Evidence Checklist

THE EVIDENCE
1. Is it relevant?
2. If relevant, is it propensity evidence or other evidence specifically excluded even when
relevant?
3. Is it evidence about the character of the accused or victim? Is the evidence being used for
an allowable purpose or at the right time?
4. Is it evidence about past crimes or acts? Sexual behavior? Habit?
5. Is it an out-of-court statement offered for the truth of its contents? Or to show someone
believed it?
6. If so, is it either exempted from the hearsay definition or an exception to the hearsay
rule? Is the declarant unavailable?
7. Is the evidence being used for its truth or to impeach? Will the jury really be able to use it
for one but not the other?
8. Is it privileged communication? Does the relationship and the communication meet the
requirements to establish the privilege?
9. Is it scientific, technical, or other specialized knowledge?
10. Is it statistical evidence?
11. Is it a physical object, document, photograph or record being placed into evidence?
12. If so, has it been properly authenticated and does it comply with the best evidence rule?
13. Is the evidence more probative than prejudicial?
THE WITNESS
1. Is the witness competent to testify, having personal knowledge and being able to take the
truthtelling oath?
2. Is the witness incompetent as a spouse or barred from certain testimony under a
privilege?
3. Is the witness the accused (the criminal defendant)?
4. Is the witness being asked the proper type and scope of question for direct and crossexamination, including about opinions?
5. Is the witness qualified as an expert on some relevant matter, and if so, is she giving
proper opinion testimony?
6. Is the witness able to be impeached because of past crimes, bad acts, poor perception or
memory, or bias?
7. Will the witnesss general testimony be more prejudicial than probative, meaning he
shouldnt testify at all?
IN GENERAL
1.
2.
3.
4.

Does it matter if we are in a civil or criminal trial?

Are we in a sex offense case?
Have the burdens of production and persuasion been met? Who had the presumption?
Has the judge taken judicial notice of any adjudicative facts?

Short Outline
I.

RELEVANCE
A. Basic Rules p. 2
1. 401. Relevant means any evidence having any tendency to make the existence of
any fact of consequence to determining the action more or less probable than it
would be without the evidence.
2. 402. Irrelevant evidence is inadmissible. Relevance is a gateway issue necessary
but not sufficient.
3. Evidence should be logically probative (have a tendency to increase the probability
of a factual proposition) and consequential/material (tend to establish existence of
nonexistence of an element from the controlling law, and be contested)
a. Direct evidence obviously covers the former, but circumstantial evidence
doesnt party needs to show that we can draw an inference from fact to
conclusion.
4. If there is other uncontested evidence in the trial, it reduces the probative value of
and need for other relevant contested evidence.
5. 403: Relevant evidence can be excluded if its probative value is substantially
outweighed by danger of unfair prejudice, confusion, misleading the jury, or is a
waste of time. This rule can be used to kick anything out. p. 4
6. Old Chief: too prejudicial, on a charge of being a felon in possession of a firearm, to
allow full description of grisly murder that constituted the felony. p. 6
7. 105: Limited admissibility the judge gives a jury instruction to consider the
evidence only with respect to the topic its admitted for, not for anything else. p. 8
B. Preliminary Questions
1. 104 (a): Prelim questions about witness qualification, privilege, and admissibility
decided by court except for
2. 104 (b): except for when a party says I know its not relevant on its own but it
will be when I establish another fact. Then the judge will let the jury decide about
that. This is conditional relevance. P. 9
C. Statistical Proof p. 14
1. Le Blue Bus Even when hit by a blue bus, and 90% of the blue buses are run by
one company, cant use that stat as proof of one companys liability, because courts
get too nervous about it as propensity and not direct proof. Paradox, since it clearly
fits the definition of relevancy and is probably more reliable than lots of other
evidence.
2. People v. Collins problems in case where expert made up probabilities for the
demographic traits of the defendants as proof of guilt. No good must have
empirical basis for assigning values, variables must be independent, and random
match probability is not source probability.
3. Random match probability is the probability that a random person in the population
is a match for the trait(s), like 1/1000 in this city have X trait. Source is the
probability that the person is the actual one (source of the hair, for example). In a
large population could be much larger than random match.
D. Specific Exclusions p. 19-24

