Relevance Chart (FRE 401 and FRE 403):
Evidence – Spring 2021
Is the evidence admissible?
Does the evidence have any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence? (Logical Relevance-FRE 401-Easy
standard of admissibility: Even slight probative worth of evidence satisfies FRE
401 standard)
NoInadmissible.
YesIs its probative value substantially outweighed by the danger of
unfair prejudice, confusion of the issues, misleading of the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence? (Pragmatic Relevance-FRE 403-Harder standard:
Gives judge broad discretion exclude evidence on account of any
“danger”-but language favors admissibility because it must be
“substantially outweighed” by the “dangers”)
YesInadmissible
NoMay be admissible, but consider the following among other
grounds for exclusion:
See Chart #:
1) Judicial Notice
2) Best Evidence Rule
3) Hearsay
a) Hearsay exclusions: Prior statements of witnesses
b) Hearsay exclusions: Admission by a party opponent
c) Hearsay exceptions
4) Character evidence: (FRE 404): This is not admissible to
prove conduct on a particular occasion except:
a) Character of AccusedChart 4a)
b) Character of VictimChart 4b)
c) Character of Witness (and Impeachment)Chart 4c)
d) Other Crimes, Wrongs, ActsChart 4d)
5) Subsequent remedial measures
6) Expert Testimony
7) Opinion Testimony (and Expert Testimony)
1
Chart 1) Judicial Notice of Adjudicative Facts (FRE 201):
Does the matter concern an adjudicative fact that is not subject to reasonable dispute in
that it is either (1) generally known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned? (FRE 201(a) & (b))
NoThe court may not take judicial notice; consider the general FRE relating to
the admissibility of evidence to prove the fact.
YesNote: Judicial notice may be taken at any stage of the proceeding (FRE
201(f)). A court has discretion to take judicial notice whether requested or not
(FRE 201(c)); and a court must take judicial notice if requested by a party and
supplied with the necessary information. (FRE 201(d))
Note: A party is entitled upon timely request to an opportunity to be
heard as to the propriety of taking judicial notice and the tenor of the
matter noticed. In the absence of prior notification, the request may be
made after judicial notice has been taken. (FRE 201(e))
Has judicial notice been taken in a criminal proceeding?
YesThe court shall instruct the jury that it may, but is
not required to, accept as conclusive any fact judicially
noticed. (FRE 201(g)).
NoThe court shall instruct the jury to accept as
conclusive any fact judicially noticed. (FRE 201(g)).
2
Chart 2) Best Evidence Rule (FRE 1001, 1002, 1003, 1004): Definitions;
Requirement of Original; Admissibility of Duplicates; Admissibility of other
evidence of contents:
Is the evidence being offered to prove the content of a writing, recording, or
photograph? (FRE 1002)
YesIs the original being offered into evidence? (FRE 1002)
YesAdmissible.
NoIs a duplicate (FRE 1001(4): A counterpart produced by the same
impression as the original, or from the same matrix, or by means of
photography, including enlargements and miniatures, or by mechanical or
electronic re-recording, or by chemical reporduction, or by other
equivalent technique which accurately reproduces the original) of the
original being offered into evidence? (FRE 1003)
YesAdmissible, unless (1) a genuine question is raised as to the
authenticity of the original or (2) under the circumstances it would
be unfair to admit the duplicate in lieu of the original. (FRE
1003)
NoHave the originals been lost or destroyed? (FRE 1004(1))
YesOther evidence of the contents is admissible to prove
the writing, recording, or photograph, unless the proponent
lost or destroyed them in bad faith. (FRE 1004(1)).
NoIs the original unobtainable by any available judicial
process or procedure? (FRE 1004(2))
YesOther evidence is admissible to prove the
contents of the writing, recording, or photograph.
NoHas the opponent failed to produce the
document when it was under the opponent’s
control and the opponent was put on notice, by the
pleadings or otherwise, that the contents would be a
subject of proof at the hearing, and that opponent
does not produce the original at the hearing? (FRE
1004(3)
YesOther evidence is admissible to prove
the contents of the writing.
NoOther evidence is not permitted to
prove the writing, unless the writing is
collateral to a controlling issue in the
dispute. (FRE 1004(4)).
