I.General Principles

Evidence Checklist

I.General Principles

Rationale for Rules
Mistrust of Juries
Substantive Policies—subject matter of the litigation
burdens of proof
External Policies not related to subject matter of litigation
privileges
Discern the Truth
Efficiency
Scope of Direct
Cross examination limited to matters explored on Direct examination
Depending on whose side you represent, matters explored on direct are
facts in direct
Transaction or Occurrence in Direct
Issue presented in direct
Credibility
Objections
Timely and Specific 103(a)(1)
Motions in limine made before trial in anticipation of an objection to the evidence you are offering OR anticipating an objection to evidence opposing counsel is going to offer
Once a ruling is made, 103(a)(2) provides that the party need not renew the objection during trial
Offers of Proof 103(a)(2)
where court’s ruling excludes evidence, proponent of the evidence can offer substance as if he were allowed to in order to preserve the record for appeal
sidebar OR
question and answer form outside presence of jury 103(c)
Errors and Review
evidence excluded or admitted must have effected the outcome
outcome affected beyond a reasonable doubt in criminal cases
outcome affected by a preponderance of the evidence in civil cases
Types of error
reversible
plain
harmless
constitutional
Trumps Error
cumulative evidence doctrine
harmless error
curative instructions
Burden of proof to show error
record preserved AND
outcome affected according to criminal or civil standards
Burden of Proof to show no error
record was not preserved by timely and specific objections
if evidence excluded, no offer of proof was made

II.Relevance

Logical 401
evidence having any tendency to make the existence of any consequential fact more probably or less probable than it would without the evidence
Evidence providing narrative richness, details to meet jury expectations, and considerations of party autonomy to present evidence is logically relevant
Legal 403
if relevant, court can exclude evidence if its probative value is substantially outweighed by the danger of
unfair prejudice
misleading the jury
confusion of the issues OR
considerations of undue delay
waste of time
needless presentation of cumulative evidence
When balancing, consider
necessity of the evidence AND
whether reasonable and less prejudicial alternatives exist
Conditional Relevancy
if relevancy depends on the existence of a fact, court ONLY determines if there is sufficient evidence to support a jury finding one way or the other
Jury alone decides whether the fact exists. if the fact exists, the evidence is relevant. if not, the jury discards the evidence.
“Substantially the same” standard
limited Admissibility
where evidence is admissible for one purpose but not another OR for one party and not the other, the court shall restrict the evidence to its proper scope and instruct the jury accordingly
If a limiting instruction would be inadequate, court has the power to sever trials or order separate juries (Bruton Problems)
Rule of Completeness
where portions of a writing or recording are offered by one party, the adverse party, at that time, May demand the remainder of the writing or recording to provide context
Shortness of Life
court can exclude evidence for practical reasons
Probabilistic Proof
Mathematical probabilities to prove guilt are inadmissible
usurps the jury function
Probabilistic analysis may be used to identify a body when not a material issue in the case
probabilistic proof might be proper if there are actual probabilities AND jury confusion would be limited

Relevancy of Character: Character evidence is generally inadmissible unless the following apply
General Character of 
Character of the  admissible if  raises good character trait of himself or bad character trait of the victim
in either case, the prosecution can offer bad character of the  to rebut
on cross, prosecution can question witness as to prior crimes showing the bad character of the 
Crimes must be pertinent AND
prosecutor must act in good faith
Prosecution can also present general opinion and reputation testimony to rebut character of 
General Character of Victim
Character of the victim is admissible if  raises bad character of the victim
prosecution can offer good character of the victim to rebut the 
on cross prosecution can question witness as to specific instances of good character AND
prosecution can also present general opinion and reputation testimony showing the victim’s good character
In a homicide case to which the  claims the victim was the aggressor, Prosecution can present evidence of the victim’s peacefulness to rebut the ’s claim that victim was the aggressor
Specific Acts to Prove ’s Propensity
Where  raises an issue of specific propensity
intent, motive, opportunity, preparation, plan, knowledge, identity or M.O., absence of mistake or accident
Other crimes can be admissible to show such specific propensity
To determine M.O., consider
number of unique factors in the prior crimes similar to the present
distinctive nature of the acts
Resemblance of prior crimes to this act
Methods of Proving Character
405(a) allows general opinion or reputation evidence on direct examination AND
405(a) allows inquiry into specific instances of conduct on cross examination
405(b) allows specific testimony ONLY IF the charge or claim requires a finding of character
defamation, libel, negligent entrustment, damages for wrongful death actions