1. 411: Ev that a person did /didnt have insurance is not admissible as to whether she
was liable or negligent. Can be used to establish ownership, control, witness bias.
2. 407: Subsequent remedial measures (post-accident repairs, doing something to make
what happened less likely) are inadmissible as evidence of guilt because we want
people to do good stuff like that. But can be used to establish ownership, control,
feasibility of certain precautions.
3. 408: Settlement or settlement offers not admissible to prove liability, nor is conduct
or statements made during negotiations. Safe zone.
4. 409: Payments of medical expenses not admissibly to prove liability, but related
statements can show liability.
5. 410: No contest and withdrawn guilty pleas not admissible against criminal
defendant in civil or criminal matters. Neither are statements made in the course of
plea discussions if a guilty plea doesnt end up going through.
II. CHARACTER EVIDENCE
A. Basic Rules p. 31
1. 404 (a): Character evidence is generally not admissible to prove that a person acted
in accordance with that character on a certain occasion thats bad propensity
evidence.
2. Exceptions for when the defense in criminal trial makes it relevant, see below.
3. 404 (b) Evidence of past crimes, wrongs, or acts not admissible for character, but
admissible if its only being used for another purpose, like to show motive,
opportunity, intent, planning, knowledge, identity.
B. Character in Issue Character evidence is allowed when it is an element of a claim
or defense, like an a defamation case.
C. Acceptable Proof
1. 405 (a): Reputation or opinion is OK. On cross, can bring up relevant specific acts.
2. 405(b): Specific acts are not OK in general, except for character in issue. Or for
reasons covered in 404 (b).
D. Habit - 406: Habit evidence is admissible to prove a person or organizations conduct
on a particular occasion was in conformity with their habit or routine practice, but not
as general evidence about character (this habit = careful person) p. 40
E. Character of the Accused and Victim p. 47
1. 404(a)(1): A defendant can introduce evidence of his own good character for
propensity purposes. But then the prosecution can introduce rebuttal evidence that
hes a bad person.
2. 404 (a)(2): A defendant can introduce evidence that the victim was the aggressor
with character evidence about the victims violent nature. But then the prosecution
can introduce good character evidence about the victim OR bad evidence about the
defendant. (a)(2)
F. Character in Sex Offense Cases p.51
1. 412 (a): Not allowed to introduce evidence of victims other sexual behavior or
sexual predisposition
2. 412 (b)(1): Exceptions in criminal cases evidence that the victim had sex with
someone else whos the real source of the physical evidence, that the victim had sex
with the accused before, anything that would violate accuseds const rights. (p.53)