3
Chart 3) Hearsay Rule (FRE 801, 802, 803, 804):
Is the statement made by a declarant outside of the trial/hearing and offered in evidence
to prove the truth of the matter asserted? (FRE 801©) (Note: Non-assertive conduct is
not considered hearsay)
NoAdmissible, unless some other rule prohibits its use (e.g. Best Evidence
Rule)
YesThe statement is hearsay, but consider the possible bases for admissibility:
Is there a non-hearsay purpose for the testimony? (impeachment, verbal acts (or
parts of acts), effect on listener/reader, verbal objects, circumstantial evidence of
state of mind of declarant, and circumstantial evidence of memory or belief)
YesPermitted for its non-hearsay purpose, but not permitted to prove
the truth of the matter asserted, unless an exception or exclusion applies;
also consider whether its probative value is substantially outweighed by
unfair prejudice (FRE 403) or whether some other rule would bar its use.
NoDoes a hearsay exclusion apply?
1) Prior statement by witness: Is the statement a prior statement
by the testifying witness who is now subject to cross
examination concerning the statement? (FRE 801(d)(1)3a)
2) Admission by party opponent: Is the statement that is being
offered against a party the party’s own statement, in either an
individual or representative capacity? (FRE 801(d)(2))3b)
NoDoes a hearsay exception apply?
FRE 803 (Hearsay Exceptions: Declarant’s unavailability
immaterial):
1) Present sense impressionSee Chart 3c)
2) Excited utteranceSee Chart 3c)
3) Then existing mental, emotion, or physical
conditionSee Chart 3d)
4) Statements for purposes of medical diagnosis or
treatmentSee Chart 3d)
5) Recorded recollectionSee Chart 3e)
6) Records of regularly conducted activitySee Chart 3e)
7) Absence of entry in regularly kept records or
reportsSee Chart 3e)
8) Public Records or reportsSee Chart 3f)
9) Records of vital statisticsSee Chart 3f)
10) Absence of public record or entrySee Chart 3f)
11) Rules 11-23 not flow-charted.
12) Other exceptionsSee Chart 3g)
FRE 804 (Hearsay Exceptions: Declarant must be
unavailable):
1) Former testimonySee Chart 3h)
2) Statement under belief of impending death3i)
3) Statement against interestSee Chart 3j)
4) Statement of personal/family historySee Chart 3k)
5) Other exceptionsSee Chart 3g)
4
Chart 3a): Hearsay Exclusions: Impeachment of a Witness (FRE 613, 801(d)(1)):
Prior statements of witnesses (for impeachment purposes); Prior statements of
witnesses (for hearsay exclusion):
Is the statement a prior statement by the witness who is presently testifying and who is
now subject to cross-examination concerning the statement? (FRE 801(d)(1))
NoInadmissible unless another exclusion or exception to the hearsay rule
applies.
YesIs the prior statement inconsistent with the declarant’s testimony?
YesWas the prior statement given under oath? (FRE 801(d)(1)(A))
NoAdmissible for impeachment purposes only (FRE 613)
(Note: Extrinsic evidence of a prior inconsistent statement is
admissible ONLY if the witness is afforded an opportunity to
explain or deny the statement and the opposing party is afforded an
opportunity to interrogate the witness thereon, or the interests of
justice otherwise require (FRE 613(b)))
YesAdmissible as proof of the truth of the matter asserted (FRE
801(d)(1)(A).
NoIs the statement consistent with the declarant’s testimony and is it
being offered to rebut a charge of recent fabrication? (FRE
801(d)(1)(B)
YesAdmissible.
NoIs the statement one of identification of a person made after
perceiving the person? (FRE 801(d)(1)©
YesAdmissible.
NoInadmissible, unless another exclusion or exception
to the hearsay rule applies.
5
Chart 3b) Hearsay Exclusions: Admission by a Party Opponent (FRE 801(d)(2)):
Is the statement being offered against a party? (FRE 801(d)(2))
NoInadmissible, unless another exception or exclusion to the hearsay rule
applies.
YesIs the statement the party’s own statement, in either an individual or
representative capacity? (FRE 801(d)(2)(A))
YesAdmissible.
