminary question to be determined by preponderance of evidence (Bourjaily)
 Statement was in furtherance of conspiracy
 Statement was made during the existence of that conspirac
WAS THERE HEARSAY W/IN HEARSAY? (SEE FRE 805)

FRE 804: Hearsay Exceptions in Which the Declarant is Unavailable

28. Is the declarant truly unavailable via death, illness, privilege, etc.? (FRE 804(a))
a. If NO, go to step 33
b. If YES, go to step 29
29. Was statement by unavailable declarant made under oath, at prior proceeding/deposition, where the party against whom it is being offered (or in
civil case, the party’s predecessor in interest) had similar move + opportunity to cross-examine? (former testimony) (FRE 804(b)(1))
a. If NO, does not fit w/in FRE 804(b)(1). Go to step 30
b. If YES, the hearsay statement is admissible for truth under the former testimony exception (FRE 804(b)(1)). Go to step 31.
i. There will be no Confrontation Clause problem if this is offered against the accused in a criminal case, because although the statement
was testimonial, the accused had the motive and opportunity to cross-examine
30. Was the statement made by an unavailable declarant in a civil case who believed her death was imminent? (dying declaration) (FRE 804(b)
(2))
a. If NO, the statement cannot fit the dying declaration exception under FRE 804(b)(2). Go to step 33
b. If YES, go to step 31
31. Does the statement concern the events that led to the declarant’s belief that she was dying?
a. If NO, the statement cannot fit dying declaration exception under 804(b)(2). Go to step 33
b. If YES, the statement is admissible for its truth under FRE 804(b)(2). There was likely be no C/C problem. Go to step 33
32. Is this a homicide or civil case?
a. If NO, the statement cannot fit w/in exception, b/c does not apply to any crimes but homicide or civil cases. Go to step 33
b. If YES, the statement is admissible under FRE 804(b)(2)
33. Was the statement by the unavailable declarant so contrary to the declarant’s financial, legal, or penal interests that no one would have said it
unless it were true? (statement against interest) (FRE 804(b)(3)
a. If NO, statement cannot fit w/in the exception. Go to step 35
b. If YES, go to step 34
34. Is this a criminal case?
a. If NO, the statement is admissible for its truth as a statement against interest under FRE 804(b)(3). Go to step 35
b. If YES, the statement fits the statement against interest exception under FRE 804(b)(3) ONLY if there is corroboration of the statements
trustworthiness. If the statement was testimonial, there may be a constitutional objection under the Confrontation Clause. Go to step 35
35. Did the party against whom the unavailable declarant’s statement is offered intentionally render the declarant unavailable or acquiesce in the
conduct of another to make the declarant unavailable? (forfeiture by wrongdoing) (FRE 804(b)(6))
a. If NO, the forfeiture by wrongdoing exception does NOT apply. Go to step 36
b. If YES, the party has forfeited the right to object to the hearsay rule under FRE 804(b)(6). The confrontation clause is also forfeited. Go to
step 36

FRE 803: Hearsay Exceptions in Which the Declarant May Be Available or Unavailable
36. Did the declarant make the statement as she perceived the event or immediately after? (present sense impression) (FRE 803(1))
a. If NO, go to step 37
b. If YES, the statement is available as a present sense impression under FRE 803(1). Go to step 37
37. Did the declarant make the statement relating to a starting event/condition (like a crime, fight, etc.)? (excited utterance) (FRE 803(2))
a. If NO, go to step 39
b. If YES, go to step 38
38. When declarant made the statement, was the declarant still under the stress of excitement caused by the startling event or conditions?
a. If NO, go to step 39
b. If YES, the statement is admissible as an excited utterance under FRE 803(2). Go to step 39
i. Declarant must have PK (Bemis) (FRE 602)
39. Did the declarant make a statement about her current mental or physical condition, intent, sensation, emotion, thought, or plan? (then-existing
state of mind) (FRE 803(3))
a. If NO, the statement is inadmissible under this exception. Go to step 40
b. If YES, the statement is admissible under the then-existing state of mind exception, unless it was a fact remembered or believed (FRE
803(3). Go to step 40
i. Intent can be used to show that a person subsequently did something, but must be “forward looking” (Hillmon)