3. 412 (b)(2): In a civil case, the rule doesnt apply if the probative value of the
evidence about the victim substantially outweighs danger of harm to any victim and
unfair prejudice to any party. Reputation of victim only open for dispute if the victim
puts it in controversy,
4. 413 : In a sexual assault case, evidence of past sexual offenses is admissible and OK
for propensity. 414: Same for child molestation. 415: Both also OK in civil cases.
III. HEARSAY
A. Basic Rule p. 61
1. 801: Hearsay is an out-of-court oral or written statement offered to prove the truth of
the matter asserted, and is inadmissible. Rationale on p. 62.
2. Statements not offered to prove what they assert, but to prove that someone was at a
location or that a conversation happened, are fine.
3. Verbal acts are not statements, and are admissible. Ex: writing or speaking words
that create a contract, giving permission, depends on the jurisdiction. Also words
introduced to show their effect on the hearer or reader, like warnings or threats.
4. But actions intended to convey meaning are statements (assertive conduct). Ex:
nodding, shaking head
B. Statements Exempted from the Definition of Hearsay
1. Admissions p. 89
a. 801 (d)(2): Statement offered against a party if its the partys own statement,
an adoptive admission, a statement by the partys rep, a statement by the
partys agent if its within the scope of employment, or a statement by a coconspirator.
b. 801 (d)(2)(B): Adoptive admissions are a partys reaction to a statement or
action by another person where the reaction admits something stated or
implied by the other person. Silence can be adoptive. p. 91.
c. Admissions by co-conspirators can only be if the statement was during and in
furtherance of the conspiracy. Bourjaily - Cant have the hearsay be the only
proof that there even was a conspiracy.
2. 801 (d)(1): Prior statements by a witness are okay if the statement is inconsistent
with current testimony and was given under oath, consistent with the current
testimony and used to rebut a charge of current fabrication or bias, or was a
statement about identification after perceiving the person. p. 90
C. Hearsay Exceptions, Declarant Available or Unavailable p. 102
1. 803 (1) Present sense impressions descriptions of stuff as the declarant is seeing
them, or immediately after. Probably accurate.
2. 803 (2) Excited utterances statement relating to a startling event or condition
made while the declarant was under stress of excitement caused by it.
3. 803 (3) Statements of current mental, emotional, or physical condition
4. 803 (4) Statements for medical diagnosis or treatment including medical history,
past or present symptoms, pain, etc.
5. 803 (5) Past recollection recorded document or record about something a witness
had knowledge of but now doesnt remember well enough. Has to have been made or
adopted when the issue was fresh in the witnesss memory. Can be read into
evidence, but not be an exhibit unless offered by the adverse party.

6. Business and public agency records 803 (6) - (8)

a. OK if made in a timely matter by or transmitted by someone with knowledge,
and if it was the regular practice to make that record. Broad def of business.
Record that meets the criteria can be excluded if it just seems unreliable.
b. Lack of an entry is admissible evidence that something didnt happen if it
would have normally been recorded if it did happen.
c. Public records are admissible if they are record the activities of the office or
agency, matters observed pursuant to law they were required to report
EXCEPT in criminal cases matters observed by police and law enforcement
personnel (incentive to falsify), or some investigative factual findings.
7. Miscellaneous ancient documents (20 years +), religious records, marriage and
baptismal certificates, tombstones, urns, etc.
D. Hearsay Exceptions, Declarant Unavailable p. 122
1. 804 (a): Unavailable means the declarant is exempted by privilege, refuses to testify
despite a court order, has a lack of memory, is dead or sick, or is absent and the
proponent cant get him here by reasonable means.
2. 804 (b)(1): Former testimony at a hearing or deposition if the party against whom the
testimony is offered, or a predecessor in interest, got to develop the testimony by
direct or cross.
3. 804 (b)(3): Statement against interest specifically, against the declarants financial
or property interests or would subject him to civil or criminal liability. Doesnt count
if it conveniently had the declarant taking blame for the accuseds crime, unless
theres corroborating evidence of trustworthiness.
4. 804 (b)(2): Dying declarations. If you dont die you had to believe death was
imminent. Can only testify about cause or circumstance of impending death.
5. 804 (b)(6): Forfeiture of admissibility by wrongdoing If the declarant isnt here
because you kept him from coming or testifying, you dont get these exceptions.
E. Hearsay Within Hearsay Is OK as long as each part of the combined statements is
covered by a hearsay exception.
IV. PRIVILEGES
A. General Rule, 501 common law determines privilege.
B. Attorney-Client p. 182
1. Must be in a genuine lawyer-client relationship: have reasonable basis for believing
youre speaking with a lawyer, getting legal counsel or consultation about hiring the
lawyer.
2. For corporations, comm. between a corporate employee and the corporate lawyer are
privileged if their topic relates to the employees work, purpose of communication is
to provide legal services to the corp, and the comm. is confidential. Upjohn. You
have to still be working for the corp for it to apply.
3. Client must have reasonable expectation of privacy. Presence of a known third party
waives the privilege unless its someone necessary to the providing of legal advice.
4. Client must preserve the confidentiality of the communication. not tell people later.
5. Topic of communication must be connected with obtaining legal counsel not nonlegal or personal topics. Planning a future crime waives the privilege.