NoIs the statement one that the party has adopted? (FRE
801(d)(2)(B))
YesAdmissible.
NoIs the statement one made by a person authorized by the
party to make a statement concerning the subject? (FRE
801(d)(2)(c))
YesAdmissible.
NoIs the statement one made by the party’s
agent/servant concerning a matter within the scope of the
agency/employment, made during the existence of the
relationship? (FRE 801(d)(2)(D))
YesAdmissible.
NoIs the statement one made by a coconspirator of a party during the course of and in
furtherance of the conspiracy? (FRE
801(d)(2)(E))
YesAdmissible.
NoInadmissible, unless another
exception or exclusion to the hearsay rule
applies.
6
Chart 3c) Hearsay Exceptions: Present Sense Impression; Excited Utterances
(FRE 803(1) and 803(2):
Does the statement relate to or describe an event or condition?
NoInadmissible, unless another exception or exclusion to the hearsay rule
applies.
YesWas the statement made while the declarant was perceiving the event or
condition, or immediately thereafter? (FRE 803(1))
YesAdmissible (as present sense impression).
NoDoes the statement relate to a startling event or condition made
while the declarant was under the stress of excitement caused by the event
or condition? (FRE 803(2))
YesAdmissible (as excited utterance).
NoInadmissible, unless another exception or exclusion to the
hearsay rule applies.
7
Chart 3d) Hearsay Exceptions: Then existing mental, emotional, or physical
condition; Statements for purposes of medical diagnosis or treatment (FRE 803(3),
803(4)):
Is the statement one of the declarant’s then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily
health)? (FRE 803(3))
NoInadmissible, unless another exception or exclusion to the hearsay rule
applies.
YesIs the statement one of memory or belief offered to prove the fact
remembered or believed? (FRE 803(3))
NoAdmissible.
YesDoes the statement relate to the execution, revocation,
identification, or terms of declarant’s will? (FRE 803(3))
YesAdmissible.
NoIs the statement made for purposes of medical diagnosis or
treatment and does it describe medical history, or past or present
symptoms, pain or sensations? (FRE 803(4))
YesAdmissible, if reasonably pertinent to diagnosis or
treatment (FRE 803 (4)).
NoInadmissible, unless another exception or exclusion
to the hearsay rule applies.
8
Chart 3e) Hearsay Exceptions: Writing used to refresh memory; Recorded
recollection; Records of regularly conducted activity; Absence of entry in records;
Public records and reports (FRE 612, 803(5), 803(6), 803(7), 803(8)):
Is the statement a writing, recorded or reported in any form, one of acts, events,
conditions, opinions or diagnosis? (FRE 803(5), 803(6), 803(8))
NoDoes the evidence relate to the absence of an entry in a regularly kept
record or report, in any form, and offered to prove the nonoccurrence or
nonexistence of the matter? (FRE 803(7))
NoInadmissible, unless another exception or exclusion to the hearsay
rule applies.
YesIs the matter of a kind which a memorandum, report, record or data
compilation was regularly made and preserved? (FRE 803(7))
NoInadmissible.
YesAdmissible, unless the sources of information or other
circumstances indicate lack of trustworthiness (FRE 803(7)).
YesIs the writing being used by the witness, either before testifying (if the court
in its discretion determines it is necessary in the interests of justice) or while
testifying, merely to refresh memory? (FRE 612)
YesWriting may be used to refresh recollection, subject to FRE 612’s
requirements (e.g. opp. Party entitledwriting produced, inspect, & C-X).
NoIs the record or report one of a public office or agency? (FRE
803(8))
YesSee Chart 3f).
NoDoes the memorandum or record concern a matter about
which the witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and accurately,
and the memorandum or record was made or adopted by the
witness when the matter was fresh in the witness’ memory and
reflects that knowledge correctly? (FRE 803(5))
YesAdmissible, but the memorandum or record can only
be read into evidence, not itself received as an exhibit
unless offered by an adverse party (FRE 803(5)).
NoWas the record or report of the event made at or near
the time by, or from information transmitted by, a person
with knowledge? (FRE 803(6))
NoInadmissible.
YesHas a custodian or other qualified witness
testified that it was the regular practice of that
organization to make the memorandum, report,
record or data compilation? (FRE 803(6))
NoInadmissible.