Interaction between Non-Hearsay Uses of Evidence and 803(3)

 If it’s not offered for the truth, it’s not hearsay (i.e. “it’s Barney.” Lyons Partnership)
o In that case, it wasn’t offered to prove that it was Barney. It was offered to prove that the children thought it was Barney which was
relevant because it helped prove confusion
o It was offered as circumstantial evidence
 If it’s offered for the truth, but it establishes the speaker’s state of mind contemporaneously, it may come in under 803(3)
o If children instead had said: “I think it’s Barney.”
o Now, it’s hearsay but it is admissible under 803(3)
o It’s a different way of getting in

40. Did the statement describe medical symptoms or treatments made for the purpose of medical diagnosis? (medical diagnosis) (FRE 803(4)
a. If NO, the statement is inadmissible under FRE 803(4). Go to step 42
b. If YES, go to step 41
41. Was the statement pertinent to a medical diagnosis?
a. If NO, the statement is inadmissible under FRE 803(4). Go to step 42
b. If YES, the statement is admissible under FRE 803(4). Go to Step 42
42. Has the declarant made or adopted a record of a matter about which she once has knowledge but now can only partly remember? (recorded
recollection) (FRE 803(5))
a. If NO, FRE 803(5) does not apply
i. NOTE: if the declarant’s memory can be jogged by a record, it can be used for the non-hearsay purpose of refreshing recollection and
if so much been shown to the opposing party. Go to step 44
 Can use something (usually a writing) to refresh recollection per FRE 612–SEE FRE 612 (PRESENT RECOLLECTION
REVIVED)
b. If YES, go to step 43
43. Was the record made or adopted when the matter was still fresh in the declarant’s mind?
a. If NO, FRE 803(5) does not apply. Go to step 44
b. If YES, the record is admissible as a past recollection recorded under FRE 803(5). It will normally be read in the record as testimony,
rather than entered as physical exhibit (unless it’s offered by opposing party). Go to step 44
44. Is the out-of-court statement a record of regularly conducted business activity where it was the regular practice of the business to make such a
record? (business records) (FRE 803(6))
a. If NO, FRE 803(6) does not apply. Go to step 48
i. FRE 803(7) may apply! Evidence that a matter is not included in a record is admissible if:
 Admitted to prove that the matter did not occur/exist
 Record was regularly kept for a matter of that kind; AND
 Opponent does not show source/methods of prep indicate last of trustworthiness
b. If YES, go to step 45
45. Was the record made by a person with knowledge, or made from information transmitted by a person with knowledge?
a. If NO, the statements fails the business-duty rule, and FRE 803(6) does not apply. Go to step 48
b. If YES, go to step 46
46. Was the source of information part of the regular business loop? Did the source of the information possess a business duty to speak or
otherwise participate in creating the record?
a. If NO, FRE 803(6) does not apply. Go to step 48
b. If YES, go to step 47
47. Can the opponent of the evidence prove that the source of information or the method/circumstances of preparation indicates a lack of
trustworthiness? (the most common example of lack of trustworthiness is a record prepared in anticipation of litigation)
a. If NO, FRE 803(6) DOES apply, unless the record is a police report offered by the government in a criminal case. Go to step 48
b. If YES, FRE 803(6) does not apply. Go to step 48
48. Does the governmental record or report involve any of the following: (a) activities of the government agency; (b) matters observed pursuant to a
duty imposed by law when the public servant has a duty to report, excluding matters observed by law enforcement personnel; or (c) factual
findings resulting from an investigation made pursuant to legal authority (The underlying evidence used by public servants in reaching their
conclusion need not be admissible)? (public records) (FRE 803(8)-(10) [beware of hearsay w/in hearsay]
a. If NO, the exception does not apply. Go to step 49
b. If YES, the exception for public records and reports applies as long as source of information and the method or circumstances of
preparation do not indicate that the record is untrustworthy. The underlying evidence used by public servants in reaching their conclusion
need not be admissible (FRE 803(8)). Go to step 49
i. ANALYSIS:
 Does the document set out the office’s activities?
 Was the matter observed while under legal duty to report?
  If this is a criminal case, no observations by law enforcement are admissible against D but records that are routine and have no
adversarial are admissible
 Factual findings from law enforcement admissible if: (a) civil case and investigation was legally authorized; or (b) they are being
offered against the pros and the investigation was legally authorized
 Are there any reasons why we should question the reliability of the document?
 Confrontation Clause issues? (Melendez-Diaz) (Bullcoming)
49. Have you tried every step in this checklist & still cannot figure out a way to get the hearsay statement in? (residual exception) (FRE 807)
a. If NO, then bye
b. If YES, go to step 50
50. Does the otherwise inadmissible, relevant hearsay evidence: provide “guarantees of trustworthiness” that are “equivalent” to those of established
exceptions; offer evidence that is more probative on the point for which it is offered than any other evidence that can reasonably be obtained;
and serve the “interests of justice” by its admission?
a. If NO, the statement is inadmissible under FRE 407
b. If YES, go to step 51
51. Did the proponent of the evidence provide the opposing party with notice or demonstrate to the court that its failure to do so was excusable?
a. If NO, the statement is inadmissible hearsay
b. If YES, statement is admissible for its truth under FRE 807, but the ruling will have no precedential value