6. Communication generally doesnt include aspects of the clients appearance that

would have been visible to other people (like being drunk), identity of client or
source of payment.
7. A doc discoverable in the clients possession isnt shielded just because the lawyer
also has it or saw it, but you cant question the lawyer about it.
8. Attorney work product is protected unless opponent shows its too difficult to get the
info any other way. Hickman.
C. Spouses p. 193
1. Confidential communication between spouses is protected whether the spouses are
parties or not. Protection of statements during marriage lasts even after end of
marriage.
2. Topic must relate to the marriage, but this is broadly applied and usually only
excludes stuff about a spouse business relationship.
3. Exceptions for when spouses litigate against each other and for crimes of intrafamilial
wrongdoing (assault of spouse of child)
D. Physician-Patient p. 195 Exception for when patient puts own physical condition
unto dispute. Also usually doesnt apply in criminal cases. Not in fed common law.
E. Therapist-Patient p. 196 Often also covers social workers. Jaffee.
F. Priest-Penitent. Statements should be made in confidence, due to the requirements of
a religion, and to an authorized person in the applicable religion.
G. Government Execs and Informers gov can keep secret identity of informers. Can
also protect state secrets and executive communications. That needs a statement from
the agency head and an in camera examination.
V. EXPERT TESTIMONY
A. Proper Topics p. 170
1. Can only testify if judge believes jurors will benefit from help on the topic of the
expert testimony
2. Cannot testify on whether a witness has testified truthfully thats province of the
jury. But various syndromes are OK.
B. Qualification p. 170
1. Witness must be qualified by knowledge, skill, experience, training, or education
2. 702 (1): Testimony must be based on sufficient facts or data
3. 702 (2): Testimony must be product of reliable principles and methods
4. 702 (3): Witness must apply principles reliably to facts of the case
C. Tests for Reliable Testimony p. 171
1. Old Frye test relied heavily on consensus of scientists in the experts field.
2. Daubert factors (none binding): Judge as gatekeeper.
a. Can theory be tested, and has it been?
b. In peer reviewed journals?
c. Known and potential error rates?
d. Standards for operation of theory, and were they used?
e. Degree of acceptance in a relevant community?
3. Kumho Tire says Daubert applies to all expert testimony, not just science.
D. Style of Testimony p. 175. 704 (a): Opinion on ultimate issue in the trial is OK,
unless (b) its about mental state constituting an element of a charged crime.

VI. AUTHENTICATION AND ORIGINAL WRITINGS

A. Authentication p. 201
1. 901 (a): Gotta prove it is what you claim it is. This applies to documents, records,
physical things, and references to people having been seen by or spoken to a witness.
2. 901 (b): Illustrations (some ways of authenticating, but you can use others)
a. Witnesses with knowledge. Might be ID, explaining chain of custody
b. Handwriting has to be IDed by a layperson familiar with that persons
handwriting or an expert based on other already-authentic documents
c. Voices and phone conversations can be authenticated by someone who knows
the voice, by testimony a call was made to a business # and the conversation
was about a business, or a call was made to a personal # and theres ID of the
person who answered.
d. Public records can be authenticated by evidence the writing or data
compilation came from the right office, or chain of custody.
e. Self-authentication 902. Certain certified docs, official publications,
newspapers, trade inscriptions, commercial paper
f. Other stuff ancient docs 20+ years old if found in an authentic place, process
or system with testimony describing the process used.
B. Original Writing p. 208
1. 1001: Original is the doc/record itself or any counterpart meant to be an original, like
multiple signed copies of a contract, photo prints, computer printouts.
2. Best evidence rule preferences original documents over testimony about document
contents. 1002: Originals requires unless covered by a Rules exception.
3. 1003: Use of duplicates fine in lieu of an original unless theres questions about the
originals authenticity of its unfair to use the duplicate.
4. 1004: Evidence other than originals admissible if the original is lost or destroyed
(unless in bad faith), unobtainable by available judicial process, the opponent has the
original and didnt produce it, or its not closely related to a controlling issue.
VII.WITNESSES AND EXAMINATION
A. Witness Competency p. 136
1. 601: Everyone is competent unless covered by an exception. Rules are pro-testifying.
2. 605: Judge cant testify. 606: Jurors can only testify if about extraneous prejudicial
information or outside influence on the jury.
3. 603: Everyone must take an oath or affirmation.
4. 602: Have to establish a witness has personal knowledge of the matter hes testifying
about. Can use the witnesss own testimony.
5. Children dont have a special prohibition, but many are barred under 403 for being
prejudicial because the kid cant tell truth from falsehood, or because they cant take
the oath, or because they dont have real personal knowledge.
6. Spousal incompetency: In a criminal case, the prospective witness spouse can refuse
to testify.
B. Scope and Style of Examination p. 140
1. 611 (c): Leading questions cant be used on direct examination except for obvious
intro stuff. Are permitted for cross, hostile witnesses, and adverse parties.