YesAdmissible, unless the source of
information or the method or circumstances
of preparation indicates a lack of
trustworthiness (FRE 803(6)).
9
Chart 3f) Hearsay Exceptions: Public Records and Reports; Records of vital
statistics; Absence of public record or entry (FRE 803(8), 803(9), 803(10)):
Is the statement a record or report, in any form, of a public office or agency? (FRE
803(8))
NoDoes the evidence relate to the absence of a public record or entry and is
it offered to prove the nonoccurrence or nonexistence of the matter? (FRE
803(10))
NoInadmissible, unless another exception or exclusion to the hearsay
rule applies.
YesHas evidence been introduced, in the form of a certification in
accordance with FRE 902 or through testimony, that diligent search failed
to disclose the record, report, statement, or data compilation, or entry?
(FRE 803(10)
YesAdmissible.
NoInadmissible.
YesDoes the record or data compilation, in any form, relate to births, fetal
deaths, deaths, or marriages, and was a report thereof made to a public office
pursuant to requirements of law? (FRE 803(7))
YesAdmissible.
NoDoes the record or report set forth the activities of the office or
agency? (FRE 803(8)(a))
YesAdmissible.
NoDoes the record or report contain matters observed
pursuant to duty imposed by law as to which matters there was a
duty to report, or does it contain factual findings resulting from an
investigation made pursuant to an authority granted by laws? (FRE
803(8)(b))
NoInadmissible, unless another exception or exclusion
to the hearsay rule applies.
YesIs the statement being offered against an accused in
a criminal case? (FRE 803(8)(b) & (c))
YesInadmissible.
NoAdmissible, unless the sources of information
or other circumstances indicate lack of
trustworthiness (FRE 803(8)).
10
Chart 3g) Hearsay Exceptions: Other exceptions (FRE 807):
Is the statement one that is not specifically covered by one of the exceptions or
exclusions to the hearsay rule (FRE 803 or 804) but has equivalent circumstantial
guarantees of trustworthiness? (FRE 807)
NoInadmissible.
Yes Is the statement offered as evidence of a material fact; and is the
statement more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts; and are the
general purposes of the FRE best served by admission of the statement into
evidence? (FRE 807(A), (B), and (C))
NoInadmissible.
YesHas the proponent of the evidence made it known to the adverse
party sufficiently in advance of the trial or hearing to provide the
adverse party with a fair opportunity to prepare to meet it, the proponent’s
intention to offer the statement and the particulars of it, including the
name and address of the declarant? (FRE 807)
NoInadmissible.
YesAdmissible (Note: If the declarant has been shown to be
“unavailable” under FRE 804(a), FRE 807 applies; if not, FRE 807
still applies).
11
Chart 3h) Hearsay Exceptions: Former Testimony (FRE
804(a), FRE 804(b)(1)) (Declarant must be unavailable):
Is the statement former testimony given by a witness at another hearing of the same or a
different proceeding or in a deposition taken in compliance with law? (FRE 804(b)(1))
NoInadmissible, unless another exception or exclusion to the hearsay rule
applies.
YesIs the declarant “unavailable” (FRE 804(a): (1) Is exempted by ruleing of
the court on the ground of privilege of testifying concerning thee subject matter of
the declarant’s statement; or (2) persists in refusing to testify concerning the
subject matter of the declarant’s statement despite a court order to do so; or (3)
testifies to a lack of memory of the subject matter of the declarant’s statement; or
(4) is unable to be present or to testify at the hearing because of death or then
existing physical or mental illness or infirmity; or (5) is absent from the hearing
and the proponent of his statement has been unable to procure the declarant’s
attendance (or in the case of a hearsay exception under FRE 803(b)(2), (3), or (4),
the declarant’s attendance OR testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if his exemption, refusal, claim of lack
of memory, inability, or absence is due to the procurement or wrongdoing of the
proponent of a statement for the purpose of preventing the witness from
testifying)
NoInadmissible, unless another exception or exclusion to the hearsay
rule applies.
YesDid the party now opposing the testimony (or, in a civil action, a
predecessor in interest) have an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination in the
former proceeding? (FRE 804(b)(1))
YesAdmissible.