CONFRONTATION CLAUSE
52. Is the government offering the statement for its truth against an unavailable accused that the accused was unable to cross-examine (at any time?)
a. If NO, no C/C problem. Go to step 56
b. If YES, go to step 53
53. Is the statement “testimonial”) (i.e., was it made for litigation purposes)?
a. If NO, the C/C does not apply. Go to step 56
b. If YES, go to step 54
54. Did the accused intentionally make the declarant unavailable in order to prevent the declarant from testifying?
a. If NO, there is no forfeiture and the testimonial statement is barred by the C/C. Go to step 56
b. If YES, though the out-of-court statement is testimonial and would normally fall under the Confrontation Clause, the forfeiture exception
applies and the declarant’s statements are admissible. Go to step 55
55. Is the statement a dying declaration, made by a victim of homicide, concerning the cause of her impending death, with the subjective expectation
that she would soon die?
a. If NO, the statement is testimonial and barred by C/C. go to step 59
b. If YES, the SC in dicta has stated that this may be an exception to C/C. go to step 56

Make alternative argument!

 This is not hearsay at all, your Honor, because I’m not offering the out-of-court statement for its truth. However, even if it were hearsay, it
would fall under the following exceptions…”

COMPETENCE [FRE 601]

56. Is the witness willing to take an oath, able to communicate, and able to understand the oath?
a. IF NO, the presumption of competence has been rebutted and the witness is incompetent to testify
b. If YES, the witness is presumed competent (FRE 601). Go to step 57
57. Is the witness a judge, juror, or attorney testifying as a fact or expert witness in the case? (FRE 605, 606)
a. If NO, go to step 58
b. If YES, the witness is competent (FRE 605, 606). Go to step 58
58. Is the witness a juror testifying about jury deliberations?
a. If NO, the juror is incompetent to testify. Go to step 59
b. If YES, jury is only competent to testify about: (a) a mistake in reporting the actual verdict; (b) the introduction of extraneous prejudicial
information; or (c) an improper outside influence

PRIVILEGES
Adverse Spousal Testimony
59. In a criminal matter, are the parties to a lawsuit or the police attempting to obtain information about a current spouse via testimony, deposition,
police inquiry, or other formal mechanism?
a. If NO, the adverse spousal testimonial privilege does not apply. Go to step 60
b. If YES, spouse from whom the information is sought, the holder of the privilege, may assert the adverse spousal testimony privilege and
need not take the stand or answer questions. Go to step 60
i. The privilege will apply in federal court unless the privilege has been waived or abrogated. The confidential communication spousal
privilege may also apply.