2. 611 (b): Scope of cross limited to subject matter of direct and the credibility of the
witness. For anything else you have to call the witness yourself for direct.
3. Questions by the judge are fine, but only to clarify things, not to influence the result.
4. 701: Lay opinion statements are okay if rationally based on the perception of the
witness, helpful to a clear understanding of the testimony or a fact in issue, and not
based on specialized knowledge. Otherwise they have to be qualified experts under
702.
5. The Confrontation Clause doesnt prohibit physical barriers or closed circuit TV as
long as there are individualized findings that it would be traumatic if not used.
VIII. IMPEACHMENT
A. General Right 607 Witness may be impeached by either side, although sometimes
you cant use the witness only to impeach her with material that would be
inadmissible for other purposes.
B. Proof of Intentional Lies p. 145
1. Past criminal convictions can be used as evidence of a witness propensity to be
dishonest sometimes. 609.
a. 609 (a)(2) Crimes of dishonesty or false statement are generally admissible.
403 test doesnt even apply!
b. 609 (a)(1) Other crimes are admissible against a witness if punishable by
more than one year and passes rule 403 (probative substantially outweighs
prejudicial), and admissible against an accused if punishable by more than
one year and probative outweighs prejudicial.
c. 609 (b). None of this is admissible if the conviction or release from prison is
more than 10 years old (whichever is later), unless the probative value
substantially outweighs prejudicial value.
d. 609 (c) and (d) Pardons, annulments, certificates of rehabilitation doesnt
count as long as the witness hasnt committed another crime, and juvenile
matters generally dont count.
2. Character Evidence for Impeachment p. 152
a. 608 (a) Opinion or reputation evidence OK. Ev of truthful character only
admissible after character for truthfulness has been attacked.
b. 608 (b): Past specific acts (not convictions) relevant to truthfulness cant be
proved by extrinsic evidence, and can only be asked about on cross of the
witness or another witness. Questioner must have good faith belief it happened.
3. Questions about sources of bias (organizational ties, payment) allowed to make
inference witness has lied
4. 610: Religious belief is off limits.
C. Proof of Poor Perception of Memory Questions and independent evidence allowed
D. Contradiction can show intentional or accidental falsehoods. Cant use extrinsic
proof of contradiction/error unless the topic is actually relevant in the trial (not
collateral).
E. Prior Statements by a Witness p. 156
1. 613 (a) Can use prior inconsistent statements by witness without showing actual
statement (unless requested by opposing counsel). Because of hearsay bar, cant use
prior statement as proof of what it asserts.

2. 613 (b) Extrinsic evidence of prior inconsistent statement can only be used if the
witness gets a chance to explain or deny it.
3. See 801(d)(1) for when you can use prior statements substantively.
F. Impeachment and Hearsay Declarants 806: When a hearsay statement is
admitted, the credibility of the declarant can be attacked by any evidence that would
be admissible if the declarant was a witness (except 613 (b) is waived).
IX. PRESUMPTIONS AND JUDICIAL NOTICE
A. Presumptions p. 215
B. Burdens of Persuasion and Production
C. Criminal Cases p. 219
D. Judicial Notice p. 224