NoInadmissible, unless another exception or exclusion to the
hearsay rule applies.
12
Chart 3i) Hearsay Exceptions: Statement Under Belief of Impending Death (FRE
804(a) and 804(b)(2)):
Was the statement made by a declarant while under the belief that his death was
imminent? (FRE 804(b)(2))
NoInadmissible, unless another exception or exclusion to the hearsay rule
applies.
YesIs the declarant “unavailable” (FRE 804(a))
NoInadmissible, unless another exception or exclusion to the hearsay
rule applies.
YesIs the statement being offered in a prosecution for homicide or in
a civil action or proceeding? (FRE 804(b)(2))
NoInadmissible, unless another exception or exclusion the the
hearsay rule applies.
YesDoes the statement concern the cause or circumstances of
what the declarant believed to be his impending death? (FRE
804(b)(2))
YesAdmissible.
NoInadmissible, unless another exception or exclusion
to the hearsay rule applies.
13
Chart 3j) Hearsay Exceptions: Statement Against Interest (FRE 804(a), 804(b)(3)):
Is the statement one which was, at the time of its making, so far contrary to the
declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to
civil or criminal liability, or to render invalid a claim by the declarant against another,
that a reasonable person in the declarant’s position would not have made the statement
unless believing it to be true? (FRE 804(b)(3))
NoInadmissible, unless another exception or exclusion to the hearsay rule
applies.
YesIs the declarant “unavailable” (FRE 804(a))
NoInadmissible, unless another exception or exclusion to the hearsay
rule applies.
YesDoes the statement tend to expose the declarant to criminal liability
and is it offered to exculpate the accused? (FRE 804(b)(3))
NoAdmissible.
YesInadmissible, unless corroborating circumstances clearly
indicate the trustworthiness of the statement (FRE 804(b)(3)).
14
Chart 3k) Hearsay Exceptions: Statement of Personal or Family History (FRE
804(a) and 804(b)(4)):
Does the statement concern the declarant’s own birth, adoption, marriage, divorce,
legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar
fact of personal or family history, even though declarant had no means of acquiring
personal knowledge of the matter stated? (FRE 804(b)(4))
NoDoes the statement concern one of the foregoing matters, or death, of
another person and the declarant was related to that person by blood, adoption,
or marriage or was so intimately associated with the other’s family as to be
likely to have accurate information concerning the matter declared? (FRE
804(b)(4)(B))
NoInadmissible, unless another exception or exclusion to the hearsay
rule applies.
YesIs the declarant “unavailable”? (FRE 804(a))
YesAdmissible.
NoInadmissible, unless another exception or exclusion to the
hearsay rule applies.
YesIs the declarant “unavailable”? (FRE 804(a))
YesAdmissible.
NoInadmissible, unless another exception or exclusion to the hearsay
rule applies.
15
Chart 4) Character Evidence (FRE 404, 405, 406):
Does the evidence relate to Character, Other Crimes, Wrongs, Acts, or Habits? (FRE
404)
Is character specifically at issue in the case? (FRE 405)
YesAdmissible, and may show specific acts (FRE 405(b))
NoIs it evidence of the habit of a person or of the routine practice of
an organization? (FRE 406)
YesAdmissible.
NoConsider other possible permissible uses of characterrelated evidence
Character of Accused?Chart 4)a)
Character of Victim?Chart 4)b)
Character of Witness?See Chart 4)c)
Other Crimes, Wrongs, or Acts?See Chart 4)d)
16
Chart 4)a) Character of Accused (FRE 404(a)(1), 405(a)):
Is it evidence of a pertinent trait of the character of the accused offered by the accused,
or by the prosecution to rebut the same? (FRE 404(a)(1)
YesAdmissible, but only through reputation or opinion testimony; specific acts
may only be inquired into on cross-examination (FRE 405(a)).