Confidential Spousal Communication

60. In a civil or criminal case, are parties to a lawsuit or the police attempting to obtain information about a confidential communication between
spouses that occurred when the spouses were legally married?
a. If NO, the confidential spousal communication privilege does not apply. Go to step 61
b. If YES, the spouse who made the confidential communication may assert the confidential spousal communication privilege. The privilege
will apply in federal court unless the privilege has been waived or abrogated. Go to step 61

Attorney-Client Privilege
61. Are the parties or the police attempting to obtain information about a confidential communication between lawyer and client relating to a legal
matter?
a. If NO, the A-C privilege does not apply. Go to step 62
b. If YES, the A-C privilege will protect the communications unless it was disclosed to a 3 rd party, waived b/c of testimony, or is a part of the
crime-fraud exception.
62. Were the attorneys services obtained for the purpose of furthering a future crime or fraud?
a. If NO, the A-C privilege will protect the communications
b. If YES, the A-C privilege does not apply

Other Professional Privileges

63. Are the parties or the police attempting to obtain information about a confidential communication between an individual and a clergyperson or a
therapist?
a. If NO, no professional privileges apply. Go to step 64
b. If YES, the communication will be privileged, unless it was disclosed to a 3 rd party, waived b/c of testimony, or is a part of the crime-fraud
exception. Go to step 64

OPINION & EXPERT TESTIMONY

Lay Opinion
64. Is the lay witness providing an opinion based on her perceptions that is helpful the FoF in clarifying the witness’ testimony or determining a
disputed fact?
a. If NO, it is not a permissible lay opinion–may qualify as an expert opinion if the witness has been qualified as an expert. Go to step 65
b. If YES, it is a permissible lay opinion under FRE 701. Go to step 65
i. Sometimes a witness is both a fact and expert witness.

Expert Opinion
65. Is the witness qualified by her education, experience, knowledge, or skill?
a. If NO, the witness may not offer testimony. Go to step 69
b. If YES, go to step 66
66. Does the expert’s opinion derive from: (a) personal knowledge; (b) any information the expert learned in preparation for the testimony; or (c)
training and study?
a. If NO, the witness may not offer testimony. Go to step 69
b. If YES, the witness may be qualified as an expert under FRE 702. Go to step 67
67. Is the expert opinion based on sufficient facts or data, and is it the product of reliable principles and methods applied correctly by the expert?
a. If NO, the judge as a gatekeeper should reject the expert’s testimony. Go to step 68
b. If YES, the expert may offer her opinion and rely on inadmissible evidence, if experts in the field reasonably rely on those kinds of facts or
data (FRE 703). Go to step 68

JUDICIAL NOTICE
68. Is the fact generally known in the community OR capable of immediate and accurate verification by use of easily-available sources that
indisputably accurate? (Information can be found in encyclopedias, almanacs, and etc.)
a. If NO, the fact likely cannot be judicially noticed.
b. If YES, the fact may be judicially noticed–so that proof isn’t required. Go to step 69
69. Adjudicative fact: facts of the particular case–who did what, where, when, why, how. Court taking notice of an adjudicative fact is governed by
FRE 201
 Under FRE 201, court must take notice of an adjudicative fact under 2 circumstances:
o Fact is generally known w/in TC’s jurisdiction
o Fact can be accurately & reasonably determined from sources whose accuracy cannot reasonably be questioned
 Gould Approach: relates to the particular case at hands–what needs to be adjudicated in this case
o Concerning immediate parties + actions
 Bello Approach: adjudicative = fact necessary to establish element of an offense
o Whether fact is germane to what happened in the case
70. Legislative fact: Facts that related to legal reasoning and the lawmaking process, whether in the formulation of legal principle or in enactment
of legislative body…; “facts or pronouncements that do not change from cases to case but apply universally, while adjudicative facts are those
developed in a particular case.” A court can take notice of a legislative fact.
 Example: when spouses testify against their spouse we think it be likely to destroy almost any marriage/counter to this in Trammel—if
someone is willing to testify, marriage is beyond repair
 This seems like an opinion, presented as a fact, Roth says
 Two ways of thinking about legislative facts:
o Policy making process (Hawkins)
o Things in the world that the court has determined are universal or are legal questions (legal questions vs. factual questions)
 Gould Approach: relevance to legal reasoning + lawmaking process
o Does not relate to litigants; universal–does not change case to case
o Ex: claim that allowing spouse to testify against another spouse will destroy the marriage
o Limit: cannot go from judge’s own personal experiences
 Bello Approach: legislative = fact useful in formulating common law policy or interpreting statute
AUTHENTICATION
Real Evidence
71. Is a tangible item offered by a party what its proponent claims it to be?
a. If NO, the judge will sustain an objection for lack of authentication, and the evidence will be inadmissible. Go to step 73 for demonstrative
evidence
b. If YES, the item has been authenticated and the judge should allow the jury to consider the evidence (FRE 901(b). go to step 73
i. Examples in FRE 901(b) include:
 Testimony of a witness w/ knowledge
 Distinctive characteristics and the like
 Evidence about public records filed in a public office as authorized by law or the office where items of this kind are kept;
 Etc.
72. To authenticate: (901(a))
a. Proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is
i. Use as many factors as possible (Bruther) (Zhyltsou)
b. Jury asks if a reasonable jury could find that the thing is what the proponent says it is–judge decides what is admissible
i. FRE 104(b)–conditional relevance
 Only relevant if the thing is what proponent claims it is
 Preponderance of the evidence
ii. Breaks in the chain of custody go to the weight of the evidence (Casto)
c. Jury determines the weight of the evidence–jury determines what evidence means for the case
i. The jury, when it deliberates, will decide whether the evidence is sufficient to determine that the item is authentic
ii. Chains of custody (Casto)
 If period of time where item is unaccounted for
 Probably the case that chain of custody could be so great that reasonable jury could not find that the item is what it says it was
iii. Dispute that it isn’t the item

