Step 1: Is evidence relevant?

1. Is the evidence relevant – probative and material [FRE 401]

a. What fact is the evidence being used to prove?
b. Is that fact material or at issue in this case?
i. What are the elements to what is being charged?
ii. What are the defenses to it?
c. Does the evidence support an inference that the fact is more or less probable?
2. Is the evidence only relevant if another condition of fact is fulfilled? [Conditional Relevance – FRE 104(b)]
a. JUDGE SCREENS the evidence to assess whether a reasonable JURY COULD find the conditional fact a
preponderance of the evidence (51%).
i. EACH conditional fact must be proven! If each conditional fact is not proven à evidence
inadmissible!
ii. 404(b), 412 (rape shield), 602 (personal knowledge), 901 (authentication), 1008 (best evidence)

Step 2: Does a specialized relevance rule apply?

1. Evidence of remedial measures taken AFTER the incident [Subsequent Remedial Measures – FRE 407]
a. Is proponent offering the evidence of the remedial measures taken AFTER incident to prove: negligence;
culpable conduct; defect in product or design; need for warning? à INADMISSIBLE
b. Is proponent offering the evidence for another purpose? Examples include impeachment, or–if disputed–
ownership, control, feasibility à MAY be admissible
2. Evidence of compromise or attempts to compromise a DISPUTED claim [attempts to compromise – 408(a)(1)]
a. Is proponent trying to introduce evidence to prove/disprove the validity/amount of claim AND/OR to
impeach? à INADMISSIBLE
b. Is proponent offering the evidence for another purpose? Examples include, proving witness bias, lack of
undue delay, or proving effort to obstruct criminal prosecution? à MAY be admissible.
3. Evidence of conduct/statements made during compromise negotiations [conduct/statements during compromise
– 408(a)(2)]
a. Is proponent trying to introduce evidence to prove/disprove the validity/amount of claim AND/OR to
impeach? à Inadmissible UNLESS the statements were made during compromise negotiations with gov
agency in civil case AND the proponent offering them in related criminal proceeding
b. Is proponent offering the evidence for another purpose? Examples include, proving witness bias, lack of
undue delay, or proving effort to obstruct criminal prosecution? à MAY be admissible
4. Evidence of payment or promising/offering to pay medical expenses [FRE 409 – Medical Expenses]
a. Is proponent trying to introduce evidence of payment/offering to pay medical bills to prove liability? à
INADMISSIBLE
b. Is proponent trying to introduce evidence of accompanying statements and NOT payment/offers to pay to
prove liability à MAY be admissible!
i. FRE 409 bars only offer to pay/payment not surrounding statements like FRE 408!
5. Evidence withdrawn guilty plea (including statements) or evidence of no contest plea (including statements).
**does NOT include accepted guilty pleas [Withdrawn or Non-Contest Plea – FRE 410]
a. ONLY admissible if:
i. In criminal or civil, another statement was introduced by Def and it would be unfair to exclude
ii. In criminal proceeding for perjury/false statement, Def made statement under oath/on record with
counsel present
6. Evidence of liability insurance or lack of liability insurance [Liability Insurance – FRE 411]
a. To prove negligent or wrongful act à INADMISSIBLE
b. To prove something other than negligent/wrongful act such as W’s bias, ownership, control à MAY be
admissible
7. Probative value is substantially outweighed by danger or unfair prejudice, confusion, misleading jury, undue
delay/waste of time, cumulative evidence [FRE 403]
a. Availability of other less prejudicial means; stipulation?
 b. Availability of FRE 105 limiting instruction?