NoConsider other permissible uses of character-related evidence:
Character of VictimChart 4)b)
Character of WitnessChart 4)c)
Other Crimes, Wrongs, or Acts?Chart 4)d)
17
Chart 4)b) Character of Victim (FRE 404(a)(2) and 412):
Is it evidence of a pertinent trait of the character of the victim offered by the D or by the
prosecution to rebut the D’s evidence concerning the victim’s character or evidence of a
character trait of peacefulness of the alleged victim offered by the prosecution in a
homicide case to rebut evidence that the alleged victim was the first aggressor? (FRE
404(a)(2)
NoConsider other permissible uses of character evidence:
Character of AccusedChart 4)a)
Character of WitnessChart 4)c)
Other Crimes, Wrongs, or ActsChart 4)d)
YesDoes the civil or criminal matter involve an alleged sex offense?
NoAdmissible in criminal cases and, in accordance with some case-law,
civil matters that are analogous to criminal allegations.
YesIs the evidence of specific instances of sexual behavior by the
alleged victim?
NoReputation and opinion evidence regarding the sexual
behavior of an alleged victim is not admissible, except in civil
cases where the alleged victim has placed his or her reputation in
controversy (FRE 412, 412(b)(2)).
YesIn offering the evidence, has the D complied with the
procedural requirements of the Rule? (FRE 412(C))
NoInadmissible.
Yes(1) Is the evidence offered to show past sexual
relations with others on the issue of whether the accused
was the source of semen or injury? (FRE 412(b)(1)(A)) or
(2) Is the evidence offered to show past sexual relations
with the accused to show consent? (FRE 412(b)(1)(B)
YesIs the evidence offered in a criminal
prosecution?
YesAdmissible.
NoIn civil cases, the evidence is
admissible if the probative value of the
evidence substantially outweighs the
danger of harm to any [alleged] victim and
of unfair prejudice to any party. (FRE
412(b)(2))
NoIs the evidence offered in a criminal
prosecution?
YesDoes the Constitution require the
evidence to be admitted? (FRE
412(b)(1)(C))
YesAdmissible.
NoInadmissible.
NoInadmissible.
18
Chart 4)c) Character of Witness and Impeachment (FRE 403, 608, 609):
Evidence of Character and Conduct of Witness; Impeachment by Evidence of
Conviction of Crime:
Is it evidence of prior bad acts or conviction(s) introduced to impeach the witness? (FRE
608 and 609) (Note: Prior bad acts and evidence of prior convictions may not be used as
substantive evidence to show conduct in conformity therewith, unless the evidence is
admissible independently for such purposes (FRE 404(b)))
YesIs it evidence of a conviction punishable by death or imprisonment in
excess of one year or evidence of a conviction involving false statement or
dishonesty (FRE 609(a)(1) and (2))
NoReputation for truthfulness/untruthfulness may be admitted for any
witness (FRE 608(a)(1)). However, evidence of truthfulness can only be
introduced once credibility of the witness has been attacked (FRE
608(a)(2)). Note: FRE 403’s balancing test applies.
Specific instances of conduct bearing on a witness’ credibility may be
inquired into on cross-examination, but may not be proven by extrinsic
evidence (FRE 608(b)). Note: FRE 403’s balancing test applies.
YesIs it a conviction involving dishonesty or false statement (crimen
falsi) (FRE 609(a)(2)?
YesHas more than 10 years elapsed since the date of conviction
or of the release of the witness from confinement imposed for that
conviction? (Choose the later date) (FRE 609(b))
YesInadmissible, unless its probative value substantially
outweighs its prejudicial effect and proper notice is given.
(FRE 609(b)).
NoAdmissible (FRE 609(a)(2)): Note: FRE 403’s
balancing test does not apply here.
NoIs the witness also the accused?
YesDoes its probative value outweigh its prejudicial
effect (FRE 609(a)(1))?
YesAdmissible (Note: 10 year rule of FRE
609(b) applies here.
NoInadmissible.
NoIs it probative value substantially outweighed by
unfair prejudice? (apply the FRE 403 balancing test) (FRE
609(a)(1))
YesInadmissible.
NoAdmissible (Note: 10 year rule of FRE
609(b) applies here.