Demonstrative Evidence
73. Is the tangible item offered as demonstrative evidence (such as a chart, map, or replica) authenticated by a witness who demonstrates familiarity
w/ whatever is depicted and who testifies that the exhibit fairly & accurately represents the subject?
a. If NO, the court should not admit the demonstrative evidence, and should sustain an objection as to authenticity. Go to step 74
b. If YES, the demonstrative evidence has been authenticated (FRE 901). Go to step 74

Best Evidence Rule

74. Is the item in question a writing, recording, or photo, and therefore something that falls w/in FRE 1001?
a. If NO, the best evidence rule does not apply.
b. If YES, go to step 75
75. Is the proponent trying to prove the contents of the document? [is it a defamation case/parole evidence issue where the doc is required? Has
litigant chosen to rely on a writing, recording, or photo?]
a. If NO, the best evidence rule does not apply
b. If YES, go to step 75
76. Is there any reason that the duplicate would be unfair, or is there any question about authenticity? (FRE 1003)
a. If NO, a mechanical duplicate will suffice, and admissible under FRE 1003 + FRE 1001
b. If YES, must get original, or else inadmissible

FRE 105: LIMITING INSTRUCTIONS

 FRE 801. For All Non-Hearsay Uses: used to instruct the jury when the statements might be hearsay but not being offered for the truth of the
matter asserted.
o “Barney should only use this to understand that the people had a belief, but not that it was actually Barney”
 FRE 404(b): used to instruct the jury that the character evidence should be used to determine the likelihood that it supports the things listed in
404(b) BUT that it should not be used as a propensity inference
 Instruction for demonstrative evidence: need to make sure jury understands
 Cannot be used to cure judge questioning in some cases when it is very prejudicial
 In public records case (Williams v. Illinois): not used for truth so can do limiting instruction there
 When explaining that a prior inconsistent statement should only be used to impeach: should not be used for the truth of the matter unless
the prior inconsistent statement was given under penalty of perjury (Albert v. McKay)
o This goes in hand with 801(d)(1)(A)
 Rule of completeness: if allowing other things in for context, can use limiting instruction to direct the jury to only use it to inform but not for
the truth (Beech Aircraft)
 Cases of co-conspirators: can use limiting instruction to make sure it’s only considered against one but not the other defendant
 When evidence of character is used for other reasons (Cleghorn)
 Other permissible uses of character under FRE 404(b)
 FRE 407. Subsequent Remedial Actions: to show the control, feasibility or for impeachment but not for negligence (Clausen)
 FRE 408. If Using the Negotiation for Other Reasons: (i.e., to show estoppel) need a limiting instruction (PRL – Polo Case)
 Impeachment – Incapacity – limiting instruction if someone is being impeached for using medication (Sasso)
 FRE 801(d)(1)(B) for rehabilitation