Step 3: Is it evidence of a person’s character? (Must still be relevant)

A. Is evidence impermissible character “propensity” evidence – 404(a)(1)?
1. Or is propensity evidence permitted by:
Rule Proceeding Summary
406 [Habit] Criminal/Civil Habit or organization’s routine practice to prove acts in accordance
404(a)(2)(A) Criminal DEF may offer Def pertinent trait and prosecutor may rebut
404(a)(2)(B) Criminal DEF may offer V’s pertinent trait and prosecutor may rebut
CAUTION: Rape Shield [FRE 412]
404(a)(2)(C) Homicide only Prosecutor may offer V’s peacefulness to rebut that victim was aggressor
CAUTION: Def must still open door and say V was aggressor
Common law Criminal/Civil Non-character-based impeachment testimony (impairment of perception,
Impeachment inconsistency, contradiction, bias)
608(a) Criminal/Civil Impeachment–reputation or opinion evidence of W’s untruthfulness
[Impeachment CAUTION: Can only bring in truthful character after attacked!
untruthfulness]
609 Criminal/Civil Past conviction 1+ year available penalty (need not be sentenced 1+ year)
- For a witness, NOT Def = MUST admit subject to 403!
[Impeachment w/ - For D = Must admit if probative outweighs prejudicial (mini reverse 403)
Prior - If 10+ year = Admit only if probative value substantially outweighs prejudice
Conviction] (Reverse 403)

Past conviction involving dishonesty = MUST admit (includes D!)

- Need not be felony (1+ year)
- If 10+ year = Admit only if probative value substantially outweighs prejudice
**still need to go
(Reverse 403)
to untruthfulness
CAUTION: All 609 subject to (b) 10 year rule, (c) pardon, or (d) juvenile status

2. If permissible, was the manner of presenting the character evidence proper – 405(a)?
3. Must still run through FRE 403!
a. Availability of other less prejudicial means; stipulation?
b. Availability of FRE 105 limiting instruction?

B. Is evidence impermissible evidence of crimes, wrongs, or other acts **need not be past! – 404(b)(1)

1. Or is propensity evidence permitted by:

Rule Proceeding Summary

404(b)(2) Criminal/Civil Use crime, wrong, other act for another purpose. Examples include: motive,
opportunity, intent, prep/plan, knowledge, identity, MO, lack of accident

CAUTION: other acts subject to 104(b) unless they are adjudicated crime
Reverse 404(b) Criminal/Civil Def introduce 3rd party other bad acts to prove that Def did not commit crime
charged
405(b) Criminal/Civil Character or trait is an essential element of charge, claim, of defense allowing
specific instances of conduct to be introduced

Ex. libel/slander, pros arguing against Def’s entrapment defense

413-415 Criminal/Civil Past sexual assault or child molestation

2. Must still run through FRE 403!

a. Availability of other less prejudicial means; stipulation?
 b. Availability of FRE 105 limiting instruction?

Step 4: Is there a witness on the stand? (Testimony must still be relevant)