Habit Evidence: specific and regular response to a repeated situation
Habit of a Person OR
Routine of a Business
no corroboration required
some personal knowledge required under 602
no eyewitness required
Relevant to prove conduct of person or organization on the event in question

Authentication: evidence sufficient to support a finding that the matter in question is what the proponent claims it is
tangible Objects
serial numbers, specific markings
testimony “pretty sure that was the axe”
Chain of custody
first link in the chain is required
if other links are missing, not sufficient to exclude the evidence as non-authentic
Writings
use of aliases and nicknames in a letter is sufficient to authenticate under 901(b)(4): distinctive characteristics etc.
letterheads can be used to authenticate absent any suspicion
Photographs
must be relevant
witness must be familiar
witness must be familiar with the scene in the photograph at the time of the photograph
witness must testify that the photo is an accurate representation of the scene at the time of the incident
Telephone Conversations
personal phone calls authenticated by circumstances including self-identification
one prior voice identification will suffice
caller I.D. is sufficient
phone records are sufficient
Reply Doctrine applies
Business phone calls can be authentic IF
call made to place of business AND
conversation is business related
Use 901(b)(4) if the elements are not met
Self-Authentication
exhibits need no extrinsic evidence to prove authenticity
introducing party has the burden of production AND
opponent has the burden to persuade the jury that the evidence is not authentic
Demonstrative Evidence
Anything that appeals to the senses: including real Evidence
assistance to the jury
courts are split on whether demonstrative evidence must be accurate

VI.Best Evidence Doctrine

Old Common Law: Largely inapplicable today
original must be produced OR
absence explained
words given special sanctity AND
copies were suspect
Original Required
to prove the contents of a writing, recording, or photograph, the original is required
Original means
writing, recording, or photo itself
Counterpart intended to have the same effect
negative of a photograph OR
Computer printout
Duplicates are admissible as originals UNLESS
general question raised as to authenticity OR
circumstances make it unfair to admit the duplicate
Exceptions
original lost or destroyed
original not obtainable by the court
opponent has the original
original is not required if writing is not closely related to a controlling issue
Inscribed Chattels
evidence can be treated as a writing or a chattel in the discretion of the court
whether evidence is a chattel or writing depends on
what the evidence is offered to prove AND
what is on the chattel or writing
Photographs
originals, not testimony, are required
Sculptures and paintings are not writings