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Chart 4)d): Other Crimes, Wrongs, or Acts? (FRE 104(b), 403, 404(b), 413, 414,
415): Relevancy conditioned on fact; Other crimes, wrongs, or acts; Evidence of
similar crimes in sexual assault cases; Evidence of similar crimes in child
molestation cases; Evidence of similar acts in civil cases concerning sexual assault or
child molestation:
Is it evidence of other crimes, wrong or acts, offered to prove the character of a person
in order to show action in conformity therewith in this case (FRE 404(b))
YesInadmissible for this purpose; consider permissible uses of character-related
evidenceCharacter of Accused (Chart 1a), Character of Victim, Character of
Witness (Chart 1c)
NoIs it evidence of specific acts to show motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident? (FRE
404(b))
YesAdmissible, if a reasonable jury could find the existence of the
extrinsic offense (FRE 104(b) and its probative value is not substantially
outweighed by unfair prejudice (FRE 403).
NoIs it evidence of similar crimes, wrongs or acts offered in a case
involving sexual assault or child molestation?
NoInadmissible.
YesIs it offered against the accused in a criminal prosecution?
YesDoes the prior similar offense meet the respective
standard of an “offense of sexual assault” (FRE 413(d)(1)(5))?
NoInadmissible.
YesAdmissible.
NoIn civil cases, has the party offering the prior similar
act complied with the procedural requirements of FRE
415(b)?
NoInadmissible.
Yes Does the prior similar offense meet the
respective standard of an “offense of sexual
assault” (FRE 413(d)(1)-(5))?
NoInadmissible.
YesAdmissible.
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Chart 5) Subsequent Remedial Measures (FRE 407):
Does the evidence relate to measures taken after an event that, if taken before the event
in question, would have made the event less likely to occur? (FRE 407)
NoAdmissible.
YesIs the evidence being offered for another purpose, such as proving
ownership, control, or feasibility of precautionary measures, if these are
controverted, or for impeachment? (FRE 407)
YesAdmissible.
NoInadmissible.
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Chart 6) Expert Testimony (FRE 104(a) and 702):
Is the testimony offered as the testimony of an expert witness?
Is the expert qualified by knowledge, skill, experience, training or education?
(FRE 702)
NoInadmissible.
YesIs the subject of the expert testimony scientific?
NoDoes the testimony concern technical or other specialized
knowledge that will assist the trier of fact to understand the
evidence or determine a fact in issue? (FRE 702)
NoInadmissible, unless the opinion is admissible as lay
opinion under FRE 701.
YesIs the basis for the expert opinion valid? The judge
must find that validity is supported by a preponderance of
proof. (FRE 702; 104(a))
NoInadmissible.
YesAdmissible, unless its probative value is
substantially outweighed by unfair prejudice.
(FRE 403).
YesWill the scientific testimony assist the trier of fact to
understand the evidence or determine a fact in issue and are the
priniciples and methodology upon which the scientist bases his
testimony valid? The judge must find that validity is supported by
a preponderance of proof. In making this determination, the
judge should consider (1) whether the basis for the testimony has
been tested; (2) the error rate associated with the evidence; (3)
whether the research supporting the expert opinion has been
published in peer reviewed journals; and (4) whether the scientific
basis for the opinion is generally accepted in the pertinent field.
(FRE 702; 104(a); see Daubert)
NoInadmissible.
YesIs the testimony in the form of an opinion?
YesSee Chart 7 (Opinion and Expert
Testimony).
NoAdmissible, unless its probative value is
substantially outweighed by unfair prejudice (FRE
403).
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Chart 7) Opinion and Expert Testimony: Opinion Testimony by Lay
Witnesses; Testimony by Experts; Bases of Opinion Testimony by
Experts; Opinion on Ultimate Issue (FRE 701, 702, 703, 704):
Is the testimony in the form of an opinion (FRE 701)
Is the opinion one that is rationally based on the perception of the witness and
would be helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue? (FRE 701)
YesAdmissible.
NoIs the witness qualified to testify as an expert witness on an issue
that is properly the subject matter of expert testimony? (FRE 702-See
Chart 6 for proper query)
NoInadmissible.
YesIs the opinion based on facts or data of a type reasonably
relied upon by experts in the particular field? (FRE 703)
NoInadmissible.
YesIs the opinion on an ultimate issue? (FRE 704)
NoAdmissible.
YesAdmissible, unless the expert witness is
testifying with respect to the mental state or
condition of a D in a criminal case as to whether
the D did or did not have the mental state or
condition constituting an element of the crime
charged or of a defense thereto (FRE 704).
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