**questions must not be leading or prohibited under 711!
1. Is the witness competent to testify?
a. To testify a witness must be:
i. Be competent [FRE 601, 605, and 606]
ii. If lay witness, have personal knowledge [FRE 602] – personal knowledge is 104(b)
iii. Take an oath or affirmation [FRE 603] and
iv. If needed, use an interpreter [FRE 604]
2. Is the witness a lay witness giving opinion testimony?
a. If yes, lay witnesses must testify from personal knowledge!
i. To determine if lay witness has personal knowledge, evidence must be introduced sufficient to
support a finding of personal knowledge [FRE 104(b)]
b. Is the opinion testimony appropriate? [FRE 701]
i. Firsthand knowledge or personal observation
ii. Must be helpful to the jury
iii. May not rest on scientific, technical, or specialized knowledge
iv. Must lay down foundation to establish has info required to form opinion
3. Is the witness an expert witness? [FRE 702-705]
a. Proper Qualifications: qualified as expert by judge–do NOT need to show formal training to do this. [FRE
702]
b. Proper Topic/helpful to jury: Topic is beyond the common sense of jurors. [FRE 702]
i. May not tell the jury what result to reach or intrude on judge's role
ii. But the fact that the expert’s testimony “embraces an ultimate issue” is not alone objectionable
1. UNLESS criminal case and expert testifying to whether Def had mental state required
[FRE 704]
c. Sufficient Basis: must have adequate factual basis for opinions [FRE 702(b) & 703; 705]
i. Expert may state an opinion without first testifying to underlying facts or data. These facts or
data may be otherwise admissible/hearsay [FRE 705]
1. If expert uses inadmissible facts/data, cannot introduce on direct UNLESS probative
value substantially outweighs prejudice (reverse-403)
2. If expert uses inadmissible facts/data and opponent asks about facts/data on cross-exam,
must disclose.
a. Facts/data do not come in substantively unless learned treatises and medical
statements
d. Relevant & Reliable Methods: [FRE 702(c)] look to Daubert
i. Whether the theory or technique has been tested
ii. Whether it has been peer reviewed
iii. Technique’s error rate
iv. Is there a standard controlling the technique's application?
v. Whether the theory/technique is generally accepted in the relevant scientific community?
e. Methods Reliably Applied: [FRE 702(d)]
4. Can credibility of witness be impeached? **any party may impeach/may not bolster until W impeached; not
coming in substantively
a. Impeaching through bias: W’s like/dislike of party and self-interest/plea deal? (CL)
i. Questions regarding bias may be raised on cross-exam of witness and by extrinsic evidence
b. Impairment in perception/recollection: how well they see/hear things re. circumstances the observed (CL)
i. Can use extrinsic evidence
c. Impeaching witness through contradictory Evidence (CL)
i. On direct: evidence must be independently admissible extrinsic evidence that contradicts a
witness’s testimony (no collateral evidence)
 ii. On cross: can bring in collateral evidence!
d. Past inconsistent statement by witness to show lying on specific point not to show generally a liar (CL)
i. *NOT admitted substantively! Can use extrinsic evidence – look out for hearsay!
e. Impeaching or bolstering w/ religious beliefs NOT allowed [FRE 610]
i. But religious beliefs are admissible for other purposes such as motive
f. Are they impeaching with propensity for non-truthfulness (excluding criminal convictions)? [FRE 608]
i. On direct, the party impeaching the witness may bring opinion or reputation evidence
concerning the witness’s untruthfulness. (Direct = ONLY opinion or reputation)
1. To give reputation evidence, person serving as character witness must be sufficiently
familiar with W’s reputation in community
2. To give opinion evidence, person serving as character witness must know and be familiar
with witness
3. Judge will first hold a 104(b) hearing to lay foundation of character witness
ii. On cross exam, the opposing party may ask about specific instances of conduct that are relevant
for character of truthfulness and attorney MUST accept answer from witness!
1. Can NOT provide extrinsic evidence of specific instances except allowed under 609!
a. Extrinsic evidence is anything other than testimony from witness currently on
stand (docs, affidavits)
2. Attorney bringing in specific instances must have good faith belief!
iii. NOTE: Can NOT bolster character for truthfulness UNTIL untruthfulness is attacked and can
only bolster with reputation and opinion evidence ONLY
1. Character attacked when:
a. Opponent offered opinion or reputation testimony of the witness’s bad character
for truthfulness (cheating, lying on taxes)
b. Opponent on cross exam, brings up specific acts W’s untruthful character under
608(b)
c. Opponent offered evidence of W’s past conviction under 609
2. Bias and contradiction evidence are NOT attacks on character for truthfulness!
g. Impeaching with prior convictions to attack character for truthfulness [FRE 609]