Hearsay: out of court statement offered to prove the truth of the matter asserted by the declarant OR Statement that relies, for its probative value, upon the credibility of a witness who cannot be cross-examined
Rationale
lack of cross, demeanor, and oath
Risks
declarant’s misperception, misstatement, faulty memory, or distortion of issues
Examples of “Truthful” statements: issue is whether Higgins robbed the bank
Truth may be clearly expressed “Higgins did it”
Truth may be an inference directly relating to the matter asserted “Higgins was carrying the bags of money”
Truth may be non-literal “They should lock Higgins away for what he has done”
Old Common Law
Hearsay was
oral or written assertion
assertive conduct OR
non-assertive conduct (two-step-inference)
FRE Definition
Oral or written assertion AND
nonverbal conduct intended as an assertion
Determining Hearsay
Out of court
Statement
oral or written assertion
nonverbal conduct intended as an assertion
statement with performative aspects IF
assertive value outweighs the performative aspects
Offered to prove the truth of the matter asserted [by the declarant] is hearsay
offered for any other purpose is not hearsay
Verbal Acts/ILS
offer and acceptance
State of Mind
i am the pope
Impeachment
show inconsistency in testimony
Verbal Objects
matchbook, engraved mug
Effect on Listener/Hearer
notice, knowledge
Statements excluded from the hearsay definition
Prior Statements By Testifying Witnesses
Prior inconsistent statements
subject to cross
cross=examinable
presently testifies
inconsistent with prior testimony
lack of memory OR
fabricated statement
given at other proceeding
true record of the events that took place
Prior Consistent Statements
subject to cross
consistent statement offered
to rebut allegation of improper influence, motive, or recent fabrication
prior consistent statement must have been made BEFORE the charge of improper influence, motive, or recent fabrication occurred
Statements of Identification
subject to cross
Statement of identification
made after perceiving the person
Admissions
Individual
statement made by party-opponent in individual or representative capacity
personal knowledge not required
drunk
sleeping
seriously injured
nature of injury AND
competency of declarant
guilty pleas regarding same transaction and occurrence but not pleas of no lo contendre
Adoptive
Statement made by another AND
party opponent adopts or believes the statement by his response
Doctrine
party heard the statement
personal knowledge of the statement
circumstances indicate that he would have responded
Exclude if
party did not understand the statement
physical or mental capacity explains lack of reply
speaker was one whom the party would likely ignore
silence after Miranda warnings were, or should have, been given
cannot be used as substantive evidence OR impeachment (Doyle)
Silence can be admission: continuously paying a debt is silent admission that you have a debt
Authorized
person authorized
lawyers authorized to draft pleadings
if they are inconsistent, use 403 balancing to avoid jury confusion of the issues
to make statements on the party’s behalf
pleadings
notices to admit or deny admissible in current action
Answers to prior pleadings admissible in later actions
Jury decides relevancy
no bootstrapping
Agent Admissions
Statement made by party-opponent’s agent
does not apply to government employees, cannot bind the sovereign
concerning matter within the scope of employment
during existence of the relationship
No Bootstrapping
Considerations
coincidence: liability and admissibility rest on determination of whether speaker was party’s agent AND
conflicting outcomes: Judge could find that the speaker was an agent BUT jury could find that speaker was not agent
Co-conspirator Statements
statement made
by a party’s coconspirator
during conspiracy
not after arrest AND
in furtherance of the conspiracy
not after arrest
some states allow statement that cover up conspiracy after it ends
No bootstrapping: independent evidence required apart from statements
Preliminary factual questions of the conspiracy must be established by a preponderance of the evidence
Non hearsay use of verbal act to established transaction (use exception to establish the truth of the matter asserted)

VIII.Exceptions to Hearsay Rule

Unrestricted
Present Sense Impression
statement describing or explaining event or condition
while perceiving event or condition
Rationale
no time to forget or make up a false statement
narrow application—perception of the event only
immediacy is the key
consider necessity
Excited Utterance
startling event or condition
made in reaction or under excitement of event or condition
factors
age (broaden for children)
nature
subject matter of statement
spontaneity
time and place of the statement
Balance reliability and necessity
Consider bootstrapping “I am excited b/c of that event” would not fit exception
Rationale
firmly rooted exception
no real threat of deception
Applied broadly: focuses on reaction to event
Then Existing State of Mind
present statement of present state of mind (physical, emotion, mental)
Does not apply to statements of memory or belief
where past facts are included in the statement
balance probative value of past facts with danger of unfair prejudice
give a limiting instruction
present statements of present state of mind can be used to prove intent, or subsequent conduct of the declarant
hillmon doctrine—subsequent conduct of the declarant only
pheaster—subsequent conduct of the declarant AND 3d party
Alcade—state case: subsequent conduct of the declarant and 3d party IF
declarant dead or otherwise unavailable AND
statement is reliable
Statement To Physicians
Old common law applied to statements of present conditions from declarant to physicians only
FRE broadens
Statement made for purposes of promoting treatment or diagnosis AND
physician reasonably relies on the statement for treatment or diagnosis
statements to physicians identifying assailants not always pertinent to diagnosis or treatment, BUT
read exception broadly for children
Statements need not be made only by declarant and only to physician—as long as made to promote treatment and other party relies on that statement
Past Recollection Recorded
writing admissible to supplement testimony if
witness once had knowledge
near time of the event
witness lacks present recollection
writing is accurate
read into evidence, not received
Judge decides accuracy and admissibility by a preponderance of the evidence

Business Records
record of business
made at time of the event
information in the record transmitted by person with knowledge
regularly kept business, regularly kept record AND
testimony by custodian of the record has circumstantial knowledge of the record keeping system
Public Records
records of public offices or agencies in any form setting forth the following
activities of the office or agency
matters observed pursuant to duty EXCEPT observations of police officers in criminal cases OR
in civil actions OR actions against the government in criminal cases
factual findings from investigation UNLESS
Untrustworthy: Consider—
timeliness
skill and experience
hearing
motivation
Treatises
Authoritative AND
relied on by expert witness on direct OR
used to rebut expert on cross
Read into evidence, not received