i. Conviction is a felony punishable by 1+ years (do NOT need to be sentenced to 1+ years)
1. Criminal or civil: witness is NOT Def and:
a. Less than 10 years since conviction or release à 403
b. 10+ years since conviction or release à Admit only if probative value
substantially outweighs prejudice (Reverse 403)
2. Criminal ONLY: Witness IS Def and:
a. Less than 10 years since conviction or release à Admit only if probative
outweighs prejudice to THIS Def **cannot be equal (mini reverse 403!)
i. Burden on proponent of evidence, unlike 403!
b. 10+ years since conviction or release à Admit only if probative value
substantially outweighs prejudice (Reverse 403)
ii. Conviction involves fraud/deceit/dishonesty (okay EVEN if misdemeanor)
1. Less than 10 years à must admit! (no 403 weighing!)
2. 10+ years since conviction or release à Admit only if probative value substantially
outweighs prejudice (Reverse 403)
iii. NOTE: *can use extrinsic evidence to prove conviction and can admit conviction even if
appealing, including evidence of appeal [FRE 609(e)]
5. Is testimony privileged?
a. What choice of law applies? [FRE 501]
i. Federal courts recognize:
1. communications between patients and psychotherapists and clinical social workers
2. clergy-penitent privilege
3. attorney-client communications and work-product
4. Spousal immunity and marital communications
ii. Federal privilege law controls in all federal criminal actions and federal question civil actions.
 iii. When state law supplies the rule of decision, as in diversity actions, state privilege law controls.
b. Does professional privilege (patient/psychologist; clergy; attorney-client) apply?
i. Privilege belongs to the client and survives death
ii. Privilege only protects confidential communications made to facilitate professional services
iii. The privilege extends only to confidential communications
1. The COMMUNICATION is what is privilege, NOT the FACTS being communicated
iv. Persons necessary to the lawyer's services do not destroy confidentiality
c. Does psychotherapist-patient privilege apply (does not include medical physicians)?
i. Requires: communication must be made for the purpose of obtaining treatment or diagnosis of
psychological, mental, or emotional condition.
d. Does clergy-penitent privilege apply?
i. Requires: made in confidence and for the purpose of receiving spiritual guidance (includes
disclosures of illegal acts)
e. Does attorney-client privilege apply? [FRE 501; 502]
i. Requires 5 things: (1) Client; (2) Attorney; (3) Communication between client and attorney; (4)
Communication is confidential; (5) Communication in furtherance of seeking legal advice
ii. Is there a crime-fraud exception?
1. The crime fraud exception applies if: (1) client is committing or intending to commit a
crime/fraud AND (2) attorney-client communications are in furtherance of crime or fraud
2. Sequence of Establishing the Crime-Fraud Exception
a. CLIENT invokes privilege and has burden of proving privilege exists (above)
b. To rebut that the privilege does NOT apply, the opponent makes a prima facie
showing that:
i. (1) Client was engaged in crime/fraud when seeking legal advice, OR
client was planning criminal/fraud conduct at time of seeking advice OR
client committed crime/fraud after receiving counsel AND
ii. (2) Assistance was in furtherance of the crime/fraud or closely related
iii. IMPORTANT: the opponent must prove both things using NON-
privileged evidence reviewed in camera!
c. If after reviewing the material, a reasonable person could conclude in camera
review of the actually privileged material may reveal evidence to show
crime/fraud exception applies, court MAY review privilege info in camera
i. ON EXAM: Look out for mandatory terminology. Just because a party
shows through non-privilege info, judge does NOT have to consider
privilege infor!
f. Is this a criminal case where the Def is compelled to testify? [5th Amed Privilege to Self-Incrimination]
i. Protects against ONLY: (1) compelled, (2) testimonial (3) self-incrimination of legal criminal
liability that is “real and appreciable”
ii. Protects only individuals and NOT organizations (ACP protects organizations)
g. Does it involve spousal testimony? 2 Types: Spousal Testimony and Marital Confidences
Spousal Testimonial Privilege Marital Confidences Privilege
Protects Allows spouses to decline to testify in Protects confidential communications obtained
criminal trial or grand jury during the marriage
*look to intent and whether intent was
objectively reasonable
Proceeding Criminal ONLY Civil and criminal
Holder of privilege Only testifying spouse – target spouse/def Both spouses—need both spouses to agree to
cannot prevent witness spouse from waive privilege
testifying
Duration of priv Only applies during marriage Applies during and after marriage
 Status of Applies to info obtained before marriage Need valid marriage for privilege to apply –
relationship at time AND during marriage does NOT protect communications before
of communication marriage

Step 5: Is statement barred by hearsay rule? (Must still be relevant)

1. Is there an out-of-court statement (written, verbal, conduct) made by a PERSON?
2. Did the declarant intend to communicate something?
a. Look at circumstances and audience–did they know people were watching?
3. Could this be a non-hearsay purpose?
a. To prove the impact on someone who heard it (self-defense, justification of reasonable fear)
b. Legally operative words (“I accept” to prove K)
c. Impeachment of inconsistent statements
d. Nonassertive words (i.e. “ouch”)
e. Offered as circumstantial proof of knowledge of listener/notice
f. Proves something other than what they assert
4. Is it an out-of-court-statement being offered to prove truth of matter asserted?
a. What is the statement being offered to prove AND is the factfinder being asked to believe the contents of
the statement are TRUE?
i. When considering this ask: do we care if the words were spoken or do we care if they are true?
5. If hearsay, does an exception apply? ***Judge can consider hearsay/inadmissible evidence under 104(a)

801(d)(2) Where out of court declarant is opposing party:

- A party’s statement must be offered against that party; AND
**Not technically 1. Personal or authorized statement
hearsay § Criminal case: Def can NOT offer opposing statements against gov
2. Adoptive omissions (NOTE: Miranda issues)
3. statement made by someone authorized to make statement (ex. press office)
4. statement made by employee w/in scope of employment
5. statement made by co-conspirator during conspiracy in furtherance of conspiracy!
801(d)(1) Where out of court declarant is the witness:
- The declarant must testify AND be subject to cross (does NOT need to be the person
**Not technically offering the statement) AND
hearsay 1. Prior inconsistent statement
2. Prior consistent statement
3. Statement of identification
804 Where out of court declarant is unavailable:
- Legally unavailable [804(a)] AND
1. Former testimony
§ Criminal = need same parties; major issue with CC!
§ Civil = can have different parties but need same interest
2. Dying declaration (imminent death and statement is about this cause)
3. Statement against interest (criminal cases require extrinsic corroboration)
4. Personal or family history
5. forfeiture by wrongdoing
803 Where the out of court statement is reliable as a matter of law regardless of declarant
availability:
1. Present sense impression;
2. Excited utterance
3. Then-existing condition
4. medical diagnosis/treatment
5. recorded recollection to refresh memory
6. record of regularly conducted activity
7. public records
807 Hail Mary: Proof under 104(a) that the statement is trustworthy; material; more probative than
any other evidence available; best serves justice
14th Compulsory process: Testimony critical to defense with indicia of reliability; the absence of
Amendment which would deprive the defendant of a meaningful opportunity to present a complete defense
(Chambers)

Step 6: If hearsay, is there a Confrontation Clause Issue?

1. Is it a criminal case where the government is offering hearsay?
2. Is it testimonial or not?
a. Objective analysis!
b. Nontestimonial: primary purpose to establish/prove past events relevant to later criminal trial
i. Causal offhand remarks are non-testimonial
c. Testimonial: primary purpose to enable police assistance to meet ongoing emergency?
i. Lab reports are testimonial!
ii. Primary purpose analysis:
1. Who initiated contact?
a. Police = testimonial
b. Citizen = emergency
2. Questions asked backward or forward looking?
a. After event = testimonial
i. Made with some formality–time for formality then not likely ongoing
emergency
b. During event/while happening = emergency
3. Ongoing danger to V, police or public?
4. Are police behaving like crisis exists?
a. Scrambling vs. waiting around for ambulance
3. If testimonial:
a. Is declarant unavailable AND
i. NOT unavailable if Def caused unavailability!
b. Did Def have prior opportunity to cross?