Declarant Unavailable
Unavailability required
privilege
refuses to testify despite penalties
lack of memory (can be subject to cross AND unavailable at the same time)
death illness, or infirmity
not subject to subpoena by court
NOT UNAVAILABLE IF
absence procured by the proponent of the statement for purposes of preventing witness from attending or testifying
Good faith effort required
Former Testimony
Declarant gives former testimony given at another hearing AND
party who the statement is now offered against
or in civil actions “predecessor in interest”
means only that the present party gained legal right from the party in the other proceeding
Had opportunity and similar motive to develop the testimony of the unavailable declarant
Always two layers of hearsay
public records exception AND
former testimony exception to prove the truth of the statements
Dying Declaration
homicide case
statement made under belief of impending death
relating to cause of death
consider injury, timing observations by onlookers and declarant him/herself
Statements Against Interests
Statement made that is so far contrary to the declarant’s interest that a reasonable person would not have made the statement unless believed to be true
Must IN FACT be against interests
Person who heard the statement must have personal knowledge
Only portions of statement against interest is admissible: collateral statements inadmissible
Where statement inculpating the declarant tends to exculpate the accused, statement admissible if corroborated
repetition is satisfactory corroboration
Personal or Family History
basic familial information
existing before the controversy
Catchall Provision
If inadmissible under 803 and 804
allow statement if equivalent circumstantial evidence of trustworthiness AND
material fact proven by statement
highly probative on that fact
policy concerns are served by admitting statement
Must give other party notice before using this exception
Double Hearsay
where hearsay within hearsay exists
each part of the combined statement requires an exception

Testimony
Opinion Testimony
helpful to trier of fact AND
rationally based on perception of the witness
Expert Testimony
helpful to trier of fact AND
based on sufficient facts or data
testimony is product of reliable principles AND
witness reasonably applied such principles to the facts of the case

Impeachment
General impeachment of testifying witnesses
Evidence of opinion or reputation of the veracity of the testifying witness
So long as it is probative on the issue of witness’ credibility/veracity
Extrinsic evidence permissible BUT
You cannot bolster the credibility of the witness before credibility is attacked
Prosecution can acknowledge any deals made by its witnesses to take the bite out of evidence
607 allows party to attack credibility of their own witnesses
Impeachment of testifying witnesses with specific instances of conduct resulting in non-conviction
Prior act resulting in non-conviction must be probative on veracity/credibility BUT
Limited to cross examination ONLY
Cannot be proved by extrinsic evidence
Impeachment of testifying witnesses with prior convictions under 609(a)(1)
Non-accused witness CAN be impeached with prior convictions IF
Felony
Within the past 10 years under 609(b)
Later date of conviction or release until present indictment AND
Slightly more probative on veracity/credibility than it is prejudicial (403 Standard)
Accused witness CANNOT be impeached with prior convictions
Even if it’s a felony
Within the past 10 years under 609(b)
Later date of conviction or release until present indictment
IF slightly more prejudicial than probative on veracity/credibility
If the prior crime is similar to the current charge EXCLUDE
If not, consider prior record, veracity of witness, and recency of the prior crime
Impeachment of ANY testifying witness with prior convictions under 609(a)(2) IF:
Prior conviction involved crime of dishonesty or false statement AND
Within the past 10 years under 609(b)
Later date of conviction or release until present indictment
Impeachment by showing Bias
While not specified in the FRE, bias used to impeach testimony is relevant.
Extrinsic evidence showing witness bias is admissible
Common membership in a group (US v. Abel) to show witness’ bias is admissible BUT
Cannot bolster credibility until it is attacked
Prosecution can acknowledge any deals made by its witnesses to take the bite out of evidence
607 allows party to attack credibility of their own witnesses
Impeachment by Showing Defect in Mental Capacity
Defect must be evident at the time of the event
Drunkenness
Emotionally distressed
Privileges
Spousal Testimony
Spousal-WITNESS holds the privilege
Joint Participation Exception
no privilege exists where both spouses are indicted AND neither will cooperate with the prosecution
Spousal Communications
confidential communications between husband and wife alone are admissible
acts not intended to be assertions are not covered by the privilege
where one spouse charges another, the latter cannot block adverse testimony and cannot bar adverse communications
there is no parent-child communication privilege