Nontestimonial statements Testimonial statements

• Causal remarks to an acquaintance
• Offhand heard remarks
• Statements in furtherance of conspiracy
• At least some business records (but NOT lab
reports)
• Statements made to police with primary purpose
to meet ongoing emergency
• Statements made by very young children
• Solemn declarations made for purpose or
establishing or proving some fact
• Prior testimony at preliminary hearing, grand jury,
prior trial
• Statements produced with help of gov officers in
preparation for trial
• Statements made in course of police interrogation,
no ongoing emergency, primary purpose to
establish facts for future trial
 Step 7: Is it evidence other than live testimony requiring proper authentication?
1. Is there extrinsic evidence sufficient to support a finding that the item is what the proponent claims it is –
conditional relevance [FRE 901]?
a. Judge decides admissibility, jury decides weight
b. Establish chain of custody
c. 901(b) contains a list of means of authentication all requiring extrinsic evidence to authenticate
i. French rule – non-exhaustive list!
2. Or is the evidence self-authenticating [FRE 902]?
a. Self-authenticating evidence includes:
i. Evidence that requires no extrinsic evidence of authenticity to be admitted:
1. Public documents that have seal and are signed
a. Ex: marriage license
2. Certified copies of public documents
3. Newspapers/periodicals
a. Including their websites
4. Official publications:
a. Book, pamphlet, website published by public authority
5. Certified business records
b. NOTE: German Rule: this is an exhaustive list!
3. Is the item a writing, recording, or photograph offered in compliance with the best evidence rule [FRE
1001-1008]?
a. An original writing, recording or photograph is required in order to prove its content UNLESS
i. The original is lost or destroyed but not by proponent in bad faith OR
ii. Original can’t be obtained through judicial process OR
iii. Party against whom original if offered is in possession and fails to produce it despite notice OR
iv. Writing, recording or photograph is not closely related to the controlling issue in the case.
b. Duplicate admissible to the same extent as original UNLESS a genuine question is raised about original’s
authenticity or circumstances make it unfair to admit duplicate [FRE 1003]
c. A jury determines under conditional relevance any issue regarding: [FRE 1008]
i. (a) an asserted writing, recording, or photograph ever existed;
ii. (b) another one produced at the trial or hearing is the original; or
iii. (c) other evidence of content accurately reflects the content.

Step 8: Could Judge take Judicial Notice of Fact?

**judidical notice
1. Is it an adjunctive fact? [FRE 201(a)]
a. Adjunctive fact: a fact that helps prove the elements of a specific case
i. Ex. how fast was the car going
b. Cannot determine legislative facts (i.e., things that inform a court’s ruling on legal issue)
2. If adjunctive fact, is the fact NOT subject to reasonable dispute? [FRE 201(b)]
a. Must be a fact that is NOT subject to reasonable dispute because it:
i. Is generally known within the trial court’s territorial jurisdictions; OR
ii. Can be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned
3. Did court take notice on its own, or did party request it AND supply the necessary info? [FRE 201(c)]
a. Judicial notice can be taken ANY time during proceeding [FRE 201(d)}
4. Is it criminal or civil case? [FRE 201(f)
a. Civil case: court MUST instruct the jury to accept the noticed fact as CONCLUSIVE
b. Criminal case: court MUST instruct jury it MAY or MAY NOT accept the noticed fact as conclusive
 Step 9: Will 403 bar the evidence?
1. Probative value is substantially outweighed by danger or unfair prejudice, confusion, misleading jury, undue
delay/waste of time, cumulative evidence [FRE 403]
2. Consider availability of other less prejudicial means; stipulation?
3. Consider availability of FRE 105 limiting instruction?

Questions for every piece of evidence!

1. What type of evidence is this?
2. Are you in a civil or criminal proceeding?
3. Who is offering the evidence?
4. For what purpose are you offering this evidence?
a. This is critical b/c the rules typically tell you what ways you cannot use the evidence for
5. Where are you in the legal process when the issue arises?
a. Are you on direct exam? Are you on cross? Are you on redirect? Is the person a witness?
6. Are you trying to get the evidence admitted substantively or are you only offering it for impeaching the credibility
of the witness?